Sexual Harassment Laws in India: A Critical Enquiry

Shubham Das

Abstract

With the ever-increasing presence of women in public spaces through employment, discrimination against women has taken on diverse forms. Sexual harassment at workplace is one such form, which is a manifestation of the sex-based hierarchy that demands performance of gender roles for which the social system enables and entitles certain demographics to enact violence of various kinds against those who do not conform. This is why it is necessary for the law to step in and disrupt this process of discrimination and violence. India enacted its first such anti-discrimination law in 2013 in the form of the Sexual Harassment of Women at Workplace Act. The Act is a valuable piece of legislation granting redressal mechanism for complaints of sexual harassment at the workplace.

Introduction

Sexual harassment at the workplace creates an intimidating and hostile work environment, which has grave implications for the mental and physical wellbeing of the victim employees, and by extension, on the productivity of the workplace itself. On 9 December 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into force. It is the first piece of enacted legislation on the matter of sexual harassment at the workplace. Prior to this, the Supreme Court had created guidelines in the absence of any law regarding the same.[1]

The present study seeks to break down the concept of sexual harassment of women at the workplace by delving into its jurisprudential background and critically analyzing the provisions of the present Act.

Laws in nearly all countries are made by men, who infuse their societies’ existing prejudices and customs into formal law which serves to maintain the status quo. The political theory which forms the foundation of principles of new nations hardly encourages visibility of the female sex in public spaces, much less socially empower them to defend themselves.[2]The legitimacy of ‘We the people’ has never been questioned for not being inclusive of half the population in the polity of the nation. It is this backdrop against which the distinction between ‘normal’ and invasive behaviour at the workplace had to be identified for a comprehensive grasp on the reality of sexual harassment at the workplace.

Calls to categorize sexual harassment as an offence first surfaced in the US in the 1960s, grounded primarily in the research and theorizing of Catherine A. Mackinnon. She concluded that sexual harassment is the act of institutionalization of the sexualized subordination of women to men.[3] Title VII of the Civil Rights Act, 1964 was argued as including sexual harassment within sex discrimination. The US Equal Employment Opportunity Commission (EEOC) issued guidelines to define sexual harassment at workplace in 1980. It was in Meritor Savings Bank v. Vinson[4] that the claim for sexual harassment as sex discrimination was first validated. It was established that the burden of proof was on the plaintiff to prove that he/ she belonged to the protected class, that he/ she was subjected to unwelcome sexual harassment in the form of requests for sexual favours or verbal or physical conduct of a sexual nature, that the harassment complained of was based on sex, that the conduct unreasonably disturbed the plaintiff’s work and created an intimidating, hostile, or offensive working environment and that there is respondent superior responsibility of the employer.

With regard to same-sex sexual harassment of men, the targets most often are non-conforming men—men who do not exhibit hetero-sexualized masculinity. This was manifested in the case of Goluszek v. Smith[5], wherein a male employee was harassed for not displaying conventional masculinity.

Both instances, opposite-sex as well as same-sex sexual harassment indicate that more than a particular motivation, it is the power dynamics at play which inflate the self of sense of the perpetrator to the extent that he believes himself to be entitled to express himself in any manner without considering the contextual inappropriateness of his behaviour, or the injury it causes to the victim.[6]Such behaviour can be seen as the natural extension of the structural arrangement wherein most formal workplaces espouse masculine norms as default and as retaliation against the changing demographics of most workplaces (entry of women in white collar jobs, relaxation of gender stereotypes, etc.).

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 fourteen years after the Vishakha[7] judgment evolved guidelines to check sexual harassment at workplace, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 received the President’s assent on 22nd April 2013 and came into force on 9th December 2013.

This Act is a manifestation of the relentless efforts of various organizations and public-spirited individuals. It is a positive step towards recognition of women’s basic rights as human rights[8], reflecting the culmination of the Apex Court’s initiative towards meaningful legislation and safer work place environments for women.

The Act is divided into eight chapters, comprising a total of thirty sections. The objective of the Act is to provide a safe, secure and enabling environment to every woman irrespective of her age or employment status free from all forms of sexual harassment by fixing responsibility of the employer as well as the District Officers including District Magistrate/ Additional District Magistrate/ Collector/ Deputy Collector of every district by laying down a statutory redressal mechanism.

The most remarkable features of the Act are that it seeks to widen the scope of guidelines issued by the Supreme Court and that it makes the establishment responsible for redressal of sexual harassment-related grievances of any woman so long as the alleged incident has taken place in the workplace.

It defines the following terms among others;

Aggrieved WomanIt refers to a woman of any age who alleges to have been sexually harassed in the workplace regardless of whether she is an employee there. It also covers domestic workers employed in a dwelling place or house.

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Domestic Worker It refers to a woman who is employed to do the household work in any household for remuneration, whether in cash or kind, either directly or through any agency, on a temporary, permanent, part time or full time basis. It excludes members of the family of the employer.

Employee any person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor;

  1. Kept with or without the knowledge of the principal employer, whether for remuneration or not;
  2. Includes a person working on a voluntary basis or otherwise;
  3. Whether the terms of employment are express or implied; and
  4. Includes a co-worker, a contract worker, probationer, trainee, apprentice, etc.

Employer It refers to the head or any person responsible for the management, supervision, and control of the workplace;

Officer appointed by the appropriate Government or the local authority; The person discharging contractual obligations with respect to the employees; and

In the case of a household, the person who employs or is benefitted by employment.

Sexual Harassment it includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication):

  1. Physical contact and advances; or
  2. A demand or request for sexual favours; or
  3. Making sexually coloured remarks; or
  4. Showing pornography; or
  5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Workplace- It includes the following:

  1. Any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by 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;
  2. Any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service;
  3. Hospitals or nursing homes;
  4. Any sports institute, stadium, sports complex or competition or games venue;
  5. A dwelling place or house;
  6. Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such a journey.

The inclusion of the phrase ‘any place’ has a very wide scope and thus renders the definition quite ambiguous. It makes it impossible to establish or measure the extent of course of employment and muddles the distinction between the harassment by employer/ fellow employee or by any visitor at work place or any other place visited by the employee in the course of employment. Excessive inclusion renders any piece of legislation meaningless as it loses its specific targets and becomes aimless. This particular clause needs to be suitably refined to restrict unconnected interpretations.

Unorganized Sector It has been defined in relation to the workplace as inclusive of all private unincorporated enterprises including own account enterprises engaged in any agricultural, industrial, trade-related and/or business sectors.

Redressal Mechanism

The Act provides for the constitution of Complaints Committee at two levels—the Internal Complaints Committee (ICC) at the level of the establishment and the Local Complaints Committee at the district level, who are to conduct inquiry and, based upon their findings, give recommendations including the determination of compensation and penalty for false and malicious complaints.

Internal Complaints Committee

Every employer shall constitute an ICC.[9]It shall be composed of a presiding officer[10], not less than two members from the employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge, and one member from NGOs or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, who is to be provided with remuneration for holding proceedings. No less than 50% of the total nominated members shall be women.

The tenure for holding office by such nominated members of the ICC is three years.[11] It is to be noted that this period is not sufficient for the members of the ICC to orient themselves with the appropriate procedures and mechanisms under the Act and to satisfactorily implement those in case of complaints. Moreover, repeating this cycle every three years is likely to incur additional costs to the employer of training of members of ICC.

Local Complaints Committee

A Local Complaints Committee is to be constituted wherever ICC has not been constituted due to having less than ten employees or if the complaint is against the employer himself.[12]

The LCC shall have nodal officers in every block, taluka, and tehsil in rural or tribal areas and ward or municipality in the urban area, to receive complaints and forward the same to the concerned LCC within a period of seven days.

The LCC is to be composed of a Chairpersonthat is to be nominated from amongst the eminent women in the field of social work and committed to the cause of women, one member from amongst the women working in block/tehsil/taluka or ward/municipality in the district, two membersFrom whom at least one should be a woman from amongst such NGOs committed to the cause of women or a person familiar with the issues relating to sexual harassment. It is preferable if at least one of the nominees has a background in law or legal knowledge. At least one of the nominees shall be a woman belonging to the Scheduled Castes/ Scheduled Tribes/ Other Backward Classes/ minority community. Also, the concerned officer dealing with social welfare or women and child development in the district shall be an ex-officio member.

The tenure for the holding of such office is three years.

Complaint of Sexual Harassment

The procedure for filing a complaint of sexual harassment at the workplace[13] is quite straightforward. Any aggrieved woman or if she is physically or mentally incapable or dead her legal heir shall make a complaint in writing to the ICC or LCC as applicable. The complaint should be filed within three months from the date of the sexual harassment/ last incident of sexual harassment. If there are reasonable causes, they shall be recorded in writing and an extension of the limitation period may be granted.

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The locus standi has been expanded to include the legal heirs as well as such other person as may be prescribed.  The inclusion of the latter in the provision leads to absurdity and ambiguity. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules 2013[14] holds that ‘such other person’ includes her friend, co-worker, officer of National Commission for Women or State Women’s Commission, special educator, qualified psychiatrist or psychologist or any person, the guardian or authority under which she is receiving care or any person who has knowledge of the incident. It is pertinent to note that it is only when the last category i.e., any person who has knowledge of the incident is to file a complaint, the Rules provide for her consent to be sought. This leads to further ambiguity as it is unclear whether the persons in the rest of the categories need to take her consent for filing a complaint.

Conciliation

The ICC/LCC at the request of the aggrieved woman may take steps for conciliation.[15]However, this does not permit settlement on condition of payment of monetary compensation, but it allows for a settlement involving an adverse entry in the employee’s record book as well as a deduction from his dues.

Where a settlement is arrived at, no further inquiry shall be conducted.

Inquiry

If conciliation does not take place, an inquiry into the complaint shall be conducted as per Service Rules where available, and as may be prescribed otherwise. The inquiry shall be completed within 90 days.

For the purpose of making an inquiry, the ICC/LCC shall have the same powers as are vested in a civil court with regard to summoning, discovery, and production of documents and any other matter as may be prescribed.

For domestic workers, the LCC may forward the case to police within 7 days for registration of complaint if a prima facie case is made out.

In case the settlement arrived at through conciliation fails or is not honoured, the ICC/ LCC shall proceed to make an inquiry into the complaint or may forward the case to the police.

Action during the Pendency of Inquiry

On a written request made by the aggrieved woman[16], the ICC/LCC may recommend to the employer to:

  1. Transfer the aggrieved woman or the respondent to any other workplace
  2. Grant leave to the aggrieved woman up to a period of 3 months
  3. Grant such other relief to the aggrieved woman as may be prescribed, including restraining the respondent from supervising any academic activity of the aggrieved woman in case of an educational institution.

Inquiry Report

On completion of an inquiry, the ICC/LCC shall provide a report of its findings to the employer/the District Officer within 10 days from the date of completion of the inquiry.[17]

Where the ICC/LCC concludes that the allegation has not been proved, it shall recommend to the employer/District Officer that no action is required to be taken in the matter. In this provision, it is clear that allegation not being proved is not equivalent to the false and malicious complaint. That has to be proved separately.

Where the ICC/LCC concludes that allegation has been proved, it shall recommend:

  1. To take action for sexual harassment as a misconduct in accordance with service rules or as may be prescribed
  2. To deduct from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs
  3. If the respondent fails to pay the sum, the ICC/LCC may forward the order for the recovery of the sum as an arrear of land revenue to the concerned District Officer

Where service rules do not exist, the Sexual Harassment of Women (Protection, Prohibition and Redressal) Rules 2013 provide for taking action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the services of the respondent, undergoing a counselling session or carrying out community service.

The employer/ District Officer shall act upon the recommendation within 60 days of its receipt.

False or Malicious Complaint

The Act also provides for a check against false and vexatious complaints.[18]

Where the ICC/LCC arrives at a conclusion that the allegation against the respondent is malicious, or the aggrieved woman/complainant has made the complaint knowing it to be false, or the aggrieved woman/complainant has produced forged or misleading documents, it may recommend to the employer/ District Officer to take action against the woman/ complainant in accordance with the provisions of service rules, lacking which in any manner as may be prescribed. This is also applicable to a witness who has been proved to have given false testimony or evidence or produced forged or misleading documents.[19]

It is to be noted that malicious intent on part of the complainant shall be established after an inquiry is conducted in accordance with the procedure established before any action is recommended.

Determination of Compensation

To determine the sum for compensation[20], the ICC/LCC shall have regard to-

  1. The mental trauma, pain, suffering, and emotional distress caused to the aggrieved woman
  2. The loss in the career opportunity due to the incident of sexual harassment
  3. The medical expenses incurred by the victim for physical or psychiatric treatment
  4. The income and financial status of the respondent
  5. Feasibility of such payment in a lump sum or in instalments

The provision of compensation being dependent on the income and financial status of the respondent is highly objectionable, as it distinguishes between aggressors on the basis of their financial status and is likely to give greater impunity to respondents having less income as that implies a lighter sum of compensation.

Prohibition of Publication of Complaint or Inquiry Proceedings

The identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the ICC/LCC and the action taken by the employer/ District Officer shall not be published, communicated or made known to the public, press and media and shall be kept confidential.[21] Only the information regarding the justice secured to any victim of sexual harassment may be disseminated without disclosing the above-mentioned details. The provisions of Right to Information Act, 2005 remain inapplicable to such proceedings.

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Contravention of this section shall result in the imposition of penalty upon the entrusted person in accordance with service rules where available, and as may be prescribed otherwise.

 This provision, though incorporated with the good intention of protecting the anonymity of the parties, ends up rendering the entire process quite opaque and lacking in accountability.

Appeal

An appeal lies in case of contravention of Sections 13, 14 and 17. It may be preferred to the court/ tribunal where service rules exist; where service rules do not exist, in such manner as may be prescribed.

The appeal shall be preferred within 90 days of recommendations.

Penalty for Non-Compliance

Where the employer fails to constitute an ICC, take action under sections 13, 14, 22[22], contravenes/ attempts to contravene/ abets contravention of other provisions of the Act or rules made thereunder, he shall be punishable with fine which may extend to fifty thousand rupees, where the employer repeatedly commits an offence punishable under this Act after having been convicted previously, he shall be punishable with twice the punishment he received upon first conviction. Also, the license for carrying on business or activity may be cancelled/ withdrawn/not renewed by the Government or local authority.[23]

Conclusion

Sexual harassment is a facet of power imbalance at the workplace, the power that is not only occupational but also rooted in differential socialization of the sexes and all consequent behaviours and expectations that arise out of it. Legislation to contain it, then, is required to go beyond formal equality and ensure social equality.

Perhaps it was with this intention that lawmakers chose to have a law which is very wide in its scope and covers various circumstances and aspects which any previous draft bills did not do. It is indeed a much needed piece of legislation which takes the space of efforts by the judiciary at law-making on the matter. It provides a real means of grievance redressal to the victim, a matter upon which previous guidelines were usually not complied with.

However, the Act is not without faults. Its chief drawback lies in the fact that male employees cannot claim compensation under this Act, and that same-sex harassment is not covered. This leaves out a lot of victims without protection. Additionally, there is no provision to prohibit victimization of the aggrieved woman by the employer or co-employees. This leaves room for bullying and general harassment which is not of a sexual nature. The Act also does not cover cases where the employer is female and fails to take action or contravenes provisions of this Act. Another lacuna is that it places aggressors of different financial status on different footing when it comes to payment of compensation as if the harm caused to the victim will naturally be lesser if the act is perpetrated by a person with lesser income. Moreover, while the Act fixes many responsibilities upon the employer including providing safe working environment, holding workshop/ awareness programmes for sensitization of employees and orientation of the members of ICC with mechanisms provided under the Act and treating sexual harassment as a misconduct under service rules, it does not take into account many limitations of employers viz., the difficulty in constituting an ICC in all administrative units or offices, neither does it say what is to be done in case there is no senior female employee for the post of chairperson of ICC. The tenure of ICC/LCC for three years is too less for a functional body as the process of nomination, orientation programmes will be repeated too often and obstruct the course of speedy justice. Lastly, the expansion of the definition of workplace to include transportation is quite an absurd provision, as it holds the employer liable for something that happened through no fault of his as he could not possibly arrange for a safe mode of transport at all times for all employees, and has no means of ensuring the safety of employees in public transport.

The Act should not become so conflicting and vague that it defeats the purpose for which it was enacted. It is suggested that the above-mentioned limitations be looked into and rectified in order to strengthen the Act by increasing its credibility, integrity and most importantly, enforceability.


[1] Vishakha v. State of Rajasthan AIR 1997 SC 3011 (India).

[2] Catherine A. MacKinnon, Reflections on Sex Inequality under Law, 100 YALE L.J. 1281 (1991).

[3] Catherine A. MacKinnon, Sexual harassment of working women: a case of sex discrimination, (Yale University Press 1979)

[4] Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

[5] Goluszek v. Smith , 697 F. Supp. 1452.

[6] Kathryn Abrams, The New Jurisprudence of Sexual Harassment, 83 Cornell L.R. 1212 (1997).

[7] Vishaka v. State of Rajasthan AIR 1997 SC 3011.

[8] As affirmed in the Vienna Accord 1994 and the Beijing Women’s Conference 1995

[9] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, section 4.

[10] To be selected from senior women employees of the workplace.

[11] Supra note 9, section 4(3).

[12] Supra note 9, section 6(1).

[13] Supra note 9, Section 9

[14] Notified on 9th December 2013

[15] Supra note 9, section 10.

[16] Supra note 9, section 12.

[17] Supra note 9, section 13.

[18] Supra note 9, section 14.

[19] Supra note 9, section 14(2).

[20] Supra note 9, section 15.

[21] Supra note 9, section 16.

[22] Employer to include statistical information pertaining to complaints and inquiry proceedings in annual report.

[23] Supra note 9, section 28.