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SEXUAL HARASSMENT OF WOMEN AT WORKPLACE: LEGAL CONTOURS By: B S Dhall; Vijay Nagpal; R S Dhall & Hemant Joshi ( Web Designer)
Man is born out of woman and the word 'man' is included in the word
'woman'. But this slice or part has assumed the proportion of the
whole by reducing woman to an appendage of life, a parasite, a domestic
pleasure, a pleasure of resort. This
is the story of manmade civilization wherein lies the birth of tragedy of
woman.
[1] Sexual
harassment at workplace is a reality. A.T.N. Sofres Mode Survey
commissioned by The Week' concludes that 66% of working women reported
sexual harassment of different kinds at their workplace. 43% of them were
in the 21-30 age bracket and 75% of victims were married. [2]
In Indian socio-cultural milieu, where tolerance is considered to be the
noblest of all virtues and woman its most humble guardian, sexual
harassment at workplace may be much more in magnitude than depicted in the
survey. Sexual harassment is an offence, which can destroy human dignity
and freedom and confidence of the victim. Sexual harassment cases are
often considered exaggerated reaction of oversensitive women to normal
male flirting. The Rupen Deol Bajaj case.
[3]
of Punjab and Nalini Netto case[4]
of
Kerala has agitated the mind of every sensitive individual, more so
because the victims in both these cases belong to a very high social and
administrative hierarchy and so were their harassers. These two test cases
prove that probably every woman at workplace is vulnerable irrespective of
her status and position and similarly every male is capable of resorting
to what they call 'normal male flirting'. There is no special law, which
deals with sexual harassment of women at the work place. In absence of an
appropriate law on the subject, it would be difficult to make her know
that she has the legal right to protect her dignity and honour.
Unfortunately, the constitutional guarantee provided in Maneka Gandhi case[5]
that right to live includes right to live with dignity could not provide
required legal safeguards to working women at workplace in absence of
corresponding adequate legal provisions to fall back upon.
The Supreme Court, in absence of a special law on the point, has
formulated certain temporary measures for the protection of women at work
place in the Visakha case.[6] In absence of a special law to deal with sexual harassment at work place, the courts in India are dependent on three sections of the Indian Penal Code,[ 7] namely section 354 (outraging the modesty of a woman)[8], section 509 (insulting the modesty of a woman)[9]and section 294 (obscenity)[10]These sections, no doubt, provide for punishment to the offenders but fall short on safeguarding the interests of the victim woman at workplace completely. IPC is not designed to cater to the socio-cultural and psychological aspect of a social problem, which may be criminal in nature at times. It knows only to punish the culprit. Therapeutic approach is equally important in tackling deviant social behaviours like the sexual harassment at workplace. IPC is not a complete law to handle a complex issue like the sexual harassment at workplace and a special legislation is a must to provide complete and comprehensive socio- legal solution to the problem. In order to remedy the inadequacies in the existing law and to address the issue of "Sexual Harassment at Workplace" (Hereinafter referred to as SHW) in right perspective, the Supreme Court of India in Visakha v State of Rajasthan[11] has earnestly tried to delineate the concept of sexual harassment at workplace from sexual harassment of a woman in general. The
Supreme Court Guidelines in Visakha
Judgement The menace of SHW has been raping the psyche of Indian women since ages without any resistance or protest worth its name. The Supreme Court of India, for the first time, identified the problem in correct perspective and felt the need to sensitize the Managers of workplaces, Administrators in the Government and the policy-makers on this issue in the Visakha case.[ 12] In this case, the Supreme Court has held that in absence of a domestic law occupying the field, any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof and to promote the object of the constitutional guarantee. The apex court observed, "each incident of sexual harassment of women at workplace results in violation of the fundamental rights of 'Gender Equality' and 'Right to Life and Liberty."[ 13 ]
Another logical consequence of such an incident is the violation of
the victim's fundamental right under Article 19(I)(g) 'to practice any
profession or to carry out any occupation or trade or business'. The apex
court further observed that such violations attract the remedy under
Article 32 for the enforcement of these fundamental rights of women.
The guidelines in Visakha case have laid down certain norms, which
also take into consideration men who use or threaten to use economic,
social or organizational power in addition to the actual or threatened use
of force to overcome unwilling but subordinate, and therefore vulnerable
women. Sexual harassment at the work place has been defined by the Supreme
Court as unwelcome sexually determined behaviour (directly or by
implication), physical contact and advances; a demand or request for
sexual favours; sexually coloured remarks; showing pornography any other
unwelcome physical, verbal or non-verbal conduct of sexual nature. In the
Supreme Court guidelines, following action has been prescribed :-
It is the duty of the employer to prevent or deter acts of sexual
harassment;
It is the duty of the employer to provide procedure for resolution,
settlement or prosecution of acts of sexual harassment;
Where the conduct of the employee would constitute an offence under
the Indian Penal Code or any other law, the employer should initiate legal
action;
Where the conduct would, in addition to an offence under law,
constitute misconduct under the rules or regulations of the organization,
the employer should initiate disciplinary action against him;
A complaint mechanism should be created in the organization for
addressing complaints by victims. Such mechanism should be time bound;
The complaint mechanism should provide a complaint committee, a
special counsellor or support services and confidentiality should be
maintained;
The complaints committee should be headed by a woman; Half the
members of the complaint committee should be women;
Employee should be allowed to raise issues of sexual
harassment at workers'
meetings and
it should be discussed in employer - employee meetings;
Awareness of the rights of female employees should be created and
the guidelines of the Supreme Court should be prominently notified;
Where a third party is involved in sexual harassment, the employer
or the person in charge should take the necessary steps to support the
victim and assist in punishing the offender. The Supreme Court guidelines would apply equally to government departments, public sectors and private enterprises as well. The Visakha verdict has already seen application in the case of Apparel Export Promotional Council v Chopra.[ 14]The guidelines framed by the Supreme Court do not prescribe punishment for SHW. The existing penalties under the Indian Penal Code can be exhausted to bring the offenders to book in absence of a Special Law on the subject. However, the Supreme Court guidelines are not sufficient to tackle all the issues relating to SHW. It mainly brings home the point that SHW is an issue, which certainly deserves attention of the employer and the society in general. It identified the gravity of the problem and reminded the legislature of its responsibility to enact a suitable special law on the subject. Code
of Conduct at Workplace In an effort to promote the well being of all women employees at work place the National Commission for Women (NCW) has prescribed the following Code of Conduct at Workplace.[ 15] 1.
It shall be the duty of the employer to prevent or deter the
commission of any act of sexual harassment at
workplace. 2.
Sexual harassment will include such unwelcome sexually determined
behaviour by any person, either individually or in association with other
persons, or by any person in authority, whether directly or by
implication, such as:- Eve
teasing Unfavourable
remarks Jokes
causing or likely to cause awkwardness or embarrassment Innuendoes
and taunts Gender
based insults or sexist remarks Unwelcome
sexual overtone in any manner such as over telephone (obnoxious telephone
calls) and the like Touching
or brushing against any part of the body and the like Displaying
pornographic or other offensive or derogatory pictures cartoons pamphlets
or sayings. Forcible
physical touch or molestation Physical
confinement against one's will and any other act likely to violate one's
privacy And
SHW also includes any act or conduct by a person in authority and
belonging to one sex which denies or would deny equal opportunity in
pursuit of career development
or otherwise
making the
environment at the work place hostile or intimidating to a person
belonging to the other sex, only on the ground of sex. Explanation:
- Where any comment, act or conduct is committed against any person and
such person has a reasonable apprehension that It
can be humiliating and may constitute a health and safety problem, or It
is discriminatory, as for instance, when the woman has reasonable grounds
to believe that her objection would disadvantage her in connection with
her employment or study, including recruitment or promotion or advancement
or when it creates a hostile environment or It
would result in adverse consequences if she does not consent to the
conduct or raises any objection, it shall be deemed to be sexual
harassment.
Eve-teasing will include any person wilfully and indecently
exposing his person in such a manner as to be seen by other employees or
use indecent language or behave indecently or in a disorderly manner in
the workplace. It will also include any word, gesture or act intended to
insult the modesty of a woman by making any sound or gesture or exhibit
any object intending that such word or
sound shall be heard or that such gesture or object shall be seen
by such women or intrudes upon the privacy of a woman employee.
Sexual harassment of an employee means use of authority by any
person in charge of the management or any person employed by it to exploit
the sexuality or sexual identity of a subordinate employee to harass her
in a manner which prevents or impairs the employee's full utilization or
employment benefits or opportunities. It also includes behaviour that
covertly or overtly uses the power inherent in the status of the employer
or the head of the Institution or management to affect negatively an
employee's work experience or career opportunities and/ or to threaten,
coerce or intimidate an employee to accept sexual advances or making
employment decision affecting the individual or creating an intimidating,
hostile or offensive working environment.
It shall be the duty of the employer to prevent or deter the
commission of any act of sexual harassment at the work place.
All employers should take appropriate steps to prevent sexual
harassment of any nature. Express prohibition of sexual harassment should
be notified at the work place and also be published for the general
information of the employees and be evaluated in an appropriate manner
periodically.
Appropriate working conditions should be provided in respect of
work, leisure, health and hygiene to ensure that there is no hostile
environment towards women at the workplace and no women employee should
have reasonable grounds to believe that she is disadvantaged in her
employment in that organization because of her sex. Women
employees should not be treated as sex objects. No
male employee shall outrage or insult the modesty of a female employee at
the workplace. No
male employee shall make any type of sexual advances to woman colleagues
or woman subordinates.
The head of the organization shall constitute a Complaints
Committee as specified in the judgments of the Supreme Court i.e. the
Committee should be headed by a woman and not less than half of its
members should be women. Further
to prevent the possibility of any undue pressure or influence from senior
levels such Complaints Committee should involve a third party either a
non-governmental organization or other body who is familiar with the issue
of sexual harassment. Conducting
enquiry by the Complaints Committee: (i)
Any person aggrieved shall prefer a complaint before the Complaints
Committee at the earliest point of time and in any case within 15 days
from the date of occurrence of the alleged incident. (ii)
The complaint shall contain all the material and relevant details
concerning the alleged sexual harassment including the names of the
contravener and the complaint shall be addressed to the Complaints
Committee. (iii)
If the complainant feels that she cannot disclose her identity for
any particular reason, the complainant shall address the complaint to the
head of the organization and hand over the same in person or in a sealed
cover. Upon receipt of such complaint, the head of the organization shall
retain the original complaint with himself and send to the Complaints
Committee a gist of the complaint containing all material and relevant
details other than the name of the complainant and other details which
might disclose the identity of the complainant.
The Complaints Committee shall take immediate necessary action to
cause an enquiry to be made discretely or hold an enquiry, if necessary.
The Complaints Committee shall after examination of the complaint
submit its recommendations to the head of the organization recommending
the penalty to be imposed.
The head of the organization, upon receipt of the report from the
Complaints Committee shall, after giving an opportunity of being heard to
the person complained against, submit the case with the Committee's
recommendations to the management.
The Management of the Organization shall confirm with or without
modification the penalty recommended after duly following the prescribed
procedure. Disciplinary
Action : Where the conduct of an employee amounts to misconduct in
employment as defined in the relevant service rules, the employer should
initiate appropriate disciplinary action in accordance with the relevant
rules. Workers'
Initiative : Employees should be allowed to raise issues of sexual
harassment at workers' meeting and in other appropriate forum and it
should be affirmatively discussed in periodical employer - employee
meetings. Third
Party Harassment: Where sexual harassment occurs as a result of an act or
omission by any third party or outsider the employer and the person
in-charge shall take all steps necessary and reasonable to assist the
affected person in terms of support and preventive action.
This Code of Conduct is repetition and elaboration on the Supreme
Court guidelines in the Visakha case. In fact, it is a code of conduct as
well as a procedural code to handle SHW. But it is not sufficient. The
inadequacy and ineffectiveness of these guidelines is exposed in the
following news items; "A senior Central Excise officer today moved the Punjab and Haryana High Court seeking action against the Chief Commissioner of Central Excise, Chandigarh, Mr Kailash Sethi, for having allegedly sexually harassed her. The petitioner, who is presently posted as Commissioner, Central Excise, Chandigarh, has also prayed that the respondents be directed to make available the report of the committee on sexual harassment of women in workplace that dealt with on her complaint against the accused officer. Stating that Mr. Sethi, who took over as Chief Commissioner, Chandigarh Zone, on November 1, 2002, harassed her on a number of occasions, the petitioner has said that despite being reportedly indicted by the committee on sexual harassment of women in workplace, no action has been initiated against Mr. Sethi. The petitioner, who is a senior Indian Revenue Service officer, has also stated that fed up with Mr. Sethi's actions, she finally complained to the authorities on August 7, 2003, who referred it to the committee. The committee heard the contentions of both the sides. But, despite repeated reminders, the report of the committee and the action taken, if any, against the officer were not supplied to her. Today, after hearing her counsel, the Division Bench of Chief Justice Mr. Justice B.K. Roy and Mr. Justice Uma Nath Singh issued notice of motion to the respondents for December 16.[1 6] NHRC
Initiative The
National Human Rights Commission
(NHRC) has recommended a series of measures to be adopted by the
government departments and private institutions/ agencies to stop sexual
harassment of women at workplace and to set up complaint mechanism for
redressal of their grievances.
The Commission has directed setting up of a high-level committee to
consider sexual harassment of women in legal profession and recommend
punishment within a given time-frame.
The University Grants Commission (UGC) has been directed to ask all
universities to set up Complaints Committee without any delay. The Commission has also suggested setting up of a help-line for women to ensure safety and security of women passengers traveling by public transport. Anti-ragging measures should be devised and adopted in all educational institutions, the NHRC said in a release.[1 7] Draft
Legislation on SHW
The National Commission for Women has prepared
a draft
bill titled 'Sexual
Harassment of Women at Their Workplace (Prevention) Bill 2000.' The text
of the draft bill is as follows- Sexual
Harassment of Women at Their Workplace- (Prevention) Bill 2000
A bill to provide for the prevention of sexual harassment of women
employees at their workplaces by their employers, superiors, colleagues or
by anyone connected with the workplace and matters connected therewith: Be
it enacted by Parliament in the 50th year of the Republic of India as
follows:- 1.
(i) This
Act may be called the Sexual Harassment
of Women at Their Workplace (Prevention) Act 2000. It
extends to the whole of India It
shall come into force with immediate effect. 2.
In this Act unless the context otherwise requires Appropriate
Government means in relation to the centrally owned undertakings or
departments, the central governmental and in relation to the other
undertakings and departments, the state government. Employer
means-
In relation to an establishment which is under control of the
appropriate government a person or authority appointed by the appropriate
government for the supervisions and control of employees or where no
person or authority is appointed, the head of the department,
In relation to an establishment under any local authority, the
person appointed by such authority for the supervision and control of
employees or no person is so appointed, the chief executive officer,
In any other case, the person who or the authority which has the
ultimate control over the affairs of establishment or house and where such
affairs are entrusted to any other person whether called a manager,
managing director or managing agent or by any other name, such person (c)
Sexual harassment includes any act of verbal, or gestural sexual
advances, sexually explicit and derogatory statements or remarks,
unwelcome sexually determined behaviour as avoidable physical contacts,
and advances, touching or patting, suggestive remarks, pinching,
whistling, staring, sexually slanted and obscene jokes, comments about
physical appearances, compromising imitation, use of pornographic
materials, demands for sexual favours, threats, innuendoes, physical
assault and molestation of and towards women workers by their male
superiors, colleagues or anyone who in the time being is in a position to
sexually harass the women workers. (d)
Women means and includes a woman employed whether directly or
through any agency, for wages or for similar other considerations in any
establishment, house or industry. (e)
Workplace means-
a factory;
a mine;
a plantation;
an agricultural field;
a hospital or nurshing home;
a shop or business establishment;
a brick- kiln;
a construction site;
any banking establishment; any
government, semi government establishment or department including
telegraph office, post office, telephone exchange etc.,
any private office or house;
any school, college, university or like institution; an
establishment wherein persons are employed for exhibition of equestrian,
acrobatic and other performances,
any other such place, where a woman is
working. 3.
Notwithstanding anything contained in the Indian Penal Code or any
other law for the time being in force, whoever sexually harasses a woman
at a work place shall be punished with simple imprisonment for a term
which may extend to five years or with fine which may extend to twenty
thousand rupees or with both. 4.
Notwithstanding anything contained in any other law for the time
being in force, the onus of proving the innocence shall be on the accused
and the sexually harassed woman shall have the right to lead evidence in
rebuttal. 5.
Notwithstanding anything contained in any other law for the time
being in force, if an act of sexual harassment is committed at a work
place the supervisor, manager and managing director shall have the joint
responsibility towards the commission of sexual harassment in the
organization and section 34 of the Indian Penal Code shall be made,
applicable in their case. 6.
Notwithstanding anything contained in any other law for the time
being in force. The case of a sexually
harassed woman
at a work place shall
be pleaded either by herself or with her consent by women's organizations
or the trade union of which she is a member. 7.
The trial of a offence committed under this Act shall be held in
camera if the harassed woman so desires. 8.
Where the conduct of sexual harassment amounts to a specific
offence under the Indian Penal Code or under any other law, the employer
shall initiate action in accordance with law by making a complaint with
the appropriate authority ensuring that victims or witnesses are not
victimized or discriminated
against while dealing with complaints of sexual harassment. The victim of
sexual harassment should have the option to seek transfer of the
perpetrator or her own transfer. 9
Where the conduct of sexual harassment amounts to misconduct in
employment as defined by the relevant service rules, appropriate
disciplinary action should be initiated by the employers, in accordance
with these rules. 10.
Whether or not such action constitutes the offence under law or a
breach of the service rules, a complaint mechanism as stated in
sub-section (i) of section (11) shall be created in the employers
organization for rederessal of the complaint made by the victim. Such
complaint mechanism, should ensure time-bound treatment of complaints. 11.
(i) A complaints
committee shall be constituted consisting of five members headed by woman
and not less than half of its members shall be women. (ii)
It shall include a non-governmental organization or other body who
is familiar with the issue of sexual harassment (iii)
It shall make an annual report to the government department
concerned, of the complaints and action taken by them. 12.
Employees should be allowed to raise issues of sexual harassment at
workers meetings and in other appropriate forum and it should be
affirmatively discussed in employer-employee meetings. 13.
Where sexual harassment occurs as a result of an action or omission
by any third party or any outsider, employer and
person in charge will take all necessary and reasonable steps to
assist the affected person in terms of support and preventive action. 14.
(i) The appropriate government shall designate an officer, who
shall be a woman as far as may be, as it may deem fit to be the special
officer in every department or office under its jurisdiction to deal with
cases arising out of this act.
(ii) Special officers so designated under subsection (i) shall deal
with complaints lodged by female employees in her department or office or
establishment and shall forward it to the complaint committee constituted
under section 11 for investigation. 15.
The appropriate government shall appoint a district officer who
shall be a woman as far as may be other than those empowered under section
14(1) for every district to deal with cases arising out of the provisions
of this Act within the jurisdiction of that district. 16.
No person being an employer or manager or supervisor in charge of
the office/organization/ or factory/establishment or any other workplace
or any other employee or any other person shall indulge or cause to be
indulged in sexual harassment of woman employee. 17.
If any female employee
is subjected to sexual harassment she may approach the concerned district
level officer for redressal of her grievances. 18.
As soon as the complaint has been lodged with the district level
officer she shall direct to the concerned employer to forward it to the
Complaint Committee constituted under subsection (i) of section 11 to
enquire into the facts and circumstances of the complaint and to send a
report to her. 19.
If after enquiry the district level officer receives a report
against any person guilty of violating the provisions of this Act,
in case the guilty is an employee of the government she shall
recommend to the appropriate authority for taking such disciplinary action
as she may deem fit.
in case the guilty is not employed in government service she shall
recommend to the employer or other person in charge of the affairs of the
organization where the accused is employed for taking such action as she
may deem fit. 20.
It will be the duty of the employer to inform the Complaint
Committee and district level officer of the disciplinary action initiated
against the accused. 21.
If it is brought to the notice of the district level officer that
no action has been taken by the employer or the person in charge or the
affairs of the organization where the accused is employed- in
case it is an office or establishment under the control of the appropriate
government the appropriate government may terminate the services of both
the accused person and the person in-charge of the office where the victim
is working. in
case a workplace where the victim is employed is not under the control of
the government, the facilities and concessions extended to that
organization by the appropriate government shall be withdrawn forthwith. 22.
A district level officer, while discharging her functions under the
provisions of this Act, shall have the powers of a civil court and the
proceedings thereof shall be in accordance with the Civil Procedure Code,
1908. 23.
The Central Govt. may, by notification in the official gazette,
make rules for carrying out the provisions of this Act.
A debate is going on at the national level on efficacy of the
contents of the 'draft bill'.
The 'draft bill' reflects
genuine concern of the National Commission for Women
(NCW), on the issues relating
to SHW.
Law
represents the collective wisdom of the society. Any bill should be
studied threadbare before it becomes an Act. Law making is a very complex
and long drawn process. Overzealous attitude and victim syndrome should
never be allowed to govern the process of law making. Law is a reflection
of realities. Let emotions not be the only guiding factor when it comes to
drafting of a law, especially a social legislation. A critical study of
the draft bill would certainly enhance its acceptability. A
critique of the draft bill The
title of the bill suggests that it is meant to tackle the problem of
workingwomen at their workplace only. The title conveys a very limited and
fragmented meaning of the whole issue. In fact, sexual harassment of women
at workplace should include sexual harassment of every woman who happens
to be at a workplace irrespective of the purpose of her being there. The
objective of the legislation should have been to remove all irritants from
the workplace which may deter any woman from going to a work place,
whether as a working woman, customer, client or otherwise and, as a
consequence deny her the equal opportunity at workplace as guaranteed by
the Constitution of India. Since the act of sexual harassment by the
employer may be at a place
which is technically not her workplace e.g. the employer, without
invitation, drops in at woman employee's residence and does an
objectionable act or woman employee is invited by the employer at some
public place etc. so in such a case the draft bill may be titled as
'Sexual Harassment of Women Regarding Their Employment (Prevention) Bill
2000.
The aim of the legislation as stated in the draft bill is to
provide for the prevention of sexual harassment of women employees at
their workplace by their employers, superiors, and colleagues or by anyone
connected with the workplace and matters connected therewith. The preamble
of the draft bill does not communicate the whole spirit behind the Supreme
Court judgment in the Visakha case. The Supreme Court observed; "each incident of sexual harassment of women at workplace results in violation of fundamental rights of 'Gender Equality' and 'Right to Life and Liberty'. A logical consequence of such an incident is the violation of the victim's fundamental right under Article 19(I)(g) 'to practice any profession or to carry out any occupation or trade or business'.[1 8]
The Supreme Court of India has clearly brought out the need to
create conducive work environment at workplace so that every woman feels
free and equal to a man at a workplace. Any irritant which may thwart the
objective of guaranteeing equal opportunity at workplace to both man and
woman is to be removed.
The preamble of the draft bill aims only for the prevention of
sexual harassment of women employees by their employers, superiors and
colleagues or by anyone connected with the workplace and matters connected
therewith. A workplace is generally a public place where the employer, the
employee, the client, or even a passer-by have free access. Any woman who
happens to be at a workplace may be subjected to sexual harassment by a
man who may not be her employer, superior, colleague or anyone connected
with the workplace. The aim of the proposed legislation as envisaged in
Visakha judgment is to make a workplace safe and free from sexual
harassment of any and every woman so that she does not hesitate to be at a
workplace in her capacity as a woman, thereby, guaranteeing her 'Gender
Equality' and the fundamental right under Article 19(I)(g). Therefore the
phrase 'women employees at their workplace' in the preamble needs to be
replaced by the phrase 'women employees or any other woman who happens to
be at a workplace.' Similarly the phrase 'anyone connected with the
workplace' may be replaced by 'anyone connected or unconnected with the
workplace.'
The definition of the term 'employer' given in section 2
(b) does not appear to be complete. The definition does not take
care of the women workers in the unorganized sector adequately.
The word 'house' in section 2 (b)(iii)
may be
replaced by the phrase
'business house, residential house, commercial complex or any open
workplace.' An employer may not be called a Manager, a Managing Director
or by any specific designation always. He may be just a male without any
designation who has authority over the female worker at her workplace.
This point may be incorporated in the definition of employer to make it
more exhaustive. The relationship of the person in authority with the
volunteers in a voluntary organization and non-governmental organization
(NGO) may be defined as an employer - employee relationship in the
definition of employer. The definition should be inclusive and not
exhaustive.
In the definition of 'sexual harassment' in section 2(c), the word
'women workers' may be replaced by the phrase 'women workers or any woman
who happens to be at a workplace'. Subordinates and any other man at
workplace are also capable of causing sexual harassment and may be
included in the definition as harasser.
The definition of 'woman' given in section 2 (d) appears to be
incomplete. It does not include woman volunteers who work for a voluntary
organization or NGO with or without any remuneration or a woman who wishes
to persue her career as a social worker in the field of community service.
The phrase 'establishment house' in the definition may be replaced by the
phrase 'establishment, organization, house, residential house of the
employer, colleague or the victim etc. or any other workplace'.
The
definition of the term 'workplace' given in section 2(e) should be
'inclusive' and not 'exhaustive', therefore, the phrase 'workplace
means' should be replaced by the phrase 'workplace includes'.
Following workplaces may be added to the list given in section
2(e): Residential
house of the employer, victim or any other house. Cinema
hall Play
ground/Parade ground. Public
Transport System including bus, train, ship and aeroplane. Religious
institutions and religious places. Office
of non-governmental organization (NGO) or of voluntary organization. Any
private office/workplace of a professional/ employer Courts. Any
other workplace. Any
other place connected with work.
Following two definitions need to be included in section 2 to make
the amended preamble more meaningful- Any
Woman at Workplace. Any
other Male at Workplace. The offender in sexual harassment cases is not only a criminal to be punished, but also a patient to be treated.[1 9]Sexual harassment at workplace is not always the result of criminal intention and, hence, does not warrant traditional penal consequences in each and every case.Provisions
contained in section 4 of the 'draft bill' shift the onus of proof on the
accused person in contravention of the established principles of criminal
jurisprudence that the prosecution has to prove the guilt of the accused
person beyond all shadow of doubt. Sexual harassment at workplace, no
doubt, is degrading and humiliating to the victim but definitely does not
warrant shifting of the onus of proof on the accused. Presumption of the
guilt of the offender would be equally humiliating and degrading to the
accused in our social milieu. In our quest to do justice to a victim of
sexual harassment, care must be taken that the reputation of the alleged
offender is also not harmed without cogent reasons. It would therefore be
the right course to not to shift the onus of proof on the alleged
offender.
Section 5 of the draft bill provides that if an act of sexual
harassment is committed at a workplace, the supervisor, manager and
managing director shall have the joint responsibility towards the
commission of sexual harassment in the organization and section 34 of the
Indian Penal Code shall be made applicable in their case. Probably, the
spirit behind the concept of joint responsibility given in section 34 of
the Indian Penal Code has been misunderstood.
To attract section 34 of the IPC, the following three conditions
must exist viz: A
criminal acts must be done by several persons; (ii)
There must be common intention;
(iii) There must be participation of all in the commission of offence in furtherance of that common intention[ 20]
By no stretch of imagination, application of section 34 of the IPC,
as suggested in section 5 of the draft bill, is justified. An employer,
supervisor, manager, managing director cannot be asked to stand guarantee
to the sexually deviant behaviour of the workers employed by him. It would
be criminal to book the employer, supervisor, manager, and managing
director along with the offender of sexual harassment by applying the
principle of joint responsibility towards the commission of sexual
harassment in their organizations. The employer, supervisor, manager,
managing director etc., however, may be made liable to take up measures to
prevent sexual harassment in the organization and ensure that necessary
action is taken against the offender as per the law if such an incident is
reported to them by a victim. However, the concept of vicarious civil
liability of the employer can be imported from the rulings by U.S. Supreme
Court. In Harris v. Torklift Systems (1993) the U.S. Supreme Court ruled
that an abusive and hostile work environment is illegal even if the
employee charging harassment did not suffer psychological damages. In
Burlington Industries v. Ellerth (1998) it was again ruled by the court
that even if the harassed employee did not suffer any significant danger
the employer may still be held liable for the harassment and the employee
can recover against the employer.
Women's organizations and trade unions etc. have been empowered to
plead the case of victim of sexual harassment at workplace if the victim
so desire as per provisions of section 6 of the 'draft bill'. While
incorporating such revolutionary provisions in the law, law makers should
pay adequate attention and be aware of the distortions and harm which
overzealous media trial and publicity oriented approach is capable of
bringing in the conduct of free and fair investigation and trial. The need
to represent the victim in the court by a lawyer, however, is well taken.
It should be ensured that the harassed woman has sufficient means to
engage a lawyer to represent her case in the court. Legal aid and services
of government pleader can always be provided to the victim, if need be,
and mandatory provisions in this regard may be included in the bill. First Information Report is the most important single document on which the courts rely the most during trial of a criminal case. Those who know investigation and have experience of conducting trial in the court cannot support the provisions given in Section 8 of the draft bill which provide that if a case of sexual harassment amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate action in accordance with law by making a complaint with the appropriate police authority. FIR should always be the original account of the incident. It should remain unadulterated, whatever may be the circumstances. The victim herself should become direct complainant before the police. If the employer is allowed to become the complainant for the victim, the prosecution case would be weakened. In criminal law, hearsay evidence is no evidence. If the employer is asked to initiate criminal proceedings on behalf of the victim by making a complaint, the evidentiary value of such a complaint would be nothing but a hearsay which is no evidence.[ 21]Therefore, provisions of section 8 of the 'draft bill' need thorough deliberations. Criminal proceedings should be initiated and conducted according to the procedure established in the Cr. P.C. and every evidence so collected in the process should be admissible one as per the Indian Evidence Act. Responsibility of the employer to ensure that the case is reported to the appropriate police authority by the victim, however, can be ascertained by incorporating other suitable provisions in the bill.
Section 8 of the proposed draft bill gives a legal right to the
victim of sexual harassment at work place to seek transfer of the harasser
or her own transfer. It would
not be appropriate to make the option of transfer a legal right.
However, in serious case of sexual harassment, the employer should
be under obligation to transfer the harasser until proved innocent.
Suitable provisions in this regard can be incorporated in the rules rather
than in the law to reduce the probability of misuse of such a legal
provision.
As per provision of section 9 of the 'draft' bill, the employer is
duty bound to initiate appropriate disciplinary action against the
perpetrator of SHW if sexual harassment at workplace is defined as
misconduct in the relevant service rules of the employee. This provision
appears to be insufficient. The provision declares that the employer is
under obligation to take disciplinary action against a harasser only if
sexual harassment is defined as a misconduct in the service rules of the
employer. What about those harassers whose service rules are either not
framed or do not list sexual harassment as a misconduct?
In fact, the right approach would be to declare in the bill itself
that sexual harassment at workplace would be a grave misconduct henceforth
in the service conditions/service rules of all the employees in all the
sectors of employment. It
should be made mandatory in the law that the employer shall immediately
take appropriate disciplinary action against the perpetrator of sexual
harassment at workplace in addition to criminal proceedings, which the
victim might prefer.
Every employer shall provide a complaint mechanism as stated in
sub-section (i) of section 11
of the draft bill for redressal of complaints made by the victims in the
organization. A time bound
disposal of complaint has been made mandatory but no time limit has been
prescribed in section 10. The
delay in disposal of a complaint would dilute the effect of the whole
exercise and would certainly add insult to the victim injury.
It should be made mandatory that the complaint mechanism should
dispose off the complaint within 30 days of its reporting.
The constitution of the complaints committee,
as envisaged in Section 11 of the draft bill,
is not specific. The employer should not be given an option to
constitute a complaints committee, which suits the organization.
The members
of the
complaints committee should be specified either by name or by
designation. Lady advocates having a minimum of 5 years of experience at
bar or a class -I lady
officer of the State or the Central Government may be included in the
complaints committee to make the complaints committee more transparent,
independent and fair. |
