With the recent examples of harassment charges against journalist Tarun Tejpal and supreme court retired judge A K Ganguly, the issue that most companies choose to ignore has come to the fore. Even in Namma Bengaluru, there are hundreds of such cases that go unreported for various reasons.
These are high profile personalities – but what about the millions of others working in various offices across cities, towns and villages in India? Are they aware of their rights? What constitutes sexual harassment at the workplace? Are they aware that there are clear work and personal boundaries? How can a woman subjected to sexual harassment and discrimination seek action at her workplace itself?
Women have the right to carry on any trade and occupation in a dignified and respectable manner anywhere in India, according to Article 15 and 21 of the Indian Constitution.
Two decades ago, in 1993, India ratified Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to eliminate discrimination against women in the field of employment and to ensure equality of men and women.
SC comes up with Vishakha guidelines
But it was in 1997 that that ‘Vishaka Guidelines’ were formulated under the Chief Justice Verma, when a critical case of Bhanwari Devi, a gang-raped social worker, reached the Supreme Court.
In September 2013 the Central Government introduced a gender-neutral sexual harassment provision in the Indian Penal Code and codified the Vishaka guidelines into a women-centric law that goes an extra mile in safeguarding women. The act is called the Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act 2013.
The Act and Section 354A (by the Criminal law Amendment act 2013) of IPC defines Sexual Harassment as any physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favors; or making sexually colored remarks; or forcibly showing pornography; or any other unwelcome physical, verbal or nonverbal conduct of sexual nature.
In addition to this, the act also makes provisions for punishment in the following circumstances:
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Implied or explicit promise of preferential treatment in employment
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Implied or explicit threat of detrimental treatment Implied or explicit
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Implied or explicit threat about the present or future employment status
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Interference with her work or creating an intimidating or offensive or hostile environment for her
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Humiliating treatment likely to affect her health or safety
Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013
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Employers in the public or private sector to take appropriate steps to prevent sexual harassment such as:
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By notifying, publishing and circulating the definition of sexual harassment in the organisation
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Rules and regulations applicable to the public or private sector with the applicable penalties
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Avoid the creation of a hostile environment for women
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Criminal proceedings to be initiated against the offender under IPC or any other law; the victims can also seek transfer of the offender or their own transfer.
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Regardless of the gravity of offence, if there is a breach in law or service rules, an appropriate mechanism should be created in the organization for redress of the complaint made by the victim.
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The complaint mechanism to provide a Complaints Committee, a special counselor or other support service and maintain confidentiality of the complaint.
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A woman should head the Complaints Committee and not less than half of its member should be women
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To prevent the possibility of any pressure or influence from senior level in which case a third party, NGO or other body familiar with the issue of sexual harassment is to be involved.
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The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers’ report, including the Complaints Committee report, to be submitted to the Government department.
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Employees to raise issues of sexual harassment at workers’ meeting and Employer-Employee Meetings
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Employer to take up preventive action in case of omission/ harassment by a third party
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The guidelines shall not prejudice any rights available under the Protection of Human Rights Act, 1993.
These were the part of Vishakha Guidelines too. The 2013 act only codifies these guidelines and defines ‘employer’, ‘employee’ and ‘workplace’. Employers include any government or private undertaking and unorganized sectors; the act also provides relief to domestic workers.
Mechanism under the act
Every employer must form an Internal Complaints committee with a woman among the senior-level employees as Presiding Officer. The Presiding Officer can be removed from her position when she contravenes with the provisions of this act.
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At least half the nominated number of members should be a woman.
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In case the workplace has less than ten employers and no Internal Complaints committee, the District Officer will constitute a Local Complaints committee in every district. He will also appoint a nodal officer in every taluk or ward or municipality to collect complaints from workplaces and forward it to the Local Complaints committee. The chairperson of the Local Complaints committee shall also be a woman, preferably a social worker. Of the other women nominated for the committee, one must be from SC/ST/OBC.
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The aggrieved woman must in writing submit the complaint to the Internal Complaints committee within three months from the date of incident. The act has introduced ‘Conciliation’ among the parties to settle the matter if the victim consents to it. It’s made clear that monetary settlement shall not be made the basis for conciliation. The act gives both the victim and perpetrator a chance to speak up while the investigations are ongoing. In the case where the woman is unable to make the complaint due to physical or mental incapability, with her written consent, family or friend or a qualified person can make the complaint.
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It also provides an interim relief while the investigation is pending, by transferring the victim or the perpetrator or grant the victim leave up to three months or any other relief as the case demands.
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Inquiry has to be completed within ten days from the date of complaint and a report of the inquiry is to be submitted to the employer and both the parties. Any deductions can be made by the employer from the perpetrator’s salary to pay to the victim as compensation or her legal heir. The employer is to act on the report’s recommendations within sixty days.
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Malicious complaints by women are punishable after an enquiry is initiated. In case of a malicious complaint, the complainant will face the same action recommended for the perpetrator. Adequate proof should be available for initiating enquiring without prejudicing a woman’s interest.
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Compensation to women is determined based on the physical, psychological and financial distress faced by women; also the status of the perpetrator is kept in mind to avoid unnecessary hindrances like extortion. Confidentiality of the complaint and the details in the complaint of the aggrieved woman shall also stay intact.
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The act also encourages the duties of the employer like raising awareness amongst employees and avoiding hostility in a woman’s environment. The employer is also required to display the sexual harassment act 2013 in all the conspicuous places in the workplace for educating employees.
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If the employer doesn’t constitute the Internal Complaints committee or fails to take an action with respect to a complaint, he/she will be punishable with fine up to fifty thousand rupees.
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Criminal justice system is governed by punishing the perpetrator by incarcerating him for the wrongdoing. So the victim can initiate action under IPC or any other law in force.
An informal chat with a few men and women working in the private sector threw up the following observations:
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Most MNCs had some guidelines already in place.
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Awareness was created during orientation after recruitment and the information was available on the intranet.
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Some companies had refresher trainings while others sent regular mailers and necessary information.
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In some cases though, employees were not aware of such a policy. In one case an employee was let go and in another case an employee proved he was innocent.
- After the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 was notified on December 9, 2013, these companies will be relooking at their policies and make inclusions wherever necessary.
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