Author: Chitra shetty
College: Oriental college of law, sanpada. Navi Mumbai.
Sexual Harassment is a very common problem in India and abroad. Women have faced such instances of sexual harassment, be it in workplace, public transport or in any other places. Women do face some or the other sexual harassment, either by physical gestures or through verbal communications. For Example: “whistling”.
Sexual harassment at workplace is a universal problem whether it is a developed country or developing country, cruelty against woman is common everywhere. It is seen to be happening with the women gender as they are considered as the most vulnerable section of the society these days. Sexual harassment has become a very serious problem in the workplace, and it has become one of those issues that receive a lot of negative attention.
What Is Sexual Harassment?
“Sexual Harassment” basically includes unwelcome sexual behaviour whether directly or indirectly, such as:
Sexually coloured remark,
Requesting for sexual favours,
Touching woman’s hair, clothes and body,
Make a woman feel uncomfortable with verbal or non-verbal sexual conducts,
Kissing sounds etc
What Is A Workplace?
As per section 2(o) of the POSH Act, `workplace` includes any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment.
Overview About Sexual Harassment In India:
Pre- Vishaka Scenario
Earlier, there was no statutory remedy that would directly address the workplace sexual harassment except the Indian Penal Code, 1860. The only sections that could be used in case of any sexual harassment incurred at the workplace were:
1) Section 354 (Outraging the modesty of a woman) and
2) Section 509 (Insulting the modesty of a woman}
Women who were sexually harassed at workplace had to file a FIR under these two sections of IPC.
Case: Rupan Deol Bajaj vs. K.P.S Gill (1995)
In the above case, a senior IPS officer was sexually harassed by a superior officer and the limited provisions of IPC, section 354 and section 509 were insufficient as per the High Court. These sections of IPC were not satisfactory and further provisions were much needed in order to protect the dignity of the woman facing harassments. It was in the light of instances such as these that the Supreme Court set aside the judgement in Rupan case.
LandmarkCase: -Vishaka & Ors vs. State Of Rajasthan (1997) 6 SCC 241, AIR 1997 SC 3011
Back in 1992, Bhanwari Devi, a Dalit woman who was a social worker employed with the rural development programme of the Government of Rajasthan was gang raped. This case highlighted the extents of sexual harassment activity in the Indian workplaces. It was a strong indication that many working woman faced or are facing such incidents at their respective workplace.
In order to curb these acts, the Supreme Court have introduced a strong law, in which a woman can file a complaint under that particular act against an individual or individuals who were a part of such harassment.
The Supreme Court has issued certain guidelines and directions to the Union of India which would help in reducing such sexual harassment activity at workplace. The main object of issuing these guidelines was to provide a platform for redressal and grievance mechanism against workplace sexual harassment. These guidelines provided by the Supreme Court helped in the formation of Sexual Harassment of Women At workplace (Prevention, Prohibition AndRedressal) Act, 2013 (POSH). This Act plays avital role as it discusses the various instances of sexual harassment and how a woman can lodge a complaint against such harassments.
After the vishaka case, 2 important cases were seen wherein the legal framework for workplace sexual harassment got strengthened. They were:
· Apparel Export Promotion Council Vs. A.K. Chopra (1999)
In the above case, the Court enlarged the definition of sexual harassment to state that, “Physical contact is not always essential for an act amounting to workplace sexual harassment.”
Sexual harassment is seen as any `unwelcome` act.
· Medha Kotwal Lele & Ors Vs. Union Of India & Ors (2013)
In the Medha Kotwal case the Supreme Court ordered the state to follow the vishaka guidelines and to ensure its effective implementation. Further, the court asserted that if the guidelines are not complied with, then the victim or the aggrieved person can approach the High Court.
The Supreme Court made it legally binding on the institution to observe some guidelines to ensure prevention of sexual harassment of women.
Prohibition, Prevention and Redress these were the key obligations that were imposed on institutions as the guidelines defined sexual harassment at workplaces. The Supreme court asserted that every organisation must form an Internal Complaints Committee or ICC to look into the matters of sexual harassment of women at workplace.
Who Is An “Aggrieved Woman”As Per The Act?
According to the handbook on sexual harassment of women at workplace, the act recognises the right to every woman to a safe and secure workplace environment “irrespective of her age or employment”. Any woman coming to any workplace “whether in the capacity of regular, temporary, adhoc, or daily wages basis” is protected under the act.
How to File AComplaint Of Sexual Harassment At Workplace?
The 2013 Act says that, any aggrieved woman may make complaint in writing. However, a written complaint is not mandatory. If she cannot give a written complaint, the Act says, any member of ICC shall render all reasonable assistance to her for facilitating it. Also, if a woman is unable to make a complaint citing “Physical or mental incapacity or death” her legal heir may do so.
Time Frame for Making AComplaint to ICC
According to the act, a woman may file a complaint of sexual harassment within 3 months from the date of incident. If incase, in any circumstance’s woman was unable to file a complaint then ICC has the right to “Extend the Time Limit” for filing of such complaint. The aggrieved woman or the legal heir shall provide a satisfactory reasons before ICC grants such extension. The ICC needs to record the reasons to exercise the right.
What Happens After AComplaint Is Made?
Once a complaint is made, the ICC can offer conciliation under section 10 of the Act. Before starting of the inquiry, the ICC “at the request of the aggrieved woman” can take appropriate steps in order to settle the matter between her and the respondent through conciliation. However, no monetary settlement shall be made on the basis of conciliation.
If conciliation is not the option, then the ICC can forward the complaint to the police under section 509 of the IPC that carries a maximum punishment of 1year jail or fine. Or, it can start its own inquiry and complete it within 90 days.
Enjoying powers similar to that of a civil court, the ICC can summon and examine any person on oath, can ask for the production of related documents before it. During the inquiry, if the woman makes a written request , the ICC may also recommend her transfer, a 3 months leave, or any other relief as it deems fit.
Once the enquiry is over the ICC is to provide a report to the employer within 10 days, making available a copy of it to the victim too.
What Happens After ICC Report?
If the ICC finds the allegations true, it will recommend the company to take action against the accused for misconduct, in accordance with the provision of service rules. In case the company does not have service rules, the recommended action may include a written apology, warning, withholding of promotion or pay raise, termination of service.
The ICC can also recommend financial damages to the complainant.
Once the ICC furnishes its recommendations, the aggrieved woman or the respondent can challenge the report in a court of law within 90 days.
What Happens To The “Victim” If Her Complaint Is Found To Be False?
Section 14 of the sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act deals with “false complaint”. If the ICC finds the complaint to be false, the act says, it may recommend action against woman or the person who has made the complaint.
The Act makes it clear, a mere inability to substantiate a complaint or provide adequate proof need not attract legal action. Also, no action can be taken against the complainant unless an inquiry establishes malicious intent on part of the complainant.
Here Are Few Guidelines To Keep In Mind In Order To Prevent Sexual Harassment In Your Workplace
1) Ensure your workplace has a sexual harassment policy in place.
2) Raise Awareness.
3) Have clear harassment reporting procedures in place.
4) Deal with any allegations and concerns immediately.
5) Have a dedicated person in place to review any allegations.
6) Zero tolerance policy.
The POSH Act is protecting many working women around India from being sexually harassed at their workplace. It not only strengthens and gives confidence to female employees but also plays a major role in removal of such incidents. Thislaw has empowered and has been a platform to voice their concerns. In the future, the aim should be to eradicate such instances and bring about a safe space in workplace.