India: Prevention Of Sexual Harassment In A Workplace

The Indian Society has seen various changes over years. One major change society saw is the ratio of women working in various sectors. However, women still have had to fight various barriers in order to have a safe working environment and it won't be wrong to say the barriers still have not disappeared completely.

Sexual Harassment was one such barrier faced by working women in both formal and informal workplaces. The Supreme Court in a landmark Judgement of Vishaka & Ors. v. State of Rajasthan (Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011) observed the evil of harassment at the workplace being discriminatory to women and against their right to life and liberty. Furthering this, the Court provided certain guidelines to deal with cases of Sexual Harassment at the workplace. These guidelines came to be known as Vishaka Guidelines. The Hon'ble Court also mentioned in its judgment the need for dedicated legislation for issues of Harassment at the workplace and asked the State and Union Governments to act upon the same. This Judgement paved a way for women's security and was the first ray of hope for a safe working environment for women. Sixteen years later India had its first legislation to deal with the issue of sexual harassment at the workplace. This legislation came to be known as The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [hereinafter, 'the Act'] along with the Act the Ministry of Women and Child development also notified Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.

What is Sexual harassment?

Most of the provisions of the Act are based on the Vishaka Guidelines laid down by the Supreme Court. Sexual harassment includes both organized and unorganized sectors, including domestic help.

Section 3 of the Act mandates that 'No woman shall be subjected to sexual harassment at any workplace.' The Act is comprehensive and clearly describes in its definition sections what amounts to "Sexual Harassment" and what would constitute "Workplace".

How is sexual harassment defined?

The following acts would constitute Sexual Harassment as per the Act –
"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."

Additionally, Section 3(2) adds to the meaning of the definition provided above to include acts, providing that if certain circumstances are present along with the above-mentioned acts, shall amount to Sexual Harassment. 

These circumstances are-

• implied or explicit promise of preferential treatment in her employment: or
• the implied or explicit threat of detrimental treatment in her employment; or
• the implied or explicit threat about her present or future employment status: or
• interference with her work or creating an intimidating or offensive or hostile work environment for her: or
• humiliating treatment likely to affect her health or safety.

The rationale behind the Section 3(2) is the safety of women in the sense that she is not frightened to lodge a complaint in cases of Sexual Harassment faced by her in the workplace considering that it is an internal complaint redressal mechanism. In various cases, women tend to fear losing jobs or demotions or constant humiliation by co-employees or the employer.

How is workplace defined?

Another important aspect is what constitutes a workplace under the provisions of the Act. In this regard, it must be noted that while the workplace in the Vishaka Guidelines was limited to the traditional office set-up where there is a clear employer-employee relationship, the Central Government, went further to include a wider spectrum to be construed as workplace and even include any place visited by the employee during the course of employment including the transportation.

The definition is comprehensive enough to include all possible places where harassment could take place. It includes all governmental, private employment spaces along with additional mentions to hospitals, sports workspaces, any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey and dwelling place or a house. 

In the case of Shilajit Guha v. Sikkim University and Ors.  the petitioner in this case misbehaved with the respondent by touching her inappropriately and without her consent at a wedding reception of one of the faculty member's families. The respondent and petitioner were employees of the same university and on the complaint of the respondent the petitioner's employment was terminated. It was contended by petitioner that wedding reception does not constitute "workplace" under the Act. The Court observed that the definition of workplace is an inclusive one and not an exhaustive one and therefore shall fall within the scope of "any place visited by the employee arising out of or during the course of employment".

Hence the precedents, through light on the fact that while dealing with such issues, the statutes must be read in a way that it does not undermine the purpose behind the statutes.

What is the Internal Complaints Committee or the ICC?

As per the Act, companies are bound to have an active Sexual Harassment at workplace policy. This policy shall be in accordance with the 2013 Act. All workplaces that have 10 employees or more are required to constitute an Internal Committee. The redressal mechanism of complaints under the Act is provided through the Internal Complaints Committee [hereinafter referred as 'ICC']. As per Section 4 of the Act, all administrative units or offices of the workplace are located at different places or at the divisional, sub-divisional levels.

What should be the composition of the ICC?

As per Section 4 of the Act, an Internal Complaints Committee shall comprise of –

• a Presiding Officer who shall be a woman employed at a senior level at the workplace from amongst the employees.
• not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
• one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment;

The requirement is that at least one-half of the total Members so nominated shall be women. The provisions also mentions that the period for holding such a position will be for 3 years and for removal for such persons in certain circumstances.

What is the procedure to make a complaint to the ICC?

An aggrieved woman upon facing an incident of Sexual Harassment can make a written complaint to the Presiding Officer of ICC. The Presiding officer is under obligation to help such a woman in making the written complaint. In case, the aggrieved woman is mentally ill or is no more, the legal heir of such woman has the right to make a complaint. Before proceeding to inquiry, the Internal Committee on request of the aggrieved woman can help settle the matter through Conciliation. If the settlement of the matter does not turn out to be fruitful, an Inquiry into the complaint is to be done by the Internal Committee. Consequent to this the employee against whom the complaint is made is given the opportunity to be heard and a copy of the findings is made available to both the parties enabling them to make representation against the findings before the Committee. The power of ICC under this section for inquiry is similar to that of the Civil Court under the Civil Procedure Court, 1908.

During the pendency of such inquiry, if the aggrieved woman requests, she or the respondent can be transferred to any other workplace, she may be granted leave for a period of three months, or any other relief as may be prescribed can be granted to her by the Internal Committee.
Later after hearing and due consideration of all the circumstances the Internal Committee submits the report of findings to the Employer, this shall be done within 10 days of the filing of the complaint. The Employer as per the Section 2 (g) of the Act, has been defined to mean any person responsible for the management, supervision, and control of the workplace and management includes the person or board or committee responsible for formulation and administration of policies for such organisation. 

In cases when ICC finds no harassment, no action is taken various in cases of harassment the Employer is recommended (i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent (ii) 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, as it may determine. Section 15 lays down the factors to be taken into consideration to determine compensation to be paid to the aggrieved woman, these factors include the mental trauma, pain, suffering, and emotional distress caused to the aggrieved woman; the loss in the career opportunity due to the incident of sexual harassment; medical expenses incurred by the victim for physical or psychiatric treatment; the income and financial status of the respondent; and the feasibility of such payment in a lump sum or in installments. However, in cases of fake complaints, the actions are taken against the women who made the complaint.

The company/organization is under a duty to constitute ICC and observe due procedure stipulated in the Act while dealing with such cases, failure to do so would make the Employer liable for penal sanctions.

What are the duties of the Employer?

The most important duty of any person who heads any workplace is that of providing a safe environment for everybody. The Act in this view to provide a safe environment for women lays certain duties on the employer such as having a well-functioning policy for sexual harassment, organizing workshops and awareness programs, providing necessary facilities to ICC, providing assistance to women filing complaints, proper monitoring of reports by ICC etc.

Is POSH also to protect men in the workplace?

India talks about progress and development that can be achieved through equality. Most of the debate is about making laws gender-neutral. However, in case of POSH as the terminology and various provisions of the Act clearly uses the word "Women", the Act is not Gender neutral. 

However, companies have been known to be inclusive and there have been instances of POSH complaints being filed by men. These complaints however, are far and few. All employers should perhaps spread awareness about the possible applicability of the law on all genders and promote equality and safe environment for all employees. 

We have come a long way as a society from what we had before, witnessing change in mindsets accompanied with change in laws and thereby change in society. The Judges, the Employers, the Employees, the Parliamentarians and the Common People all have progressed a little bit from the old age Patriarchal System. One of the landmark progressive steps towards this was the Act for Prevention of Sexual Harassment. The problem has not been eradicated but reduced for sure.