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AN ANALYSIS OF: SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT



Introduction


The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, is an act passed by the Indian Legislature with the aim of protecting women from sexual harassment at their place of work and also for providing a mechanism for redressal of complaints relating to sexual harassment and all the matters incidental to it[1]. This legislation owes its origins to the landmark case of Vishaka Vs State of Rajasthan[2] which was the result of a brutal gang rape of a publicly employed social worker in a village in Rajasthan during the course of her employment. It was an unprecedented judgement wherein the honorable Supreme Court provided the first authoritative decision on Sexual Harassment in India and addressed the statutory vacuum that existed prior to this case through the route of judicial legislation[3].


Background: (Vishaka V. State of Rajasthan)


The attention of the Supreme Court was drawn towards the need for a legislation addressing the issue of sexual harassment at workplace in the case of Vishaka V. State of Rajasthan which began when Bhanwari Devi, a village level worker in Rajasthan government’s Women Development Programme tried to stop a child marriage on 5th may 1992. Then on 22nd September 1992, she was allegedly gang-raped by 5 men from her village, supposedly in retaliation for opposing the child marriage[4]. The district court acquitted the five accused and Bhanwari Devi could not find any justice at the Rajasthan High Court either. Angered by this state of affairs, a women’s rights group called “Vishaka” filed a Public Interest Litigation in the Supreme Court of India, which then resulted in the landmark judgement and promulgation of the Vishaka Guidelines by the Court[5].


Sexual Harassment definition


In the case of Vishaka V. State of Rajasthan, the Supreme Court defined sexual harassment as “such unwelcome sexually determined behavior as physical contacts and advance, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions”[6].

The court further went on to say that “Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.”


The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, relies on the above definition given by the supreme court and defines sexual harassment to include “any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: physical contact and advances; a demand or request for sexual favours; or making sexually coloured remarks; or showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature;”[7]


Section 3 of the act further provides a list of circumstances, among others, the presence of which in relation to any behavior may amount to sexual harassment towards a woman. These circumstances include any implied or explicit promise of preferential or detrimental treatment in her employment; or any implied or explicit threat about her present or future employment status; or interference with any of the work of such employee or creating an intimidating, offensive or a hostile work environment for her; or subjecting the employee to humiliating treatment likely to affect her health or safety[8].


Employer’s duties under the Act



The act imposes a wide range of duties on the employers in order to ensure speedy and adequate redressal of grievances relating to sexual harassment of female employees. These include the following:

  1. For the women’s rights activists in India, it has been a long and uphill battle from the time and era in which the case of Bhanwari Devi gang rape took place in 1992, through the painstakingly slow series of court trials, the landmark Supreme Court judgement to finally the passing of this legislation. While all of this is a significant achievement, it does not mean that enough has been done to ensure the safety of women in the Indian society. While we do have something to feel happy about with regards to the passing of this act with the Vishaka guidelines as its main guiding principles, the task of fighting for equality between the genders still remains a daunting and uphill battle.

  2. It is also mandatory for every employer to constitute an internal complaints committee (ICC)which must have a minimum of four members, at least half of whom are women, whose job it would be to hear and entertain the complaints made by any aggrieved women. In addition to this, ICC should consist of i) a Presiding Officer, ii) not less than two members from amongst employees preferably with some experience in social work or have legal knowledge relating to the subject and iii) one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment[10].

  3. The employer is further required to organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed[11].

  4. A very significant duty of the employer is also to provide assistance to a woman employee if she chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force[12];

The employers are not however held vicariously liable under this act therefore they are not required to pay the compensation awarded to the employee. The person convicted of the harassment alone is liable for this[13].


In order to deal with complaints coming from establishments where no ICC exists because less than 10 people are employed in such premises, the act under Chapter III, stipulates and lays down the need and governing rules for a Local Complaints Committee (LCC)[14].


Procedure for filing a complaint


Chapter IV of the Act deals with the procedure for complaints filed by employees. Under section 9 of the act, an aggrieved woman may file a complaint of sexual harassment at work in writing to the ICC or the LCC if an ICC has not been constituted, within a period of three months from the date of incident and where the case involves a series of incidents, within a period of three months from the date of last incident[15]. If due to any circumstances, the complaint cannot be made in writing, the Presiding Officer or any Member of the ICC or the LCC, as the case may be are duty bound to render all reasonable assistance to the woman for making the complaint.


Further, in cases where the aggrieved woman is unable to make a complaint because of any physical or mental incapacity or death or any other such reason, then her legal heir or such other person as may also be prescribed to make a complaint[16].


Conclusion


The fight for equal rights for women in the Indian society has been going on since time immemorial. Through various legislations such as the Equal Remunerations Act 1976, The Commission of Sati (Prevention) Act, 1987, The protection of women from Domestic Violence Act, 2005,etc., the Indian Legal systems has been making slow and steady strides towards creating a society where everyone is treated equally irrespective of caste, creed, race, class or gender and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, is a significant step in that direction. This act is the first legislation in India which addressed the problem of sexual harassment.


For the women’s rights activists in India, it has been a long and uphill battle from the time and era in which the case of Bhanwari Devi gang rape took place in 1992, through the painstakingly slow series of court trials, the landmark Supreme Court judgement to finally the passing of this legislation.

While all of this is a significant achievement, it does not mean that enough has been done to ensure the safety of women in the Indian society.

While we do have something to feel happy about with regards to the passing of this act with the Vishaka guidelines as its main guiding principles, the task of fighting for equality between the genders still remains a daunting and uphill battle.

[1]The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Preliminary.

[2]Vishaka and ors. V. State of Rajasthan and ors., AIR 1997 SC 3011

[3]Fp staff, '' (Sexual harassment and Vishakha guidelines: All you need to know,)<http://www.firstpost.com/india/sexual-harassment-and-vishakha-guidelines-all-you-need-to-know-1241649.html> accessed 16 September 2015

[4]Apurva, '' (Sexual harassment at workplace,)<http://archive.indianexpress.com/news/sexualharassmentatworkplace/571636/> accessed 16 September 2015

[5]PuneetWadhwa, '' (Sexual harassment at workplace: What are Vishakhaguidelines?, )<http://www.business-standard.com/article/current-affairs/sexual-harassment-at-workplace-what-are-vishakha-guidelines-113112300188_1.html> accessed 16 September 2015

[6]Supra note 2

[7]Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, Section 2(n).

[8]Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, Section 3.

[9]Clide and Co. LLP, '' (New law on sexual harassment in the workplace in India, )<http://www.lexology.com/library/detail.aspx?g=2c90ff0f-8aad-47aa-a552-9d56a5cef509> accessed 16 September 2015

[10]Rajdutt S. Singh, '' (India: Overview Of The Sexual Harassment Of Women At Workplace, )<http://www.mondaq.com/india/x/348338/employment+litigation+tribunals/Overview+Of+The+Sexual+Harassment+Of+Women+At+Workplace> accessed 16 September 2015.

[11]Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, Section 19.

[12]ibid

[13]Supra note 9.

[14]Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, Chapter III.

[15]Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, Section 9.

[16]ibid

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