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LATEST NEWS UPDATES | Bill on Sexual Harassment: Against Women’s Rights by Geetha KK

Bill on Sexual Harassment: Against Women’s Rights by Geetha KK

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published Published on Jan 17, 2012   modified Modified on Jan 17, 2012

In the absence of legislation to protect women from sexual harassment at the workplace, the Supreme Court in 1997 laid down guidelines in the Vishaka vs State of Rajasthan in 1997. Thirteen years later, Parliament came up with the “Protection of Women against Sexual Harassment at Workplace Bill, 2010”. However, the Bill sees sexual harassment at the workplace not as a criminal offence but as a mere civil wrong, the remedy for which is compensation. The Bill, now with a parliamentary committee, proposes conciliation immediately after filing of a complaint before an internal committee and does not provide for a proper enforcement machinery for realising the rights laid down in the proposed legislation.

Geetha K K (kaykaygeetha@gmail.com) is with the Amity Law School, Delhi.
 
The protection against sexual harassment and right to work with d­ignity are universally recognised h­uman rights under the various inter­national conventions, such as the Con­vention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979, which has been ratified by India in 1993. The convention gives positive affirmation to the principle of equality by r­equiring the ratifying countries to take all appropriate measures, including, enactment of legislation for guaranteeing w­omen the exercise and enjoyment of h­uman rights and fundamental freedoms at par with men.
 
Sexual harassment is a violation of women’s right to equality, life and liberty. It creates an insecure and hostile work e­nvironment, which discourages women’s participation in work, thereby, adversely affecting their social and economic empowerment and the goal of inclusive growth. Sexual harassment permeates all strata, ranging from the unorganised s­ector to the corporate.
 
Judicial Lawmaking
 
In India the development of law on sexual harassment is of recent origin. The judgment inVishaka vs State of Rajasthan1 was the first step where the Supreme Court held that sexual harassment at workplace is a violation of human rights. Though Vishaka was a case of gangrape which comes under a specific provision of the I­ndian Penal Code (IPC), the Court had foreseen the need of a legislation for protecting women from sexual harassment at workplace and availed the opportunity to develop law on the subject by way of judicial legislation. It framed the guidelines taking into account the significance of the international conventions and norms for the purpose of interpretation of the guarantee of gender equality and the right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. For framing the guidelines the Supreme Court relied on Articles 11 and 242 of CEDAW. It also referred to the general recommendations adopted by the Committee on the Elimination of D­iscrimination against Women, viz, Articless 22, 23 and 24.3
 
The guidelines defined sexual harassment, imposed mandatory duty on the employer to make a complaint to initiate criminal action against the offender, take certain preventive measures, set up a c­omplaint mechanism, create awareness among the workers about the guidelines, and protect women against the act of third parties, etc. Many establishments have tried to constitute grievance committees to handle cases of sexual harassment following the ruling. The National Commission for Women (NCW) had formulated a code of conduct in workplace to give effect to the guidelines.4
 
In a later judgment in the Apparel Export Promotion Council vs A K Chopra5 case the apex court reiterated the guidelines laid down in Vishaka and held that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours or such other verbal or physical conduct and rejection/submission of which affects her employment or work performance or has the effect of creating an intimidating and hostile environment for working women. Such incident violates their fundamental right to gender equality and right to life and liberty. It is incompatible with the honour and dignity of women and there can be no compromise with such violations.
 
Legislative Process
 
It is a constitutional mandate to draft laws in consonance with the treaties and conventions6and courts have reiterated this obligation of the government to implement treaties and conventions in various cases.7 Further, the government had made an official commitment inter alia, to f­ormulate and operationalise a national policy on women and to set up a commission for women’s rights which will act as a public defender of women’s human rights at the Fourth World Conference on Women in Beijing.
 
The legislative effort to enact a law on sexual harassment started way back in 2000 with the Sexual Harassment of Women at the Workplace (Prevention) Bill, 2000. It imposed a series of obligations on the employer to initiate criminal action where the act of sexual harassment amounted to a specific offence under the IPC or under any other law, initiate disciplinary action where there is misconduct, create complaint mechanism, etc. It provided for punishment which may extend to five years with a fine of Rs 20,000 or both. A year later, the Prevention of Sexual Abuse of Women at Workplace Bill, 2001,8 was introduced. It defined sexual abuse and also provided minimum punishment of not less than six months besides disciplinary action. Later, the Prevention of Sexual Abuse and Harassment of Women and Girls at Workplace Bill, 2002,9 was ­introduced. This one defined sexual harassment at the workplace. The definition of sexual abuse was the same as that in the previous Bill. It prescribed severe punishment for sexual abuse which extended to life imprisonment and a fine of up to Rs 5 lakh and for sexual harassment, punishment up to three years imprisonment and a fine of Rs 2 lakh. The Bill provided for setting up of special courts for trial. In 2003, the Sexual Harassment at the Workplace (Prevention) Bill was introduced. This Bill extended its application to self-employed women and female students in educational institutions. It provided for punishment which may extend to five years with a fine of Rs 20,000 or both.
 
However, none of the above bills were passed. Therefore, the NCW drafted the Protection of Women against Sexual Harassment at Workplace Bill, 2007. Unlike the previous bills, this one defined the term “sexual harassment” comprehensively. But it omitted all penal provisions which could be available to the aggrieved person against the respondent.
 
2010 Bill
 
Subsequently, in 2010, the Ministry of Law and Justice submitted the draft Protection of Women against Sexual Harassment at Workplace Bill, 2010.10 It is currently pending before the Lok Sabha and has been referred to the select committee on Human Resources Development for e­xamination and report.11
 
The Bill is a welcome step for protection of women at the workplace. It contains various beneficial provisions for the protection of women and has provided a wide definition for “workplace” unlike the previous bills. The Bill is applicable to the unorganised sector which ensures the constitutional mandate of social justice to all i­rrespective of their social and economic status. The incorporation of a provision to prohibit the publication or making known the contents of the complaint and inquiry proceedings under the Right to Information Act, 2005, is an important feature that protects the victim from any sort of harassment.
 
(i) Sexual Harassment as a Civil Wrong and Not as an Offence: Even though the Bill contains commendable provisions, it is not comprehensive and suffers from various lacunae. It does not contain effective provisions to achieve the desired results, can be easily misused and will be a failure if implemented in its present form.
 
The major flaw of the Bill is that it contemplates “sexual harassment” as a civil wrong rather than as a criminal offence, as was envisaged in the previous bills (till 2007) and in the Vishaka guidelines. This is evident from the remedy available to the victim which is disciplinary proceeding for misconduct and award of compensation.12 In cases of sexual harassment, the victim can file a complaint b­efore the internal complaint committee. It is for the respondent to prove that he has not committed the offence. If proved guilty, disciplinary action can be initiated for misconduct. Surprisingly, there is no provision in the Bill for taking criminal action by the internal complaint committee suo motu if it finds the respondent guilty or for referring the complaint to the appropriate authority for taking criminal a­ction. The only situation wherein the matter can be referred to the appropriate authority for criminal action is upon the request of the victim.13 This is problematic. The victim may not be aware of the fact that she has the right to refer the matter under the relevant penal laws. The Bill does not cast a duty on the employer to inform the victim about her rights.
 
However, it does make it mandatory for the employer to take criminal action against a person who is not an employee without waiting for the inquiry.14 On the other hand, a respondent who is an employee is liable only to pay compensation to the victim if misconduct is proved, and which would be deducted from his salary. There is no specific reason for excluding the employees from criminal liability.
 
One of the major guidelines issued by the Supreme Court in the Vishaka case was the mandatory duty of the employer to refer the complaint to the appropriate authority if the conduct amounts to an o­ffence under the IPC or under any other law.15 By making sexual harassment a civil wrong the Bill curtails the right of a victim to get criminal remedy.
 
The previous bills especially clause 716 of the Sexual Harassment at their Workplace (Prevention) Bill, 2003, and clause 2117 of the Protection of Women against Sexual Harassment at Workplace Bill, 2007, contained provisions in tune with the Vishaka guidelines.
 
(ii) Inquiry by the Internal Complaint Committee: The inquiry contemplated by the internal complaint committee is purely one under the service rules of the establishment. The departmental inquiry envisaged under various service rules is confined to finding whether the alleged misconduct is proved or not. The procedure followed in such an inquiry is confined only to fact-finding and is not extended to prove criminal liability. The aggrieved party can approach the high court (HC) against the departmental inquiry. The scope of judicial review in such cases is limited and the HC cannot interfere u­nless such findings are based on no evidence or were wholly perverse and/or l­egally untenable. The HC cannot function as an appellate authority and substitute its own conclusion as to the guilt of the delinquent. Judicial review is not concerned with the correctness of the decision but is confined with the examination of the d­ecision-making process like whether the established principles of law and rules of natural justice and fairness have been followed or not.18 The provision for conducting inquiry by the internal complaint committee against misconduct does not suffice to provide justice to the victim and to meet the purpose of the Bill. If the findings of the inquiry committee are against the victim, the appellate authority can decide on the procedure fairness of the committee and cannot enter into the merits of the case and provide a redressal.
 
The inquiry as per the service rules of each establishment to be followed by the complaint committee will take place only in organised sectors. The Bill is silent on the rule to be followed by the local complaint committee in the unorganised sector, as they lack any specific service rules.
 
(iii) The Need for Penal Provision: This is a major flaw of the Bill. The existing provisions like Sections 376, 354 and 509 IPC are not adequate to cover all offences of sexual harassment. In the absence of penal provisions in the Bill the victim has no other ­effective remedy against sexual harassment. It is pertinent to note that penal provisions were present in the previous bills, as discussed above. However, it was excluded from the 2007 Bill onwards. Likewise, the present Bill also omitted penal provision without any specific reason, which is a hard blow to the rights of the victims. There is no scope for misuse of the penal provision, if introduced, since clause 14 of the Bill provides punishment for false or malicious complaint and false evidence as per the service rules of the e­stablishment.
 
(iv) Exclusion of Domestic Workers from the Bill: The exclusion of domestic workers from the definition of employee is another major flaw of the Bill. The NCW recommended inclusion of domestic workers in the proposed Bill. The reason cited for excluding them is that it is difficult to enforce the provisions of the Bill within the privacy of homes and it is more practical for them to take recourse to the provisions under criminal law. This reasoning fails to take into account that it may be difficult for a domestic worker who is subjected to sexual harassment to take recourse to criminal law. When a domestic worker is subjected to the same degree of sexual harassment as defined in the Bill, her exclusion from the purview of the proposed Bill is not justifiable and is violative of Article 14. When the provisions of the Bill are applicable to the unorganised sectors and the definition of aggrieved woman includes every woman whether working or not, the exclusion of domestic workers from the purview of the Bill is unjustifiable. The inclusion of domestic workers as employees in this special legislation is all the more necessary as the Domestic Workers Registration, Social ­Security and Welfare Act, 2008, does not provide punishment for sexual harassment committed against them.
 
(v) Conciliation – Scope for Misuse: The Bill proposes conciliation immediately a­fter filing of a complaint before an internal committee. Thus, before initiating an inquiry, at the request of the aggrieved party the committee can take steps to settle the matter between the victim and the respondent.19 Introducing conciliation at the stage of filing of the complaint itself will give an added advantage to the res­pondent to influence the victim to settle the matter by force, coercion or undue influence. A provision for settlement option in sexual offence cases can lead to undue pressure being exerted on the victim to agree to a settlement. The incorporation of conciliation at the initial stage of the proceedings is contrary to the Vishaka guidelines which do not provide for monetary compensation to settle such serious offence. Conciliation can be resorted to at the later stages of the proceedings so that the victim can take a proper decision on the subject. The Bill is silent about the enforceability of the settlement. The aggrieved person has no remedy in such situations.
 
(vi) Discrepancy in the Constitution of the Complaint Committees: In the appointment of members to the internal complaint committee it is not mandatory that minimum two members of the committee should have legal experience.20 But in the case of a member in the local complaint committee it is mandatory that one of the nominees should preferably have a background in law or legal knowledge.21 There is no difference in the function of both the committees. The function of the committee is the same as that of a judicial inquiry to find out whether the respon­dent has committed sexual harassment at the workplace or not. Hence, it is necessary for the members to have legal knowledge. Moreover the appointment of only women in the committee is also questionable. I­nstead of appointing only women, members with integrity, who will follow a judicious approach and commitment to the cause of women should be appointed. Stipulation regarding the number of women members in the committee is unnecessary and makes a prejudicial assumption that only women are capable of deciding issues relating to sexual harassment.
 
(vii) Trivialising the Offence: The Bill excludes the court from taking cognisance of any offence punishable under the proposed Bill or any rules made thereunder except on a complaint made by the aggrieved woman or any person authorised by the internal committee or local committee in this regard.22 The courts are e­mpowered to take cognisance of offences only if the aggrieved party opts to approach the court. In the absence of a s­pecific provision for referring all cases of sexual harassment at workplace to the a­ppropriate authority, immediately after r­eporting to the complaint committee, this option will be sparingly exercised by the victim due to various reasons prevailing in the Indian society.
 
Clause 26(3) of the Bill treats all offences coming under it as non-cognisable23 and has thereby, diluted the gravity of the o­ffence. In a non-cognisable offence, the police officer has no power to investigate the act without the order of the magistrate. In the case of non-cognisable o­ffences, lodging of the first information report (FIR) without the permission of the court is not possible. Moreover, non-cognisable offences are mostly bailable o­ffences.24Therefore, when an offence under the Bill is committed, an employee cannot lodge a complaint with the police against the offender directly. The victim has to first approach the magistrate’s court by filing a private complaint under Section 200 of the Code of Criminal Procedure (CrPC), following which the magistrate can either take cognisance directly or f­orward the complaint for investigation to the police. The delay in these proceedings may lead to destruction of evidence or influencing the witnesses and, thereby, may adversely affect the interests of the victim. However, if the offence is made cognisable, then the victim can lodge a complaint directly with the police and can set the criminal law in motion.
 
Further, in the absence of a provision for referring the complaint to the appropriate authority for initiating criminal a­ction by the complaint committee, the victim may proceed with the inquiry and later on, if the findings are against the v­ictim, she may wish to proceed under the IPC or under any other law in force. In that event, the delay in registering the FIR, and the limitation period prescribed in CrPC etc, may defeat her case. To address this, a specific provision directing the complaint committee to refer the case to the appropriate authority, immediately after receiving the same, shall be incorporated.
 
Conclusions
 
The Bill fails to provide equal justice to women. Its main drawback is that it n­egates the guidelines issued by the S­upreme Court in the Vishaka case and has treated sexual harassment as a civil wrong rather than a criminal offence. Penal provision should also be in the Bill. In the ­alternative, a provision can be made making it mandatory for the inquiry committee to forward the complaint, at the time of filing it to the appropriate authority for taking criminal action simultaneously with the inquiry. To conduct trial of offenses of sexual harassment at workplace, special courts should be constituted.
 
Another shortcoming is the exclusion of domestic workers from the purview of the Bill. Domestic workers are the most vulnerable section among unorganised workers. Their inclusion in the Bill is the least protection that the government can offer without discriminating them from the unorganised sector. The purpose of the Bill is defeated by incorporating conciliation at the initial stage of the proceedings. Such a provision in cases of sexual offences can lead to undue pressure being exerted on the victim.
 
The offence under the Bill is described as a non-cognisable one thus diluting the gravity of the offence. Hence, it is suggested that the offence under the Bill should be made cognisable, thereby, empowering the police to register an FIR immediately after receiving the complaint.
 
The rules for conducting an inquiry in the unorganised sector should be pres­cribed according to the service rules prevailing in the organised sector.
 
The complaint committee should contain at least two members having knowledge and experience in the field of law. When the members are selected from non-governmental organisations (NGOs), a pro­per selection process should be followed.
 
With the above-mentioned suggestions incorporated, this Bill could become an e­ffective legislation to protect women from sexual harassment at workplace, which is a universally recognised human right.
 
Notes
 
1(1997) 6 SCC 241.
 
2CEDAW, Article 11 reads: “1. States/Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on the basis of equality of men and women, the same rights, particular:
(a) The right to work as an inalienable right of all human beings;
…
(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
Article 24 reads: “States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realisation of the rights recognised in the present Convention.”
 
3Committee on the Elimination of Discrimination against Women, General Recommendations, No 22 reads: “Violence and equality in employment: Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the workplace.
General Recommendations, No 23 reads: Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advance, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. 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 the objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided.
General Recommendations, No 24 reads: States should include in their reports information about sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the workplace.”
 
4Available at Ncw.nic.in/frmLNewLaws.aspx as viewed on 6 February 2011.
 
5(1999) 7 SCC 759.
 
6Constitution of India, Art 253 reads: Legislation for giving effect to international agreements – Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any inter­national conference, association or other body.”
 
7Prem Shanker Shukla vs Delhi Admn AIR 1980 SC 1535; Maccaninon Machenzie & Co vs Audrey D’Coza (1987) 2 SCC 469; Sheela Barse vs Secretary Children’s Aids Society (1987 ) 3 SCC 50; PUCL vs UOIJT (1997) 2 SCC 311; DK Basu vs WB (1997) 1 SCC 416.
 
8Bill No 6 of 2001.
 
9Bill No LXII of 2002.
 
10 The Bill is pending before the Lok Sabha, which is referred to the Select Committee.
 
11 http://164.100.47.132bull2.2010/31.12.2010.pdf as viewed on 6 February 2011.
 
12 Section 13(3) reads: “Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Offi­cer, as the case may be –
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum of compensation to be paid to the aggrieved woman or to legal heirs, as it may determine, in accordance with the provisions of Section 15:
 
13Section 19 reads: Every employer shall –
…
(g) provide assistance to the woman if she so 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.
 
14 Section 19(h) reads: initiate action, under the I­ndian Penal Code or any other law for the time being in force, against the perpetrator after the conclusion of the inquiry, or without waiting for the inquiry, where the perpetrator is not an employee in the workplace at which the incident of sexual harassment took place.
 
15 Guidelines of Supreme Court: 4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or u­nder any other law the employer shall initiate appropriate action in accordance with law by making complaint with the appropriate authority. In particular, it should ensure that victims, or w­itnesses are not victimised or discriminated against while dealing with complaints of sexual harassment.
 
16 Section 7 of the 2003 Bill deals with Criminal Proceedings as follows: “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 the victims or ­witnesses are not victimised or discriminated against while dealing with the complaints of sexual harassment”.
 
17 Clause 21 of the Protection of Women against Sexual Harassment at Workplace Bill 2007 reads as follows:
Where sexual harassment amounts to criminal offence: (1) Where the conduct of sexual harassment amounts to a specific offence under the I­ndian Penal Code (45 of 1860) or under any other law; it shall be the duty of the appropriate authority/member of the committee/local officer who receives such a complaint to immediately inform the complainant of her right to initiate action in accordance with the law with the appropriate authority, and to give advice and guidance regarding the same. Any such action or proceedings initiated shall be in addition to proceedings initiated and/or any action taken under this Act.
(2) Irrespective of whether the complainant opts to initiate criminal proceedings under the Indian Penal Code(45 of 1860), the district Officer/Member of the Committee and the Complaints Committees shall be bound to initiate and conduct proceedings as laid out under this Act.
 
18Apparel Export Promotion Council vs A K Chopra (1999)1 SCC 759.
 
19 Clause 10(1) The Internal Committee or, as the case may be, the Local Committee, may, before initiating inquiry under Section 11 and at the r­equest of the aggrieved woman take steps to s­ettle the matter between her and the respondent through conciliation.
(2) Where a settlement has been arrived at under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.
(3) The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-Section (2) to the aggrieved woman and the respondent.
(4) Where a settlement is arrived at under sub-Section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.
 
20Clause 7(1)c of the Bill provided that at least one of the nominees should, preferably, have a background in law or legal knowledge.
 
21 Clause 4(1)(b) of the Bill reads that not less than two members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
 
22 Clause 26(1) of the Bill.
 
23 Clause 26(3) of the Bill reads: “Every offence under this Act shall be non-cognisable”.
 
24Except section 466, 476, 477 and 493 IPC, all non cognisable offences are bailable. The said sections are not related to harassment to women.

The Economic and Political Weekly, Vol XLVII, No. 3, 21 January, 2012, http://beta.epw.in/newsItem/comment/190914/


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