Several of the famous people in India have been found to be involved in the Sexual Harassment cases in India like Phaneesh Murthy director of Infosys, Tarun Tejpal editor in chief of Tehelka Magazine, RK Pachauri recently and the latest to get into the imbroglio is TVF’s CEO Arunabh Kumar.
Let us have a look at the Supreme Court guidelines, laws relating to the issue in India.
- The Supreme Court in 1997 in the case of Vishakha vs. state of Rajasthan provided the first authoritative decision of ‘sexual harassment’ in India; and confronted with a statutory vacuum, it went creative and proposed the route of ‘judicial legislation’.
- It laid down the requirements for employers dealing with complaints of sexual assault and stipulated the formation of committees to dispose of complaints from victims of harassment. These guidelines came to be known as Vishakha Guidelines.
Definition of Sexual Harassment as defined by the court:
- Anything at work that can place the working woman at disadvantage compared to other male employees in her official career just because she is a woman – can be termed as sexual harassment.
- Unwelcome sexually determined behaviour & demands from males employees at the workplace, such as:
- any physical contacts and advances,
- sexually coloured remarks,
- showing pornography,
- passing lewd comments or gestures,
- sexual demands by any means,
- any rumours/talk at the workplace with sexually coloured remarks about a working woman, or
- Spreading rumours about a woman’s sexual relationship with anybody.
Below are some of the general points of the Vishakha judgment: (Full judgement here)
- Gender equality includes protection from sexual harassment and the right to work with dignity as per our constitution.
- Extra hazard for a working woman compared her male colleague is a clear violation of the fundamental rights of Gender Equality & Right to Life and Liberty.
- In no way should working women be discriminated at the workplace against male employees (If a woman is, then it must be documented in company policies, for example, limitation of women in police and armed forces.)
- Safe working environment and working with full dignity is the fundamental right of working women. The right to work as an inalienable right of all working women.
- SC also recommended a Complaints Committee at all workplaces, headed by a woman employee, with not less than half of its members being women. All complaints of sexual harassment by any woman employee would be directed to this committee.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
- This Act seeks to protect women from sexual harassment at their place of work superseding the Vishakha Guidelines introduced by the Supreme Court.
Major Features of the Act
- It also provides safeguards against false or malicious charges.
- The Act also covers concepts of ‘quid pro quo harassment’ and ‘hostile work environment’ as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment.
- While the “workplace” in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve telecommuting will get covered under this law.
- Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
- The Complaints Committees have the powers of civil courts for gathering evidence.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.
- The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
- The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality.
- The Act requires employers to conduct education and sensitisation programmes and develop policies against sexual harassment, among other obligations.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.
- The Government can order an officer to inspect workplace and records related to sexual harassment in any organisation.
Criticism of the Act
- The implementation of the law remains heavily skewed in favour of the harasser. In many instances, the strongest penalty molesters may face is his contract being terminated.
- His next employer will probably have no clue about the recruit’s record. There is little data on the number of cases that have eventually reached the district officer in order to have penal action initiated against the harasser.
- The Act doesn’t cover the members of the Armed Forces and agricultural workers who form the majority of the workforce.
Way Forward and Conclusion
Not just a healthy balance sheet but a healthy and free work environment is most is the hallmark of a successful company, but the 2015 FICCI report found that 36% of all companies were still not in compliance with the Act.
Even in the TVF’s case, it is apparent that the company did not create an environment that encouraged women to file complaints about being molested. Former employees had to take to social media to highlight problems that should, under normal circumstances, have been dealt with by internal institutional mechanisms.
- The process of making sexual harassment complaints should be simplified.
- Provisions under the law that mandate that the investigation should be completed within 90 days should be strictly adhered to.
- On the part of the government, it is important to ensure that companies are penalised if they fail to implement the law.
- If harassment laws are to be taken seriously, workplace audits should be as big a priority as auditing the finances of the company.
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- Though the legislation has superseded the Vishakha Guidelines by SC, the implementation of the Sexual Harassment law hasn’t been done in its spirit. Comment.