In the wake of increasing instances of sexual offenses at women through the globe, employers have a greater role to play and responsibility to provide a safe and secure workplace for women employees. With employees spending a greater part of their day at work, it is imperative that women employees are provided with a safe and secure work environment in order to achieve women empowerment. In India, the enactment of a special statute in 2013 provides for a mechanism for prevention of sexual offenses against women at workplace. However, the legal position prior to 1997 was quite different wherein a person facing sexual harassment at workplace had to lodge a complaint under Section 354 of the Indian Penal Code 1860 that deals with the ‘criminal assault of women to outrage women’s modesty’, and Section 509 that punishes an individual/individuals for using a ‘word, gesture or act intended to insult the modesty of a woman.
It was only during the 1990s that when a Rajasthan state government employee Bhanwari Devi who tried to prevent child marriage as part of her duties as a worker of the Women Development Programme was raped by the landlords of the community. The feudal patriarchs who were enraged by her (in their words: “a lowly woman from a poor and potter community”) ‘guts’ decided to teach her a lesson and raped her repeatedly. The rape survivor did not get justice from Rajasthan High Court and the rapists were allowed to go free. This enraged a women’s rights group called Vishaka that filed a public interest litigation in the Supreme Court of India. The Vishaka Judgment is the expansive interpretation given to Article 19(1)(g) of the Constitution of India, in so far as Sexual harassment of women at the Workplace has been held to be in violation of the Fundamental freedom of all Women as citizens to pursue the business, trade or profession of one’s choice.
Following the guidelines of Supreme Court in the Landmark Vishaka case, The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (Act of 2013), which is the special law, received the assent of the President on 22-04-2013 and published in the Gazette of India (Pt. II, S.1) dated 22-04-2013. While it is common for most of the Acts of India to become inapplicable to Jammu & Kashmir, this Act as an exception has been made applicable to the whole of India. This act also aims to provide a broader interpretation to the definition of “sexual harassment” at workplace, given greater emphasis to the perception of women in what deciding what constitutes a harassment. It is often agitated that women-centric laws are biased and prone to abuse of process of law against the opposite sex, but on the contrary, this act aims to strike a balance between achieving the legislative intent and scope of abuse by prescribing stringent punishment for false and frivolous complainants (women).
What is a sexual harassment?
According to this act, Sexual Harassment – Includes any one or more of the following unwelcome acts or behavior (whether directly of by implication) namely,
a) Physical Contact and advances; or
b) A demand or request for Sexual favors; or
c) Making sexual coloured remarks; or
d) Showing pornography; or
e) Any other unwelcome physical, verbal or non-verbal conduct of Sexual nature.
This Act offers relief to a person who is not an employee and includes such person within the meaning of an aggrieved woman. In simple terms, in addition to the above definitions, an act of harassment is an unwelcomely act committed by a person against a woman against her wish and consent, whether sexual or non-sexual in nature.
What is a workplace?
The Act of 2013 provides a definition for workplace and includes all sizes and types of work environment within its meaning of “Workplace”.
a) Any department, organization, undertaking, establishment, enterprises, institution and offices financed by funds provided directly or indirectly by Government or Local Authority or Government company or Corporation or Cooperative Society etc.
b) Any private sector organization, Nongovernmental organization, industrial institution, Educational Institutions etc.
c) Hospital or Nursing Home
d) Any sports institutions, stadium, training center of sports etc.
e) 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.
f) A dwelling place or House.
What must every Employer follow?
This act mandates that every employer having more than 10 women employees constitute an internal complaints committee in consisting of following members nominated by the employer,
a) Presiding officer who shall be a Woman employed at senior level at the workplace from amongst the employees. In case if senior-level woman employee is not available at workplace then Presiding officer can be nominated by other office or administrative units. In case other office or administrative units of the workplace do not have a senior level woman employee, the Presiding officer shall be nominated from any other workplace of the same employer or other departments or organization.
b) Not less than 2 members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
c) 1 member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. Provided that at least one-half of the total Members so nominated shall be women.
What is the penalty for non-compliance?
This Act provides for a more stringent penalty provisions which prescribes punishment varying from Rs. 50,000/- for the first instance to cancellation of license to run the business.
It is important to have an internal complaints committee constituted in every workplace that meets the 10-women-employee-strength criterion to avoid prosecution under the Act of 2013.
Please contact us should you require us to brief your employees on the awareness of this act as well as help you in constituting an internal complaints committee.