ANALYSIS OF THE SEXUAL HARASSMENT OF WOMEN
ANALYSIS OF THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
Sexual harassment of women at workplace is a kind of prevalent evils in the society. In the developed or developing nations, both men and women are at work. But this fact is not hidden that the gender discrimination has still space in the minds of the people. The mentality of people is still to go along way. Some people at workplace try to exploit women by either blackmailing them or through verbal sexual comments and make them feel uncomfortable in their workplace. The constitution of our India guarantees us the right to equality under article 14. But what will be the use of legal provisions if they are vague and a mere paper work.
With the passage of time, as more and more women started to become working women. Sooner or later in their workplace, such incidents of sexual harassment started taking place.
The need for such law was observed for the first time in the case of VISHKA V. STATE OF RAJASTHAN, the problem was addressed and the Hon’ble court laid down laws and made amendments as per the prevailing situation to curb the evil of sexual harassment.
And after 16 years of this case, this act of sexual HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 came into force on 26 February, 2013 with an aim 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.
According to section-2(n) of the act, sexual harassment includes physical contact and advances, a demand or request for sexual favours, making sexually coloured remarks, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
All these acts constitute sexual harassment, if the employer or employee/co-workers does any of these acts, then that person will become liable for sexual harassment as per the act.
WHO IS AN AGGRIVED PERSON?
According to section-2(a), aggrieved women mean-
In case of workplace, a woman of any age whether employed at that place or not have alleged that she has been subjected to sexual harassment by the respondent will be considered as aggrieved person
In case of dwelling place or house, a woman who is employed at that dwelling place.
WHICH CIRCUMSTANCES WILL LEAD TO SEXUAL HARASSMENT?
According to section-3, if any act occurs or is present in relation to or is connected to any act of sexual harassment, then it may amount to sexual harassment -
If there is an implied or explicit promise of preferential treatment in her employment by the employer.
If there is an implied or explicit threat of detrimental treatment in her employment.
If there is any implied or explicit threat about her present or future employment status.
any interference with her work or creating an intimidating or offensive or hostile work environment for her at the workplace.
if woman has gone through humiliating treatment that is likely to affect her health or safety.
CONSTITUTION OF INTERNAL COMPLAINT COMMITTEE
Section-4 of the act makes it mandatory for every employer of the workplace to constitute an internal complaint committee. Moreover, where the administrative units or offices of workplace are at different locations, then the committee should be constituted at every office or administrative unit.
Members of the committee-
All the members of the committee are to be nominated by the employer and those members are-
(a)The member shall be Presiding Officer (woman) employed at a senior level at workplace from amongst the employees. If no senior level woman employee is available, then she shall be nominated from
(b) the members must not be less than two and from amongst employees, they should be committed to the cause of women or have had some experience in social work or have legal knowledge
(c) one member from amongst the members shall be from non-governmental organisations or associations and be committed to the cause of women or a person who is familiar with the issues relating to sexual harassment.
Most importantly, at least one-half of the total Members so nominated shall be women.
The Presiding Officer or any Member of the Internal Committee shall be removed if he/she-
(a) if the member contravenes the provisions of section 16; or
(b) if the member of the committee has been convicted for an offence under any law for the time being in force or the case is pending against him
(c) if he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him
(d) if the member has abused his position as to render his continuance in office prejudicial to the public interest,
The vacancy which will be created if any member is removed, it will be filed by the nominating another member in the same manner as prescribed by the act.
CONSTITUTION OF LOCAL COMPLAINTS COMMITTEE
Section 6 of the act deals with the constitution of the local complaint committee where a complaint may be filed of any establishment, where internal committee has not been formed because the employees were less than 10 or where the complaint has been filed against the employer himself.
The District Officer shall designate
-one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area so as to receive the complaints and forward those complaints to the Local Committee. The complaint shall be received within a period of seven days.
(District officers here stand for District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as per section-5 of the act).
Members of the local committee-
The members of the local committee shall be nominated by the district officer-
(a) a Chair-person will be nominated from amongst the eminent women in the field of social work and committed to the cause of women
(b) one Member shall be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district;
(c) two Members, at least one of them shall be a woman, shall be nominated from amongst such non-governmental organisations or associations committed to the cause of women.
Also, one of the nominees should have a background in law or legal knowledge and at least one of the members shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community as notified by the Central Government
The grounds of removal of member of local committee are same as that of the internal committee.
POWERS OF THE INTERNAL COMMITTEE AND THE LOCAL COMMITTEE
As per section-11(3), the committees shall have the same powers as are vested in a civil court by the Code of Civil Procedure, 1908, to try such matters. These powers are-
(a) The committee may summon and enforce the attendance of any person and examine him on an oath.
(b) The committee may require the discovery and production of documents.
(c) any other matter which may be prescribed.
HOW COMPLAINT IS TO BE FILED?
As per section-9 of the act, any aggrieved woman may file a complaint in writing of sexual harassment at workplace to the Internal committee or the local committee.
TIME PERIOD- complaint to be filed within three months from the date of such incident and in case a series of incidents have taken place, then within three months from the last of the last incident. The time period may also be extended but not more than three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within that particular time period, by the Internal committee or the local committee. The reasons for such a delay shall be recorded by the committee.
Moreover, where such a complaint cannot be made in writing then the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee shall render all the reasonable assistance to the woman for making the complaint in writing.
Also, when the aggrieved woman is unable to make a complaint because of her physical or mental incapacity or death, then her legal heir may make a complaint under this section on behalf of the aggrieved woman.
CONCILIATION BETWEEN AGGRIEVED WOMAN AND RESPONDENT
The internal committee or the local committee may at the request of the aggrieved woman may take steps to settle the matter between her and the respondent through conciliation. However, no monetary settlement shall take place between her and the respondent.
INQUIRY INTO THE COMPLAINT
Asper the section-11, the internal committee or the local committee may proceed with the complaint and make an inquiry into it. If, a case appears prima facie, then they shall forward the same to the police under section-509 of the Indian Penal Code, 1860.
Where both the parties are employees, during the course of inquiry, the parties shall be given an opportunity of being heard and a copy of the findings shall be made available to both the parties which will enable them to make representation against the findings before the Internal Committee or the local committee. Also, when the respondent will be convicted of the offence, the court may order the respondent to pay such sum to the aggrieved woman as the court may find appropriate as per section-15 of the act.
Pendency of inquiry
While the complaint is pending, the internal committee or the local committee at the written request of the aggrieved woman may recommend to the employer-
(a) to transfer the aggrieved woman or the respondent to any other workplace than the present workplace.
(b) to grant leave to the aggrieved woman up to a period of three months
(c) to grant such other relief to the aggrieved woman as may be prescribed by the act.
The employer is obligated to implement the recommendations made by the committee and send the report of such implementation to the internal or local committee.
As per section-13, after the completion of the inquiry, the committee is required to send the inquiry report to the employer. The report shall be sent within ten days from the date on which the inquiry was completed.
The inquiry report shall also be made available to the parties to the inquiry also.
Moreover, if no allegations against the respondent have been proved by the internal committee or local committee, then the committee may inform the employer and the district officer to not to take any action against the respondent.
However, if allegations against the respondent have been proved, then the internal committee or the local committee may recommend to the district officer or the employer to-
to take action for sexual harassment as a misconduct
to deduct from the salary or wages of the respondent such sum as the employer may consider appropriate to be paid to the aggrieved woman or to her legal heirs. It shall be in accordance with the provision of the section-15.
If the respondent fails to pay the sum as ordered by the employer, then the Internal Committee or the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer for recovery.
The employer or the district officer are required to act upon the recommendation within 60 days from the date of the receipt of such recommendation.
DUTIES OF THE EMPLOYER
As per section-19 of the act, the duties of the employer are-
it shall be the duty of the employer to provide a safe working environment at the workplace and it shall include safety from all the other persons also who are coming in contact at the workplace.
The penal consequences of sexual harassment should be displayed at any conspicuous place of the workplace.
The employer should provide all the necessary facilities to the internal committee or local committee for dealing with the complaints and conducting an inquiry regarding the same.
The employer shall provide \ assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or under any other law.
The timely submission of the reports shall be monitored by the employer.
Sexual harassment at workplace is a serious problem which should not go unnoticed. Legislations have been made but the implementation is not proper. Sensitization regarding this issue is required in the workplaces so that women are not subjected to such crimes. More stringent provisions are required to be made.
Srishti Garg, 4th year student of B.A.LL.B(hons.) from Institute of Law, Kurukshetra University.