Sexual harassment in the workplace is considered a violation of women’s right to equality, health and freedom. It creates an unsafe and hostile work environment, undermining women’s participation in the workplace, thereby having a negative impact on their social and economic development and the goal of inclusive growth1. With this in mind the legislature enacted the Sexual Harassment Act in the Workplace (Protection, Prevention and Control Act).
The need for this law was first recognized by the Supreme Court, Vishaka v State of Rajasthan2. If there is no law at the time that provides for measures to address the seriousness of harassment of working women, the High Court, in exercising the powers found under Article 32 of the Constitution, fenced guidelines to be followed in all workplaces or institutions, The Supreme Court enshrined the basic human rights principles enshrined in the Constitution of India under Article 14, 15, 19 (1) (g) and 21, and the provisions of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified by 1993 by the Government of India. The guidelines set by the Supreme Court were to be observed as the law was promulgated under Article 141 of the Constitution.
Brief Review of administrative law and regulations
After 16 years Vishaka, the Prevention, Prohibition and Redressal Act 2013 (“the Act”) was introduced to protect women in the workplace3 and to prevent and redress grievances of sexual harassment and related matters.
The law defines sexual harassment as unacceptable acts or conduct (either direct or indirect), that is, physical and sexual contact, solicitation or solicitation for sexual purposes, sexually explicit material, pornography, or any other physical, verbal or non-verbal act sexual behavior Any unacceptable and sexual activity will be considered sexual harassment. The Delhi High Court in Shanta Kumar vs CSIR held that “without a doubt, physical contact or development may result in sexual harassment as long as such contact is part of sexual intent….
The Act also provides for situations in which an action could be likened to sexual harassment. These are:
(i) a stated or explicit promise of fair treatment in the performance of his or her duties; or
(ii) an explicit or implicit threat of ill-treatment in his or her profession; or
(iii) obvious or apparent threats to his or her current or future employment status; or
(iv) interfering with his or her work or creating a terrifying or abusive or hostile work
nature to him; or
(v) debilitating treatment that may affect his or her health or safety.6
An important aspect of the Act is that it seeks to establish an Internal Complaints Committee at all offices of the organization or institution, consisting of more than ten employees, to hear and resolve complaints relating to sexual harassment7. Where the number of employees is less than 10, the Act provides for the establishment of a Local Committee in each district by the District Officer.8 The committee at the time of the appeal shall have the same powers conferred on the community court. Delhi High Court on its judgment in Ruchika Singh Chhabra vs M / s Air France India and Anr. “… ordered that the ICC be conducted in full compliance with the requirements of the law …”
A traumatized woman may lodge a written complaint with the ICC / LC within three months from the date of the incident and in the event of such an incident within three months from the last such incident. However, any delay in lodging a complaint may be waived by the committee for up to three months. In the event of the physical or mental incapacity of the abused woman, her legal heirs or any other person defined in Act 6 of Sexual Harassment at Work (Prevention, Prevention and Correction Rules), 2013 (“Rules”) complaint.
Upon receipt of the complaint, the committee may, before initiating an investigation, take steps to resolve the matter between him and the respondent by conciliation and once an agreement has been reached there is no further investigation. If the conciliation fails or any settlement time has not been reached by the respondent, the committee will continue with the investigation. 10
In the case of a domestic worker, the Home Affairs Committee, if there is the first case, will lodge a complaint with the police, within seven days of registering the case under Section 509 of the Indian Penal Code or other relevant provisions of the Code where applicable.
Where both parties are workers, the principle of environmental justice is followed and both parties are heard and an opportunity is given to make representations that contradict the findings of the committee. For the purpose of investigating, the committee shall have the same powers vested in the public court. The committee must complete the investigation within 90 days.11 The committee may grant temporary relief to a woman who has been abused during the course of the investigation.12
The committee within 10 days after the completion of the investigation will provide the employer / District Officer and the parties concerned with a report of their findings. Once the allegations against the respondent have been substantiated, the committee will recommend the employer/district official to take sexual harassment such as misconduct in accordance with the provisions of labor laws or where such rules have not been enacted, as set out in Rule 9 of the Act.