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Mainstream, VOL LI, No 20, May 4, 2013

The Sexual Harassment of Women at Workplace [Prevention, Prohibition and Redressal] Bill, 2012

Saturday 4 May 2013

by Nilima Chandiramani

The Sexual Harassment of Women at Work-place [Prevention, Prohibition & Redressal] Bill, 2012 was passed by the Lok Sabha on September 3, 2012. It emanated from the Supreme Court Guidelines laid down in Vishaka’s case of 1997.

Sexual harassment at workplace is not just a personal injury to the woman but it violates her fundamental right to equality and right to life and to live with dignity. These rights are universally recognised as Human Rights by International Conventions such as CEDAW, ratified by the Government of India in 1993.

Aim

The Bill aims at providing a safe, secure and enabling environment free from sexual harassment at workplace thereby improving women’s participation in work, resulting in their economic empowerment and inclusive growth.

It adopts a three thronged approach by:

• protecting women against sexual harassment at workplace;

• preventing instances of sexual harassment at workplace; and

• providing redressal of complaints of sexual harassment at workplace.

Applicability

The Bill provides protection against sexual harassment at workplace to women of

any age

:

• in public and private sectors

• in organised and unorganised sectors

• to domestic workers employed in dwelling places/ houses.

What constitutes sexual harassment}? }}

The following direct or indirect unwelcome act or behaviour constitutes sexual harassment:

• physical contact and advance;

• demand or request for sexual favour;

• making sexually coloured remarks;

• showing pornography;

• any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The following acts may also amount to sexual harassment:

• implied or explicit promise or threat to a woman’s employment prospects;

• creating intimidating/offensive/hostile work environment; or

• humiliating treatment likely to affect her health or safety.

What is a workplace?

• Public and private sector organisations;

• Organised or unorganised sectors;

• Hospitals/ nursing homes;

• Sports institutions, stadiums, sports complex, competition or games venue;

• Universities, colleges, schools, research institutes, etc;

• Any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer;

• Dwelling place/house.

Redressal Mechanism 

The Bill provides a twin mechanism to redress sexual harassment complaints, namely, the Internal Complaints Committee [ICC] and the Local Complaints Committee [LCC].

Every employer of a workplace having more than 10 workers shall constitute an ICC. The four members of ICC are nominated by the employer. At least one half of the total members shall be women. Presiding officer has to be a woman. One member has to be from an NGO committed to the cause of women or familiar with issues related to sexual harassment. The other two members (employees) must be committed to the cause of women or have experience in social work or have legal knowledge. Their term is for three years.

If the employer fails to constitute the ICC he shall be liable to pay a fine extending upto fifty thousand rupees.

According to the Economic Census 2005, 41.20 million establishments out of 41.83 million establishments in India have less than ten workers. So it may not be feasible for such establishments to set up an ICC. In such cases the Bill mandates setting up of an LCC. Further where the complaint is against the employer himself, the LCC is empowered to receive such a complaint.

The government will notify a district officer [district magistrate/additional district magistrate/ collector/deputy collector] who shall nominate the five members of the LCC at the district or sub-district levels. At least three members shall be women—the Chairperson, a woman working in the block/ward/municipality/ taluka/ tehsil in the district, a woman belonging to reserved category. All the five members should be committed to the cause of women or familiar with issues relating to sexual harassment or have worked with an NGO or have a background in law. Their tenure shall be for three years.

Complaint

The complaint must be made in writing by the aggrieved woman personally or by her legal heirs if she is physically/mentally incapacitated or dead. The complaint must be made to the ICC or LCC within three months from the date of the incident, if there are series of incidences then from the last incident.

Conciliation 

The ICC/LCC may, before initiating an inquiry, take steps to settle the matter through conciliation. However, conciliation must be only at the request of the aggrieved woman and not otherwise. No monetary settlement shall be made as a basis of conciliation. The ICC/LCC shall record the settlement and forward the same to the employer/ district officer to take action on its recommendations.

Inquiry 

The inquiry shall be as per the service rules of the employee or prescribed rules if no service rules are available. [In case of a complaint by a domestic worker, the Committee will forward the complaint to the police within seven days.] It has to be completed within 90 days. The Committee has powers of a civil court for enforcing attendance and examination of persons and production of documents.

Relief during pendency of inquiry 

During pendency of inquiry, the Committee may, on a written request by the aggrieved woman, recommend to the employer transfer of the aggrieved woman or respondent to any other workplace; or

Leave to the aggrieved woman up to three months. The employer shall implement the recommendation and send the report of such implementation to the Committee.

Inquiry Report} }}

The Committee shall send the report of its finding to the employer/district officer within ten days of completion of inquiry. The report shall be made available to the concerned parties. If allegations are not proved, the Committee shall recommend to the employer/district officer that no action should be taken against the respondent. If allegations are proved, the Committee shall recommend to the employer/ district officer:

• to take action for sexual harassment as a misconduct according to service rules; and

• to deduct from salary/wages of the respondent an appropriate amount to be paid to the aggrieved woman. If the employer cannot deduct the amount because the respondent is absent from duty or has ceased to work, then the respondent will pay personally. If he fails to pay, the amount shall be recovered as arrears of land revenue.

While determining the amount to be paid to the woman, regard shall be given to:

1) mental trauma, pain, suffering, emotional distress caused to the woman;

2) loss of career opportunity;

3) medical expenses for physical or psychiatric treatment;

4) income and financial status of respondent.

The Committee shall consider the feasibility of payment in lump sum or instalment.

The employer/district officer shall act upon the recommendation within sixty days of its receipt.

Any person aggrieved by the recommendations may prefer an appeal to the court/tribunal within ninety days.

Prohibition against publication

There is a prohibition against and a penalty for publication of inquiry proceedings.

Punishment for false/malicious complaint 

The Bill provides a safeguard against vexa-tious complaints made for oblique purpose. The Committee may recommend action, in accor-dance with service rules, against the woman for making a malicious or false complaint. However, inability to substantiate a complaint does not mean that the complaint is false or malicious. The woman aggrieved by the recommendation may prefer an appeal to the court/ tribunal within ninety days.

Duties of Employer} }}

The Bill enumerates the following duties of the employer:

• providing safe working environment;

• displaying penal consequences of sexual harassment and order constituting ICC;

• organising awareness programmes for employees and orientation programmes for ICC members;

• providing facilities and making available information to ICC/LCC for conducting inquiry;

• securing attendance of respondent and witness(es);

• assisting woman to file complaint, if she decides;

• treating sexual harassment as a misconduct under service rules; and

• monitoring timely submission of reports by ICC.

Duties of District Officer} }}

The district officer shall:

• monitor timely submission of reports by LCC; and

• engage NGOs for creation of awareness on sexual harassment.

Duties of Government

The Government shall:

• monitor implementation of the Act;

• maintain data on number of cases filed and disposed;

• adopt measures to publicise the Act.

Dr Nilima Chandiramani is the Principal, Nari Gursahani Law College, Mumbai, and former Dean, Department of Law, University of Mumbai. She is also former Principal, K.C. Law College, Mumbai.

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