Mon, 24 Jun 2013
By Fatim Kurji
On 23rd April 2013 the Gazette of India published the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The legislation comes some sixteen years after the landmark judgment in the case of Vishaka v State of Rajasthan (AIR 1997 Supreme Court 3011), which set out the principle of gender equality in the workplace and established mandatory guidelines governing how employers are to deal with sexual harassment complaints.
The Vishaka Ruling
For the first time the Court in Vishaka recognised that sexual harassment in the workplace is a human rights violation under India’s Constitution and the Convention on the Elimination of All Forms of Discrimination Against Women. In particular, sexual harassment in the workplace violates a woman’s fundamental right under Article 19(1)(g) of the Constitution to ‘practice any profession or to carry out any occupation, trade or business’. The Supreme Court noted that:
“In view of … the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Art. 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Art 141 of the Constitution”.
In this way, the Supreme Court in Vishaka set down mandatory guidelines to ‘prevent or deter the commission of acts of sexual harassment and to provide procedures for the resolution, settlement or prosecution of acts of sexual harassment’. These included requiring employers to formulate policies and processes to address sexual harassment grievances, and to assist complainants in enforcing the right to gender equality.
The 2013 Act
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 codifies these guidelines. The preamble to the Act explains its purpose as ‘An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.’ The reach of the 2013 Act is explicitly wide, as illustrated by its definitions:
- The definition of ‘sexual harassment’ includes ‘any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely –
(i) Physical contact and advances; or
(ii) A demand or request for sexual favours; or
(iii) Making sexually coloured remarks; or
(iv) Showing pornography; or
(v) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
- The definition of an ‘aggrieved woman’ in relation to a workplace is ‘…a woman, of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment by the Respondent.’
- The definition of ‘employer’ is:
(i) In relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;
(ii) In any workplace not covered by sub-clause (i), any person responsible for the management, supervision and control of the workplace
- The definition of ‘workplace’ is:
(i) Any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed b funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
(ii) Any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service.
(v) Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.
So sweeping are these definitions that almost every type of business or organisation are brought within the scope of the Act and, importantly, the protection afforded by the legislation is not limited to permanent employees; temporary workers and contractors are also covered.
The Internal Complaints Committee
Section 4 of the 2013 Act requires employers to establish an Internal Complaints Committee (“ICC”). In order to comply, employers will have to:
(i) Formalise in writing the creation of the ICC
(ii) Ensure the composition of the ICC includes the following:
- A Presiding Officer who is a woman employed by the employer at a senior level
- Two Members who are ‘preferably committed to the cause of women or who have experience in social work or have legal knowledge’
- One Member from NGOs/associations ‘committed to the cause of women or a person familiar with the issues relating to sexual harassment’
(iii) Ensure that at least half of the composition of the ICC is female
The purpose of the ICC is to hear complaints of sexual harassment from aggrieved women. If the complainant so requests, the employer may also attempt conciliation. If there is no such conciliation, the employer is obligated to investigate the matter and, if a prima facie case exists, to report it to the police within 7 days of the complaint being made. The ICC also has powers to made recommendations, including transfer or paid leave while the investigation is ongoing, which the employer must comply with.
If the ICC concludes that the aggrieved woman’s complaint is upheld, it must make a recommendation to the employer of one of the following:
(i) That the employer take action against the respondent for misconduct
(ii) To deduct such sum as the ICC considers fit from the Respondent’s wages to be paid to the aggrieved woman
The determination of the compensation payable is dependent on the nature of each complaint, and takes into account the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman, the loss in her career opportunities, any medical expenses incurred as a result of the harassment, the income and financial status of the respondent and the feasibility of such payment in lump sum or instalments. The employer must then act upon this recommendation within 60 days.
If the ICC concludes that ‘the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has produced any forged or misleading document’ it may recommend that the employer take action against the aggrieved woman
The 2013 Act is clearly a response by the Indian Government to the increasing public anger and international concern over the incidents of rape across and violence against women across the India, and to that end is a step in the right direction.
However, as is so often the case, many have complained that the legislation does not go far enough. One source of concern is that it is unclear whether the conciliatory step is truly optional, or whether employers may pressure aggrieved women to accept settlements in order to dispose of a complaint more quickly. Additionally, the level of any compensation is determined by taking into account the means of the offender meaning that similar offences committed by employees with different means may yield very different results. Finally, although the intention is that may only be taken against an aggrieved woman who makes a malicious or false complaint, women may still be concerned that the inability to prove their allegation may result in action taken against them, disincentivising them from bringing their complaints in the first place.
Perhaps the biggest concern though is that the sanction against employers who fail to constitute an ICC or make proper inquiries into complaints is a fine which ‘may extend to fifty thousand rupees’ (USD$1,000). For many employers, especially those with deep pockets and a small number of female employees, the fine may not be enough of a stick to ensure compliance. In particular, the composition requirements for the ICC, especially including external parties which may require remuneration, may be daunting for smaller businesses, and other may simply not wish third parties to be aware of their internal matters.
In addition, whilst the protection of women in the workplace is a laudable objective, anti discrimination legislation is usually gender neutral, but the 2013 Act is only intended to provide protection for women. Male employees subjected to the same behaviour will not have any protection.
Although the 2013 Act is an important signal to employers that the Indian Government does take gender equality in the workplace seriously, there is still a long way to go before the gender gap begins to close in India.
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