CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

Gender


A Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: An Asse


The law protecting women against sexual harassment at workplace came out as a legislative act after the approval of the President on April 23, 2013. Deriving its essence from the 'Vishaka Guidelines' issued in 1997 by the Supreme Court in the Vishaka vs State of Rajasthan case, the Act promulgates mechanism for employers to handle cases of sexual harassment at workplaces by explicitly stating protocols to be followed during and after the course of such incidents and provides safeguards against malicious charges or complaints.

Main highlights

This Act superseded the Vishaka Guidelines in providing the modus operandi to ensure prevention of sexual harassment cases against women in their workplaces and also furnishes statures of relief in such instances. The Act thus defines various terms in this regard such as what includes sexual harassment, who can be termed as an aggrieved woman and what set up is defined as a workplace.  

The Act lays down rules that need to be followed in case a complaint of sexual harassment is lodged with an employer. To provide relief to the victim, the formation of an Internal Complaint Committee (ICC) has been ordered under this act in every establishment with ten or more employees. This committee is to contain a majority of women employees working in that establishment and a woman NGO worker with prior experience in such regards as part of the panel. The committee is also to be chaired by a senior women employee of the establishment. However, the formation and working of the ICC solely relies on the employer and it is his duty to constitute the committee. The act also speaks about constituting a Local Complaints Committee (LCC) in every district by the District Officer or any other nodal officer. Such a committee is to overlook the working of the various ICCs within its district and ensure their smooth working.  

The committee is provided with a time period of 90 days to complete enquiry in cases of harassment and to file a report on the last day with the employer suggesting further course of action. The complaint committees are to also encourage conciliation, if the complainant agrees, before initiating an enquiry. Both these committees are vested with the powers of a civil court and are deemed to assign reconciliation or punishment to the accused, depending on the situation at hand.

A detailed account of the duties of an employer in regards to ensuring safety of women employees also finds a place under this act. The act also emphasis the way in which the complaint committee is to work and engage in providing relief to the victim. Penalties for non-compliance with any of the provisions under the act are also clearly mentioned in the mandate. The act further lays down actions to be taken in cases where malicious charges are reported against the accused.  

Amendments to be done

Though the Act has contributed to the greater cause of working women by providing norms for their safety, it loses its charm while approaching certain logistical and implementation concerns of guidelines mentioned under the Act. One of the dominant problems of the Act can be seen in the non-compliance with the formation of an Internal Complaints Committee (ICC) by the employer as emphasised in the mandate. According to a survey conducted by the FICCI, 36% of Indian companies either didn't constitute the committee or were in the process of doing so while 47% of the companies with ICC did not have a trained staff, a prerequisite as mentioned in the mandate. On similar lines, recently the NGO 'Initiatives for Inclusion Foundation' filed a plea with the Supreme Court for the appointment of nodal officers and Local Complaints Committee in every district by the state governments under the Act, which shows that the same is actually not being followed effectively.  

The working of the ICC itself poses certain questions with respect to its working. A prerequisite of this Act stresses the availability of such people in the ICC who are well in touch with laws and legalities besides having a female NGO worker who is well experienced in women related issues. However, according to recent statistics, this clause does not seem to be implemented effectively. As per the mandate, half of the committee should include women, both internal employees as well as external members, and must be headed by a senior women employee of the office. However, there may arise certain feasibility issues here as it so may happen that there is not an adequate amount of women staff available in that establishment. The aftermaths of such situations has thus not been given enough attention under this act. The act thus seems more reactive in its approach than being proactive.

Furthermore, the employer is solely given the power to nominate employees as members of the ICC, giving the employer an upper hand in the selection and decision process, something that might result in personal bias and influencing of decisions for or against the complainant or the offender. In addition, the committee seems to merely form a recommendatory party, the execution solely rests in the hands of the employer. Furthermore, in cases where the employer is accused of harassment, what is to be the future of such complaints? Will any member of the ICC, a committee formed by the accused himself, dare indulge in fair investigation for the fear of losing their jobs?

Necessary alternations

The Act considers a sexual harassment case as a non-cognizable offense under which an enquiry can only be made through a direct court order. This may act as a parameter of delay in providing justice to the victim as she may have to face her offender before the enquiry is completed (maximum 90 days). In the meantime the victim may be provided a leave from the workplace for a period of 3 months or as prescribed otherwise, however, whether or not this leave is paid is not specified by law. Moreover, the Act portrays that irrespective of the magnitude of the harassment, an incident will be dealt in the same way vis-a-vis the punishment granted i.e. in terms of payment of a monetary fine by the offender to the aggrieved.  

Certain areas of the Act also prove blurred on issues such as the fate of women working in the domestic sector, freelancers, construction or agriculture workers who are in fact engaged in professional work but are not attached to a particular employer throughout. This borderlines on confusion whether the woman should actually be working as a permanent employee in an organisation in order for her to be eligible to file a complaint and if yes, then what holds for those women who face harassment during the time that they are not attached to one employer or organisation. Furthermore, it is not clear in cases where an external agent is involved in providing the victim with a job as to who the complaint may be filed to, the agent or the employer.  

The Act also does not take into account incidents of sexual harassment against women taking place over electronic media channels by their colleagues at work. In such scenarios, a section of this Act should also be devoted to the methods of redressal to be followed in instances of harassment arising due to sharing of uncomfortable electronic messages, both textual and visual, through social media platforms and like, designed to outrage a woman's modesty.  

Conclusion  

The Act without a doubt is a progressive step taken in the direction of ensuring safe working environments for women and providing them with interim relief in cases of sexual harassment done against them. However, though the Act lays down rules and methods to be taken in providing redressal to victims, there are certain loopholes that need to be looked into in order to create a fool proof legislative act to deter such incidents of harassment.

The Justice Verma Committee was constituted to recommend amendments to this law in order to initiate quicker trials and relief to women affected by incidents of sexual harassment. The Committee submitted its report on January 31, 2013 with a detailed review on the immediate changes needed in this act however, none of the amendments mentioned in the report have been implemented as of now.

Citation:  


Handbook on Sexual Harassment of Women at Workplace; (Prevention, Prohibition and Redressal) Act, 2013 (2017). Ministry of Human Resource Development. Retrieved on May 30, 2018 from http://nitdelhi.ac.in/wp-content/uploads/2017/06/Forwarding-of-Handbook-on-Sexual-Harassment-of-Women-at-Workplace-Act-2013.pdf  

International Journal of Interdisciplinary and Multidisciplinary Studies. Kumar, M and Singla N (2014) 'The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in India: An Analysis'. Retrieved on June 2, 2018 from http://www.ijims.com/uploads/d632fa1fcd9651ca089c4.pdf

PRS India. Protection of Women Against Sexual Harassment at Work Place Bill, 2010. Retrieved on June 1, 2018 from http://www.prsindia.org/billtrack/the-protection-of-women-against-sexual-harassment-at-work-place-bill-2010-1402/

PRS India. Retrieved on May 28, 2018 from http://www.prsindia.org/billtrack/the-protection-of-women-against-sexual-harassment-at-work-place-bill-2010-1402/

Raghuwanshi, A (2017) International Journal of Legit Insight. 'The Critical Analysis of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013'. Retrieved on May 30, 2018 from http://www.ijli.in/assets/docs/AyushiRaghuwanshi.pdf

Saigal, S. The Hindu (2017) 'Sexual Harassment at work: The limits of the law'. Retrieved on June 2, 2018 from http://www.thehindu.com/news/cities/mumbai/sexual-harassment-at-work-the-limits-of-the-law/article17763605.ece  

Sakhrani, M (2017) 'Sexual Harassment: The Conundrum of Law, Due Process and Justice'. Retrieved on June 2, 2018 from http://www.epw.in/engage/article/sexual-harassment-conundrum-law-due-process-and-justice