Made effective at last: Sexual Harassment of Women at Work Place Act, 2013!

The Ministry of Women and Child Development, by a Notification dated December 9, 2013 has at last made the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “Act”) effective from December 9, 2013. The rules with regard to the same have also been made effective from the same date and will be called Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.

The very first efforts, towards implementing a law for protection of women from sexual harassment at work place, were taken in 2007 when the Protection of Women against Sexual Harassment at Workplace Bill, 2007, was introduced in the Parliament. However, this Bill never saw the light of the day. On December 7, 2010, the Protection of Women against Sexual Harassment at Work Place Bill, 2010 (the “Original Bill”) was introduced in Lok Sabha and was referred to a Parliamentary Standing Committee on Human Resource Development, led by Shri Oscar Fernandes, on December 30, 2010 for examination, and the Standing Committee came out with its report in December, 2011. Further to the report, subsequent changes were made to the Original Bill, including to the title of the Bill, which was changed to Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013 (the “Bill”). The Bill was passed by Lok Sabha on September 3, 2012, by Rajya Sabha on February 26, 2013 and after the President’s assent, was published in the Gazette of India on April 23, 2013. However, in spite of being published in the Gazette, the Act had not become effective and was waiting for “notification in the Official Gazette” by the Central Government, which came on December 9, 2013.

A law to protect women from sexual harassment at work place has finally been enacted, after 16 years of the Supreme Court judgment in the case of Vishaka & Ors. v. State of Rajasthan & Ors. [1997 (7) SCC 323], where the Supreme Court had held that sexual harassment at work place is violative of constitutional rights of women (including rights of equality, to practice any profession and to right to life with dignity) and are discriminatory towards women. To address the issues and to fill the legislative vacuum, Supreme Court in the same case also laid down certain guidelines which made it mandatory for every employer to provide for a mechanism to redress grievances relating to sexual harassment at work place.

Whether this deferral of 16 years was an act of lethargy on the part of our legislators or procedural delay, it is difficult to comprehend. However, what is welcome is the fact that every employer will now be obligated as per the legislation to have an internal complaints committee within the organization (not that it had already not become mandatory after the Supreme Court judgment mentioned above) and it can be hoped that recent cases like that of Mr. Tarun Tejpal (alleged) shall not occur or occur less, at the most.

It can further be said that, by passing the Act, the Government of India has also fulfilled its obligations under the Convention on the Elimination of all Forms of Discrimination against Women, which had been ratified by Indian Government on June 25, 1993 and which provides that protection against sexual harassment is universally recognized human right. My next post shall discuss the provisions of the Act and the Rules.  

The Act has defined what constitutes sexual harassment (Section 2 (n) and Section 3): Any of the following (directly or by implication): (1) physical contact and advances; (2) a demand or request for sexual favours; (3) making sexually coloured remarks; (4) showing pornography; (5) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The definition is very wide, as it provides for direct or implied sexual conduct, which may mean that what is “implied” sexual behaviour for one person, may not be the same for another person. Hence, the implied behaviour will depend upon the interpretation of a person. The definition also provides that harassment may be a verbal or non-verbal conduct. 

Moreover, the Act has further widened the definition of sexual harassment by providing that any of the following circumstances, related to sexual harassment, may also amount to Sexual Harassment:

(1) implied or explicit promise of preferential treatment in the victim’s employment;

(2) implied or explicit threat of detrimental treatment in the victim’s employment;

(3) implied or explicit threat about the victim’s present or future employment status;

(4) interferes with the victim’s work or creating an intimidating or offensive or hostile work environment for her and (4) humiliating treatment likely to affect the victim’s health or safety.

The Act has also defined Employer, Employee, Aggrieved Woman, Respondent and Workplace: “Employee” [section 2 (f)] has been defined as any person employed at workplace (regular / temporary / ad hoc / daily wage basis); directly or through an agent (including contractor); with or without the knowledge of principal employer; for remuneration or not, or working on voluntary basis or otherwise. The terms of employment may be express or implied and includes a co-worker / contract worker / probationer / trainee / apprentice. This definition is wide enough to practically include any person visiting an organization / company.

While, “aggrieved woman” [section 2 (a)] has been defined as a woman of any age whether employed or not, who alleges sexual harassment and a woman of any age who is employed in a dwelling place or house, “respondent” [section 2(m)], has been defined as a person against whom the aggrieved woman has made a complaint. Therefore, the Act considers women employed, not only in an organization but also in houses.

A debatable question regarding the definition of “aggrieved woman” is, whether it should have been “aggrieved person”, rather than “aggrieved woman”. Post the NAZ Foundation Judgment of the Supreme Court yesterday (December 11, 2013), a male member harassing or even consensually being involved with another male member will be illegal as section 377 of the Indian Penal Code (“IPC”) has been held to be constitutional by the Supreme Court. Hence, male – to – male harassment is not a question at all (as such a case will directly come within the purview of offenses under IPC) but considering the current scenario, where several women have been assigned senior posts in various organizations, is it not possible for a woman employed at a senior level to harass a male employee at a lower post in that organization?

Even though there was an absolute need to protect the women from sexual harassment, according to me, the definition should have been inclusive of men, and the Act should have been gender-neutral. In that case, the Act would have had under its umbrella not only those few rare cases where men are harassed, but would have also been a futuristic law based on equal rights of both men and women. In the present scenario, while women will have the facility to approach an internal complaint committee, set up for the purpose, men of the same organization will not have any such mechanism available, even in the presence of a committee.

Workplace [section 2 (o)] has been defined as private sector organisation / private venture / undertaking / enterprise / institution / establishment / society / trust / non-governmental organisation / unit or service provider and places visited by employee (arising out of or during the course of employment, including transportation provided by employer for undertaking journey). Hence, if harassment takes place even during transportation, the same will be covered under the Act.

How it will work? All the organizations / companies will first be required to constitute an Internal Complaints Committee (“ICC”), as per section 4 of the Act i.e. a presiding officer for ICC will have to be appointed, and it will have to be a woman at a senior level in that office. Also, half of ICC members will necessarily have to be women. Any aggrieved woman shall be able to file complaint of sexual harassment to ICC within 3 months of the incident, as per section 9. ICC, before it initiates inquiry, may try to concile between the parties, if the aggrieved woman requests (section 10). If conciliation is not possible, ICC will inquire into the complaint and give both parties a chance to be heard and complete the inquiry in 90 days. During the inquiry process of being heard, neither party will be allowed to bring their lawyer [Rule 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (the “Rules”)].

Post inquiry, ICC will have to prepare an inquiry report giving recommendations on the matter, in 10 days, and give a copy of the same to the organization / company and the concerned parties. The organization / company will have to act on the recommendations in 60 days. The Act also provides that if a victim is dissatisfied with the findings of ICC, she can appeal to a Court / tribunal as per section 18. ICC has been assigned with the responsibility to submit an annual report on the no. of cases that arose and got settled during the year to the Company.

Also, ICC has been given the power to provide temporary relief to the aggrieved woman during the pendency of the inquiry and may recommend transfer of either party to any other workplace or grant leave to aggrieved woman for 3 months, in addition to the entitled leave.

Punishment: If the respondent is found guilty, ICC may recommend that a certain sum be deducted from the salary of the Respondent and be paid to the victim and withhold promotion, terminate services etc. (as per Rule 9). However, in the end, if it is found that a person had filed a false complaint, the ICC may recommend the same punishment for the person filing such wrong complaint (as per Rule 10 of the Rules).

Also, if any person entrusted with any information related to complaints under the Act, makes such information public or known to media, he shall be penalized with an amount of Rs. 5,000, as per Rule 12 and Section 16.

According to me, the Rules should have provided that such amount collected by the employer shall be given to the victim, as compensation for mental trauma suffered post such publication. Presently, the Rules are silent on what the employer will do with such collected amount.

The Act also provides that the Employer shall be penalized with Rs. 50,000 if they do not constitute an ICC as per the Act and if they do not take the required action suggested by the Act in relevant cases (as per section 26).

Compensation to the victim: While determining compensation, ICC may take note of:

(1) mental trauma, pain, suffering and emotional distress caused to the victim;

(2) loss in career opportunity;

(3) medical expenses incurred by the victim for physical or psychiatric treatment;

(4) income and financial status of the Respondent; and

(5) feasibility of such payment in lump sum or in instalments (section 15).

Cognizance: Offences under the Act are non-cognizable (section 27) which means one cannot be arrested without a warrant.

However, as per the new section introduced in IPC, section 354A, sexual harassment which has been defined in the same manner as defined in the Act, has been made a cognizable offense. Which of the two legislations will prevail is a question and whether the act sexual harassment is cognizable or non-cognizable is also a question?