Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community for help and clear up your study doubts
Discover the best universities in your country according to Docsity users
Free resources
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
Critique of historical context and working of the Act
Typology: Essays (university)
1 / 23
This page cannot be seen from the preview
Don't miss anything!
TH
The widespread entry of women into the paid labour force in India represents one of the major social changes of the last few decades. However, at almost all levels of the labour force, from the shop floor to the board room, women face the threat of sexual harassment. This harassment does not always take on obvious and violent forms, and may manifest through derogatory gestures, indecent proposals, display of sexually graphic content, comments about appearance, etc. In the work place, these acts of harassment are compounded by the power dynamic that is often at play between workers at different levels of the hierarchy. Harassment of women at the workplace not only violates their self esteem and dignity but also interferes with their ability to successfully navigate their professional lives. In legal terms, sexual harassment at the work place can be termed as any unwelcome sexual conduct on the job that creates an intimidating, hostile, or offensive working environment that a reasonable woman should not have to endure while at work. Given that ‘sexual harassment’ is a term of wide import, combating it requires a multi pronged approach. Through the landmark Vishaka case in 1997, the Supreme Court took the first step toward establishing a concrete set of guidelines for employers to combat sexual harassment of women at the workplace. However, it took more than a decade for the Legislature to enact a law enshrining the Vishaka guidelines. Finally, in 2013, the Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act was brought into force to protect women from such harassment and provide a redressal mechanism for complaints. Five years on, this research paper seeks to re- examine the complaints and inquiry procedure laid down in the Act and analyse the efficaciousness with which it has been implemented across the country.
The aim of this research paper is to conduct an analysis of the international and national legal background in which the Sexual Harassment of Women at Workplace Act came into force and also examine the issues in implementation of the Act. SCOPE AND LIMITATIONS This scope of this paper is limited to the Indian Act and foreign legislations have not been compared. RESEARCH QUESTIONS
The International Labour Organisation (ILO) has dealt with the issue of sexual harassment at workplace in a range of instruments and in various multi-party discussions. Most recently, combating sexual harassment at the workplace has been promoted as a necessary move to promote decent work for women. The Discrimination (Employment and Occupation) Convetion, 1958 (No. 111) of ILO is an important ILO convention which deals with this issue. The Convention discusses the various forms of discrimination in employment, including sex discrimination, and places an obligation on ILO member states to institute national policies to address this kind of discrimination.^1 The Committee of Experts on the Application of Conventions and Recommendations, in its Survey No. 106 of this Convention, confirmed that sexual harassment at the workplace is a form of sex-based discrimination which impairs productivity and damages working relationships.^2 The ILO Convention on Indigenous and Tribal Peoples, 1989 (No. 169) places a positive obligation on States to prevent all forms of discrimination between the workers covered under the convention.^3 This includes the prevention of sexual harassment. Apart from conventions, the ILO has also produced non-binding instruments such as the 1985 International Labour Conference Resolution on equal opportunity and equal treatment for men and women in employment. The 1991 International Labour Conference Resolution concerning ILO action for women workers also delved into this issue and invited the Governing Body to request that the Office develop guidelines, training, and information materials on certain important issues including sexual harassment in the workplace. The 1989 Meeting of Experts on Special Protective Measures for Women and Equality of Opportunity and Treatment viewed sexual harassment as a safety and health issue particularly affecting women. United Nations 1 Article 1, The Discrimination (Employment and Occupation) Convention, 1958 (No. 111) of ILO. 2 Deirdre McCann, Sexual Harassment at Work: National and International Responses , ILO Conditions of Work and Employment Programme (2005). 3 Article 20, Indigenous and Tribal Peoples Convention, 1989 (No. 169) of ILO.
The UN has dealt with the issue of sexual harassment at the workplace as an issue of violence against women as well as an issue of sex-based discrimination. The Convention on Elimination of all forms of Discrimination against Women of 1979 does not specifically deal with this issue. This is because awareness regarding this issue was at a nascent stage at the time of the drafting and coming into force of the convention. However, in 1989, the Committee formed under the Convention recognised sexual harassment as a form of violence against women.^4 The treaty places obligations on member states to take all kinds of measures for protection of women against gender based violence. The 1993 General Assembly Declaration on the Elimination of Violence against Women also included sexual harassment and intimidation at work within the ambit of ‘violence’.^5 The UN fourth conference on women held in Beijing was another platform at which an action plan was adopted, acknowledging that the experience of sexual harassment is an affront to a worker’s dignity and prevents women from being able to make contributions commensurate to their abilities. It accordingly recommends that states develop workplace policies against gender discrimination, expecially regarding sexual harassment.^6 4 The Committee on the Elimination of Discrimination against Women, General Recommendation No. 12 (eighth session, 1989). 5 Article 2(b), Declaration on the Elimination of Violence against Women, 1993. 6 UN Beijing Declaration and Platform for Action (1995), Chapter 3, Para 161.
at the workplace. A duty was also created for creation of a complaints mechanism within the establishment to deal with such complaints. The recommendations stated that half the members of any such committee should be women. Apparel Export Promotion Council v. A K Chopra^8 In this case, A.K. Chopra, an employee of Apparel Export Promotion Council, was charged with sexually harassing a woman employee working as a clerk. The clerk had complained that the accused had tried to physically molest her in the office. The internal disciplinary committee held him guilty of sexual harassment and removed him from service. On appeal, the High Court arrived at the conclusion that the accused ‘only made an attempt to molest’ the clerk without actually doing so and therefore he could not be removed from service. On second appeal, the Supreme Court made reference to the guidelines laid down in the Vishakha case and held that the behaviour of the accused did not cease to be outrageous for want of actual assault or touch. It opined that ‘in cases of sexual harassment, the courts should examine broader possibilities and must not be influenced by insignificant discrepancies or narrow technicalities.’ Medha Kotwal Lele and ors. v. Union of India and ors.^9 This writ petition was filed by various women’s rights organisations on the grounds that the complaints committees required to be set up as per the Vishakha guidelines had not been set up by various organisations. The Court passed an interim order issuing notice to various prodessional bodies, asking them about the steps they had taken towardthe implementation of the Vishakha guidelines. The Supreme Court has ordered all State Governments to file affidavits regarding all measures taken by them to comply with the Vishaka Guidelines in August 2000. However the affidavits returned by the State were incomplete, showing they had only made cosmetic changes and very few steps had been taken to implement the Guidelines in letter and spirit. The Court held that the States must make the necessary amendments to their CCS Rules and Standing Orders within two months of the judgment. Further, the State Governments were to make sure that there were an adequate number of complaints committees within each state to hear complaints. 8 AIR 1999 Supreme Court 625. 9 Writ Petition (Crl) No. 173-177/1999.
It was only in December 2013 that the Sexual Harassment of Women at Workplace Act came into force with the objective of protecting women at their workplaces and dealing with their complaints in an effective manner.
National Commission for Women can file the complaint if the consent of the aggrieved woman has been taken. The Act also provides that a conciliation process can be intiated by the committees in lieu of an inquiry in case the aggrieved woman requests the same. This is similar to the recommendation of a mediation proceeding under the Vishakha guidelines. Section 11 provides for the inquiry proceedings, which take place in case conciliation is not opted for or does not result in a favourable settlement. The inquiry is to be intiated by the committee as per the applicable service rules. The ICC has the same powers as a civil court under the CPC for the purpose of inquiry. During the inquiry, the ICC has the authority to order transfer of the woman or the respondent. A leave of three months can also be granted to the woman if it is necessary for her well-being during the conduct of the inquiry. On completion of the inquiry, a report has to be provided to the employer. In case the allegation is proved, the committee can recommend action be taken against the respondent. In case it is not proved, the committee will recommend that no action be taken against the respondent. In case the allegation is proved to be malicious, a recommendation can be made to take action against the complainant. In the case of domestic workers, if the LCC finds a prima facie case of sexual harassment, it should forward the same to the police for investigation under Section 509 of the Indian Penal Code (offence of insulting the modesty of a woman) or any other provision that may be applicable.
Section 9(1) provides that the complaint by the aggrieved woman should be submitted to the Complaints Committee within a period of three months from the date of the incident. In case there are a series of incidents of sexual harassment, the complaint should be made within a period of three months from the date of the last incident. If the aggrieved woman does file a complaint within this statutorily prescribed limitation of three months, an adverse inference should not automatically be drawn just because it was not filed immediately. The Delhi HC has observed that on account of the vulnerability of an aggrieved woman, she might not make the complaint immediately after the incident. As such, mere delay of about two months in makin the complaint did not mean that he complaint lacked merit.^12 The proviso to Section 9(1) requires the ICC or LCC to make all reasonable assistance to the aggrieved woman for making the complaint in writing. As observe by the Committee on the Amendments to Criminal Law, often, the more underprivileged members of the female workforce are not in a position to make a complaint in writing for various reasons such as illiteracy or lack of education, which prevents them from putting down on paper what they have experienced and which may otherwise be clear in their minds.^13 The Committee also recommended that complainants should be free to approach the proposed ICC or LCC directly to state a complaint orally, which may then be transcribed into written form in the manner prescribed by the ICC or LCC.
The provision for a conciliation mechanism has been subject to much criticism. It has been observed that in matters of sexual harassment and humiliation of women, an attempt to compromise the same is yet another way in which the dignity of the woman is undemined. Permitting mandatory conciliation, even if at the instance of the complainant, will negatively affect the ability of women to bring valid complaints before the committee. The availability of this milder redressal mechanism, in 12 Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust, 2015 SCC OnLine Del
13 Report of the Committee on the Amendments to Criminal Law (23.01.2013), Chap. 4, p. 134, para (f).
Section 13(3)(i) provides that the enquiry into the complaint should be in accordance with the provisions of the service rules applicable to the respondent. Thus, where the Central Civil Services (Conduct) Rules are applicable to the repondent, the ICC constituted under the Act would be required to conduct the inquiry in accordance with such Rules.^18 However, when no such service rules exist, the Committee should conduct the inquiry in the manner prescribed by the rules made under the Act.^19 Another important issue that has been raised before the courts in respect of the inquiry procedure is the balance between following principles of natural justice while at the same time respecting special needs of the complainant in a sexual harassment case such as privacy. The Act specifically provides that “where both the parties arc employees, the parties shall, during the course of inquiry, be given an oppcrtunity of being heard.”^20 This arbitrary distinction between respondents who are employees and those who are not does not have any clear rationale. There does not appear to be any reason why a person who is not an employee but is accused of sexual harassment should not also be guaranteed the right to make a representation before the inquiry committee.^21 In L.S. Sibu v. Air India ,^22 the Kerala High Court has directly answered the question of what manner the principles of natural justice ought to be secured in the inquiry conducted in a complaint relating to the sexual harassment. The court acknowledged that in sexual harassment complaints, the complainant may not have the courage to depose all that may have happened to her at the work place. There may be an atmosphere restrricting the freedom of expression of her grievance before the inquiry committee. This observation is particularly pertinent for the ICCs set up under the Act, which will be constituted by the colleagues of the complainant. Thus, if the inquiry committee is of the view of that the aggrieved is in a feeble mental state and unable to withstand cross examination, it can adopt other measures to ensure that the witness statement is contradicted or corrected by the respondent in some other manner. The concept of ‘fair opportunity to be heard’ must be balanced against the 18 Ramesh Pal v. Union of India, 2014 SCC OnLine MP 2039. 19 Section 13(3)(i), Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013. 20 Second Proviso to Section 11(1), Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013. 21 Alok Bhasin, LAW RELATING TO SEXUAL HARASSMENT AT WORK, 371 (2nd^ edn., 2015). 22 WP(C).No. 4001 of 2016 (A).
ability of the complainant to freely express her grievance. However, in this case, the respondent had not been fully informed of the details of the complaint against him and had not been given any fair opportunity to be heard, accordingly the report of the ICC was set aside by the court. Where the inquiry committee has proceeded ex parte against the respondent after having made reasonable attempts to sexure his presence, the courts have upheld the validity of the subsequent report. In Bhagwan Chand Saxena v. Export Inspection Council of India ,^23 the alleged harasser filed a writ petitition challenging the ex parte proceeding conducted against him. The court found that the inquiry officer was justified in proceeding ex parte against the petitioner because the petitioner repeatedly kept on applying for adjournments on medical grounds, and the medical certificates produced by him lacked credibility.
Section 13 of the Act requires the inquiry committee to ‘provide a report of its findings’ to the employer within a period of ten days from the date of completion of the inquiry. In Jaya Kodate ,^24 two separate inquiry reports by four members of the ICC were submitted. One report was submitted by the presiding officer, while the other report was prepared by the NGO representative and was also signed by the two other members. The report prepared by the NGO member showed ‘her singular effort’ and did not mention any deliberations with the other two members who also signed the report. There was nothing to show that the other two members had even given thought to the controversy. The Division Bench of the Bombay HC observed that Section 13 of the Act referred to a report of the committee’s findings, implying that there must be a combined single report reflecting collective application of mind. In this case, the material on record showed an absence of spirit of cooperation between the ICC members, as the deliberation was never even attempted and there was no effort made to collectively agree or disagree. Accordingly, the report was set aside. 23 2013 SCC OnLine Del 3755. 24 2014 SCC OnLine Bom 814.
regularly been filing annual reports as required by the Act,^27 disclosing the number of sexual harassment inquiries. Among the Nifty 50 companies, sexual harassment cases have risen, with two-thirds of them disclosing a total 525 complaints in this year, an increase of 26% over the previous year. WiproBSE topped the list with 111 cases, followed by ICICI Bank with 87 cases and InfosysBSE with 62. Information technology and banking companies, which typically employ more women than others, constitute over 80% of the total.^28 The higher numbers reflect a robust reporting system put in place by these companies.^29 On the other hand, a comparison may be drawn with the treatment of women who work on the shop floors of the garment manufacturing companies located in Bangalore and Gurgaon. A study of Bangalore’s garment industry by a UK-based NGO exposed that one in seven women garment workers have been forced to have sexual intercourse or been raped in the workplace, with almost 60-65% of women reporting to have suffered humiliation through acts or intimidation at the workplace.^30 The threat of violence against women in the workplace is compounded by the fact that almost all supervisors are men and are thus unsympathetic to the concerns of the women labourers.^31 The situation has not been improved by the coming into force of the 2013 Act, because of the poor implementation of the same. While data with the Haryana Labour Department shows that almost all of the 186 garment manufacturing companies have ICCs on paper, the women working in these establishments claim that the committees do not inspire confidence. The women on the committee as well as the women employees are threatened with further harassment or with termination of their contract and thus the environment is not one 27 Section 21(1), Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013 28 Kiran Somvanshi, Sexual harassment cases rise by 26% in nifty 50 companies , THE ECONOMIC TIMES (September 29, 2016) available at http://economictimes.indiatimes.com/news/company/corporate-trends/sexual-harassment- cases-rise-by-26-in-nifty-50-companies-wipro-icici-infosys-top- list/articleshow/54573926.cms 29 IANS, More women reporting cases of sexual harassment: Maneka Gandhi , BUSINESS STANDARD (December 2, 2016) available at http://www.business-standard.com/article/news- ians/more-women-reporting-cases-of-sexual-harassment-maneka-gandhi- 116120200798_1.html 30 Sisters for Change , Report on Breaking Down Barriers to Justice , 21 (2016). 31 Aarthi Gunnupuri, India’s garment workers continue to fight against exploitation , EQUAL TIMES (November 22, 2016) available at https://www.equaltimes.org/india-s-garment- workers-continue?lang=en#.WEe70KJ94dU
conducive to reporting of sexual harassment. Even though certain garment manufacturing companies are subject to compliance audits by international brands, women are tutored to give a false picture of the working conditions at the factories to the auditors. There is almost no government oversight of compliance with the provisions of the 2013 Act. Inspection of factories in Karnataka over the last 7 to 8 months has been virtually nil. In Haryana too, the government departments depend on self-compliance reports by the companies.^32 This defeats the very purpose of laws which are meant to protect employees from harassment by employers. 32 Sreenivasan Jain, How sexual harassment has scarred women in India’s garment industry , NDTV (July 10, 2016), available at http://www.ndtv.com/india-news/how-sexual-harassment- has-scarred-women-in-indias-garment-industry-
