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SEXUAL HARASSMENT OF WOMEN AT WORKPLACE
Glimpses of Practices within the Organised Sectors in India
If you open the papers to read about the cases across India on sexual harassment, you will be shocked, sad, baffled, agitated and will feel helpless at the same time. From street vendor to police departments, to esteemed judges to hospitals , to regular offices to entrepreneurs– women’s dignity has been ripped apart blatantly and openly at workplaces despite the fact that India has the lowest ratio of working women in the world. If one had to dig into statistics one would find that rape in India is one of the most common crimes against women. As per recent statistics, 93 rapes are reported every single day in India and 27% of the accused are convicted. Clearly, ‘You can tell the condition of a nation by looking at the status of its women.’
Recently media widely reported about a lab assistant who set herself ablaze outside the Delhi Secretariat and succumbed to injuries. She was protesting against sexual harassment she faced from the college principal and termination from job. She repeatedly filed complaints with several authorities including the University, but in vain. Such incidents highlight break down of grievance redress mechanisms within the organisations and throw light on the predicament of women facing sexual harassment at workplace in India.
The international agencies have been consistently drawing attention towards the existence of sexual harassment across countries in the world; it continues to be a neglected area for many employers. This is apparent in the UNDP (2010) report which reveals that despite the growing number of women in the paid workforce understanding about the issue is emerging only slowly in Asia-Pacific region.
Most of the researches reveal by the survey done in India that, in terms of who is most likely to be harassed in the workplace are most likely women. A survey study (2009) stated gender bias in recruitment, gender inequality and sexual harassment at work place as major issues affecting women and influencing attrition rates of women in larger companies where in managerial positions the ratio of women dwindled further. Amongst all the twenty-two countries covered by the IPSOS – Reuters survey (2009), India recorded highest incidence of sexual harassment. Similarly Center for Transforming India survey (2010) revealed that nearly 88 percent of women witnessed some form of workplace sexual harassment during the course of their work.
The mechanism for dealing with sexual harassment was first spelt out in 1997 as Supreme Court of India for the first time acknowledged the existence of sexual harassment at workplace, and the need for legal recourse for the same in its landmark decision i.e. Vishakha and Others vs. State of Rajasthan and Others (1997). In response to a petition filed by women’s groups to oppose lower court judgment, the apex court gave a landmark judgment on 13th August 1997. Incorporating a broad reading of the Constitution, the Vishakha judgment recognised that sexual harassment violated Article 14, 15, 19(1)(g) and 21 of the Constitution.Where it gives the guarantee of gender equality, women’s fundamental rights to life with dignity, to personal liberty, and to carry on any occupation. Supreme Court also laid outlined the guidelines making it mandatory for the employer to provide for a mechanism on gender equality.
It took 16 years for the government of India to bring the Sexual Harassment of Women Act to be a reality. Act has effectively adopted and revised the guidelines laid down in the Vishaka judgement with added provisions of rigour and compliance.
1. Act mandates every office with 10 or more employees to have an internal compliant committee for grievance redressal.
2. Act is not gender neutral and provides protection only to women employees.
3. The ambit of the Act includes organised as well as unorganised sector, women working in organisations or as domestic help.
4. The roles and responsibilities laid down under the Act have been listed down below:
a. Section 4 – employer, by order in writing, constitute a Committee called Internal Complaints Committee and including at such places where there are offices or administrative units of the workplace. i. The committee shall have 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 and shall be paid such fees as may be prescribed.
ii. One half of the total members in the Committee shall be women.
iii. The members along with the presiding officer shall hold office for a period not exceeding three years from the date of nomination.
b. Section 11(3) vests same powers to the committee as are vested in the civil courts under the Code of Civil Procedure, 1908 when trying a suit with respect to the following matters:
i. Summoning or enforcing the attendance of any person and examining him on oath;
ii. Requiring the discovery and production of documents; and
iii. Any other matter as may be prescribed. However, nothing has been prescribed as of yet in this regard.
c. Further Section 19 also talks about the duties of the employer.
5. Where the employer fails to constitute an Internal Committee or fails to take action under the Act he shall be punishable with a fine which may extend upto Rs. 50,000.Offence under this section is non-cognizable.
6. Where an employer is twice convicted for an offence punishable under this Act it may lead to cancellation of license required for carrying out business activity or imposition of twice the punishment from that imposed in the first instance. Hence all complaints are to be disposed off within a period of 90 days from the date of intimation, failing which penalty will be imposed on the organisation and repeated non-compliance can lead to cancellation of license or registration of the organisation.
It is certain that many victims will shy away from the publicity, the procedures, the delay and the harshness in the criminal justice system, this alternative structure and process is welcome, but needs much alteration. Helping the victims to make informed choices about the different resolution avenues, providing trained conciliators, settlement options by way of monetary compensation, an inquisitorial approach by the Committee, naming the victim by use of words like complainant etc. and not using her actual name and in-camera trials are some areas of improvement. Apart from this, we need something else which the legislation cannot provide- the mindset to understand the fears, compulsions, and pressures on women victims. The legal concept and test of a “reasonable man” should give right of gender to that of a “reasonable woman” as well.
The legislation appears to be further excessive in the redressal mechanisms which it has established by leaving short-comings in the powers and functions of these non-judicially equipped bodies. Moreover, some provisions could have been more leaning to the female victim, such as the provisions for conciliation and punishment for false or malicious complaints. The overall impression provided by the Act is that it is not well drafted, with sufficient reasonable foresight of the harsh effects of its implementation. These problematic provisions and unanswered questions present a conundrum for application of the Act, and remains to be clarified.
Even though there are many loopholes in the act this Act was much needed considering, the rapid increase in the number of crimes against women in the last decade. Though we cannot predict whether the number of crimes against women will come under a check but one thing that we are, at least, sure of is – it will serve to improve awareness about the obligations of employers and rights of employees in case of an offence of sexual harassment at workplace. We hope with this new law in place, the large number of offences against the women, which mostly remains unnoticed, will decrease in time to come.
By:
TANYA GUPTA
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