Dr. Varun Chandran A
Sexual harassment of women at the workplace is conventionally divided into two forms. The first one, the ‘Quid pro Quo’ (this for that), means seeking sexual favours or advances in exchange for work benefits. The second form is by creating a ‘hostile work environment’. This less clear, more pervasive form involves unbearable work behaviours towards a female worker, though she is not promised or denied anything. Sexual harassment against women in the workplace is a grave concern that demands attention.
Till the latter half of the ’90s, the issue of sexual harassment against women at workplaces was not well addressed by Indian laws. In its celebrated benchmark judgment in the Vishakha Ors. Vs. State of Rajasthan, in 1997, the Supreme Court of India defined sexual harassment for the first time in the history of Indian law. In this case, the apex court set a benchmark guideline to be followed while dealing with complaints of sexual harassment at the workplace until new legislation takes its place. With the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, followed by notification of Rules in 2013, a permanent institutional framework for addressing the issue of workplace sexual harassment was established concerning each working woman of the country. A robust redressal mechanism came in place to deal with issues of every single woman who works in any workplace, including the informal job sectors like those of domestic help.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013
It was enacted as a comprehensive response to the growing workplace sexual harassment of women. The act provides a robust legal framework to deal with all practical aspects of the issue. It defines sexual harassment broadly, encompassing any unwelcome verbal, non-verbal, or physical conduct with a sexual intent. This definition acknowledges the multifaceted nature of harassment and ensures a comprehensive approach to addressing it. The Act defines ’employee’ and the ‘workplace’ very inclusively. As per the act, an employee is a person employed at the workplace for any work on regular, temporary, ad-hoc or daily wages basis, either directly or through an agent, including a contractor, whether for remuneration or not, or working as a voluntary co-worker, a contract worker, probationer, trainee, apprentice, or any other such name. A cornerstone of the Act is the establishment of an Internal Complaints Committee (ICC) in workplaces with ten or more employees. The committee consists of a Presiding Officer, a woman employed at the senior level in the workplace, nominated by the employer. At least two more members have to be nominated by the employer from the employees who are committed to the cause of women, have had experience in social work, or have legal knowledge. One member has to be selected from outside the organisation, from amongst non-governmental organisations (NGOs) or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. In the committee, at least one-half of the members must be women.
A similar Local Committee (LC) has to be constituted per the Act at each district level, dealing with women employees of the informal sector. These committees serve as the first line of defence against harassment. Internal Complaints Committees or Local Committees are responsible for receiving complaints, conducting inquiries, and recommending appropriate actions as per the applicable service rules. Their formation ensures a safer environment where victims can voice their concerns without fear of reprisal.
The Act recognises that awareness and education are pivotal in preventing harassment. As per the Act, employers must conduct workshops and awareness programs to sensitise employees about sexual harassment. These initiatives inform individuals about their rights and foster a culture of respect, equality, and zero tolerance for harassment. The Act safeguards victims and witnesses against retaliation. It prohibits any adverse action against the complainant or witnesses as a consequence of filing a complaint. This provision emboldens individuals to come forward, confident that their actions will not lead to professional or personal repercussions. To enforce compliance, the Act prescribes penalties for non-adherence even to the employer. Such punitive measures emphasise the government’s commitment to creating a harassment-free workplace environment.
Complaints Committees, mechanisms for complaining and redressal.
Since it is an in-house resolution mechanism, neither party is allowed legal representation at any stage of the committee’s inquiry proceedings. The aggrieved woman or any other person on her behalf (with her expressed permission) can give a detailed written complaint to the concerned committee within three months of the alleged harassment incident. If convinced that the time lag is justifiable, the committee is mandated to investigate complaints of older harassment cases. If the woman needs help preparing a complaint, the committee is duty-bound to address that issue compassionately. Along with the complaint, the aggrieved woman should submit all the supportive documents, including pieces of evidence and the list of witnesses she wants to produce to prove her side. If interested, the aggrieved women can resolve the issue by conciliation process, i.e., not by going through a formal inquiry. In that case, the committee shall conduct the conciliation process, reach a settlement, recommend punitive actions, and report the same to the employer. Suppose the aggrieved woman is not willing to a resolution under conciliation. In that case, the committee should initiate the inquiry by sending the respondent a copy of the complaint and seek his reply in a stipulated time frame.
After receiving the response along with the list of witnesses and documents from the respondent’s side, the committee shall examine the evidence and witnesses in front of them. All the aspects of the case have to be considered, and the decision should be reached based on the principle of ‘natural justice.’ All the proceedings shall be documented in detail. After concluding the inquiry, the committee prepares a detailed report, including the recommended punitive actions per the binding service rules. It sends the same to the disciplinary authority, i.e., the employer, within ten days of completion of the inquiry. If the committee thinks the allegation was not proved in the proceedings, the same has to be reported. The committee is duty-bound to complete the investigation within ninety days of receipt of any complaint. The committee sends one copy of the report to the complainant and the respondent. Any party not accepting the conclusions or recommendations of the Committee can approach the appellate authorities prescribed within ninety days of submission of the report. Throughout the inquiry process and even after the punitive actions, all information on the complainant, witnesses, respondent, evidence of the matter and the action taken should be kept confidential by the committee and the employer. The committee is entitled to give some interim reliefs for the aggrieved during the pendency of inquiry as per her request. This includes the transfer of her, any witness or the respondent to any other workplace or granting leave to the aggrieved for a maximum duration of ninety days.
The way forward:
Creating awareness is the first step toward addressing workplace sexual harassment. Government agencies, non-governmental organisations (NGOs), and private sectors should collaborate to spread awareness about the laws, the importance of the Complaints Committees, and the avenues available for reporting harassment. Efforts should be directed at ensuring that Complaints Committees are effectively established and operational in all workplaces. This involves proper training for committee members, clear investigation guidelines, and regular monitoring to guarantee their efficacy. Breaking the silence around sexual harassment requires building trust in the reporting mechanism. Employers must assure confidentiality, protection against retaliation, and swift action upon receiving complaints. Anonymous reporting channels can further empower victims who fear social or professional consequences. Workplaces must provide access to support systems, such as counsellors or helplines, where victims can seek guidance and emotional support. These systems can be critical in helping victims cope with the aftermath of harassment.
(The author is an Assistant Professor at the Department of Forensic Medicine & Toxicology and a member of the Internal Complaints Committee, AIIMS Vijaypur, Jammu.)
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