Even since the Independence, we Indians have strived to become developed, but is it possible to develop if half of the population is barricaded to homes itself? So for the development of the country, their homes and themselves, the Indian women are taking the jobs and going to workplaces to cherish their freedom and rights enshrined to them under Art.14(right to equality), 15(right to be treated equally on the basis of sex) and 21(protection of life and personal liberty) of the Constitution. To work and employ for livelihood is also enshrined under Art.19 of the Constitution. Thus lakhs and crores of women are now entering the workplaces today.

Traditionally it was thought that women were only fit for rearing children and household, and thus the destiny of half the populace ended in their own verandas and kitchens, which now has changed to pave way for women to work, and work in a safe environment where she is encouraged and developed, and thus developing the nation as a whole. To break chains is easy but the path after that is more difficult, where people refuse to recognize you as free. Similarly, going out to work came with lot of torments which are still present in the society, morality did not come with modernity, unfortunately, only the clothes, shoes and technology came.

Thus, it is now forced upon people to secure the safety of women at workplace and create safe workplace environment for women by the enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which is along the lines of the Guidelines formed by the Supreme Court in Vishaka and others v. State of Rajasthan and Anr.[1] The Act is also in line with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted in 1979 by the United Nation General Assembly, also called as international bill of rights for women and ratified by India in 1998.

Background

For the first time in 1997, a Public Interest Litigation was filed in the Supreme Court for finding a remedy for women aggrieved at work places. An eye-opener was the brutal gang rape of Bhanwari Devi, a social worker employed for prevention of child marriage. She was raped by the men, whom she prevented from marrying off a girl of one year in age. Not even the police helped much, therefore, Vishaka- a woman activist raised the issue in the Supreme Court, in the case of Vishaka and others v. State of Rajasthan and Anr.,^[2] wherein realizing the need for some regulation the Court made some essential guidelines to be followed at all workplaces, government or private, which was the first step in securing the women outside homes. After a decade and a half i.e. 16 years of the decision did the Legislature came with Law, in the lines of the guidelines. Later the Act followed the provisions of which we shall discuss in detail.

Sexual Harassment

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

1. a) Physical contact and advances;
2. b) A demand or request for sexual favours;
3. c) Sexually coloured remarks;
4. d) Showing pornography;
5. e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Any such an act which constitutes as violating or compromising the dignity of a woman and objection to such acts may affect her physical and mental work progress or drawing of salary or promotion or hostile behavior at the work place is sexual harassment.  Any such conduct that is humiliating to her and may cause physical or mental health issues can also constitute to sexual harassment.

In, Apparel Export Promotion Council Vs. A.K. Chopra[3], the Hon’ble Supreme Court while deciding an issue whether the act of a superior officer (wherein such superior officer tried to molest his junior woman employee) would amount to sexual harassment, the Court relied on the definition of the term ‘sexual harassment’ laid down by the Supreme Court in the Vishaka Judgment (which is similar to the definition of the Sexual Harassment provided in the Act) held that “the act of the respondent was unbecoming of good conduct and behavior expected from a superior officer and undoubtedly amounted to sexual harassment…”.

Idea of aggrieved woman

An aggrieved woman according to the act could be any woman, who has suffered harassment at the hand of the employer, co-employee or any other person during the course of her employment. She could be any woman working in the public sector or private, government or non-government, paid or voluntary, and is applicable to both organized and unorganized sectors.

The Act

The Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act, 2013 is an extension of the Vishka Guidelines issued by the Supreme Court of India to ensure the safety of working women. This Act surpasses the individual responsibility to the institution and the employers regarding the safety of the women employed under them. The act also provides for the complaint to be filed to both persons from the organization or the third party relating to the organization. In addition it also provides for filing of both a civil case for tortus liability and also for criminal case for any crime under the Indian Penal Code.

Useful provisions of the Act

• 3. (I) No woman shall be subjected to sexual harassment at any workplace. Thus inthese words it prohibits sexual harassement.
• 4. (1)Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”. It calls for the formation of the committee in every organization, which may comprised of a woman as its head, and where 1/3^rd of the members may be woman.
• 6. (1)Every District Officer shall constitute in the district concerned, a committee to be known as the “Local Complaints Committee” to receive complaints of sexual harassment: from establishments where the Internal Complaints Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.
• 9. (1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
• 12 this section provides for the provisions to be made for the benefit of the aggrieved woman during the pendency of the inquiry, which could be

(a) transfer the aggrieved woman or the respondent to any other workplace; or

(b) grant leave to the aggrieved woman up to a period of three months: or

(c) grant such other relief to the aggrieved woman as may he prescribed.

• 13 This section talks about the inquiry report to be submitted to the concerned authority i.e. the Internal Committee or the Local Committee, where when allegation confirms to be true, then the District Officer or the employer to-

(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 as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs,

Or if any of these does not happen the respondent can be asked to directly pay such sum.

• 14 provides for the provision for the punishment for false and malicious complaint made, where the complainant can be asked to pay costs for fake complaint. In any case, this does not mean that any compliant which cannot be proved will be liable for damages or will be considered as malicious and false.

Quick checklist: Is your work environment free from sexual harassment?[4]

Most women themselves fail to recognize sexual harassment and treat it as trivial and routine. Take a look at the checklist below and fill a check mark (√) to an appropriate box.

If you have many check marks under “Yes”, your work environment may not be free from sexual harassment. If you are in doubt, discuss with trusted colleagues, and do not stay silent.

In Ms. G v. ISG Novasoft Technologies Ltd. Madras High Court,[5] it was observed that the employee who had a fundamental right to a workplace free of sexual harassment, had complained about sexual harassment. According to the Court, had the organisation complied with the Vishaka Guidelines and set up such a Complaints Committee, the preventative benefit would have been three-fold:

1. Ensured a place where women employees could seek redress;
2. Sent a clear message to the workplace that such complaints would be enquired into by a specially designated committee with external expertise;
3. Prevented a series of litigation that followed.

Hence, the Madras High Court awarded Rs. 1.68 crores in damages to an employee for the non constitution of a Complaints Committee by the employer, as per the Vishaka Guidelines (at the time of the complaint, the Sexual Harassment of Women at Workplace Act 2013 had not been enacted).[6]

What should you do if you experience sexual harassment?

If you experience sexual harassment, take action to stop it.

Speak up at the time: Be sure to say “NO” clearly, firmly and without smiling when you experience sexual harassment as that is the best way to let the harasser know that his or her behaviour is offensive. If you are asked to go places, do things, respond to questions, or engage in situations that make you uncomfortable, say “NO” emphatically and clearly and do not worry about offending the other person or hurting his or her feelings. Objecting to the behaviour when it occurs helps if you decide to file charges later.

Keep records: Keep track of what happens in a journal or diary and keep any letters or notes or other documents you receive. Keep copies of any offensive material at the workplace. Write down the dates, times (including frequency of offensive encounters), places, and an account of what happened. Write down the names of any witnesses.

Every document that you use during trial must be authenticated by a witness. Keep this in mind during your depositions when the defense asks you where you obtained a document. If you are not clear about where you got the document, and who can authenticate it, you will not be able to use it during your trial.

Take all letters of commendation, awards, thanks you’s and anything at all that will corroborate your positive job performance. Pay special attention to documents that your superiors have provided lauding you and your work. If possible, ask your clients, staff, and peers for letters of commendation.

Talk to someone you can trust: Being quiet or stoic about sexual harassment lets it continue. Talk to other co-workers, union members, family members or friends whom you can trust. You may not be the only one harassed by this person.

Create a witness: Inform a trusted colleague and try to insure that s/he is an eye or ear witness to a situation where you are being sexually harassed. This will be useful later if you chose to file a formal complaint.

Report sexual harassment to the appropriate person in the organization: Explore the different avenues available to you and file a formal complaint if necessary. If your organization does not have a policy, ensure that your employer formulates an anti-sexual harassment policy and carries out all the connected tasks.

Get a medical check-up: If you have been raped or physically assaulted, go for a medical check-up. Obtain a medical report. This is important, should you decide to pursue a legal case.[7]

Within 6 months of joining The Statesman newspaper, Rina Mukerhjee lost her job. While

The company alleged that her work was “tardy” and “lacking in quality” it suppressed Rina’s

Complaint of sexual harassment against the news coordinator, Ishan Joshi. Within her first

Month of work, Rina had taken her complaint directly to the Managing Director, Ravinder

Kumar. Time passed, nothing happened and Rina was fired. In a rare display of social context insight and clarity, the Industrial Tribunal (West Bengal) rejected the Statesman’s claim that Rina only referred to “professional” harassment in her complaint to Mr. Kumar. In the Tribunal’s view, Mr. Kumar’s failure to dig deeper was clearly suspect- “… it becomes clear that there was no Committee on Sexual Harassment, as per the Honb’le Supreme Court’s direction in Vishaka vs State of Rajasthan, existing in The Statesman, at that relevant time. …to expect-the lady workman to file a written complaint and not to believe the same, when it has been filed ‘at a later date’ is sheer bias.” The Statesman was ordered to reinstate Rina and grant her full back wages.

M/s The Statesmen Ltd. and Smt. Rina Mukherjee. Order of K.K. Kumai, Judge, dated 06.02.2013, Fourth Industrial Labour Tribunal (West Bengal).[8]

Where can I file a complaint? [9]

o       Internal Complaints Committee – if you are an aggrieved woman who has a relationship of work with that specific organization

o       Local Complaints Committee – if you are an employee from an establishment where the Internal Complaints Committee has not been constituted due to having less than 10 workers. In the case that the complaint is against the employer himself/herself and the individual feels that the case may be compromised, she can also lodge the complaint in the LCC

o       For instances where the LCC may not be immediately accessible, the Act instructs the District officer to designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, who will receive the complaint and forward it to the concerned LCC within 7 days.

o       Local police station, in case provisions under the Indian Penal Code are applicable.

Conclusion

Every woman has a right to be protected under the Act and the Constitution of India, but it also comes with the courage to voice up the problem, for which the remedy will be provided. Where the country is debating over ‘lot of laws for women’, it comes as a paradox that women are still scared to use and benefit from them. One step towards stopping it will go long way, for her and the coming generations, like was done by Vishaka, whom we owe our security at workplaces in great dept.

[1] AIR 1997 SC 3011

[2] AIR 1997 SC 3011

[3] AIR 1999 SC 625

[4] http://www.pib.nic.in/newsite/efeatures.aspx?relid=123114

[5] Crl.R.C.No.370 of 2014 order dated 02.09. 2014. Original Petition No.463 of 2012

[6] HANDBOOK On Sexual Harassment of Women at Workplace for Employers / Institutions / Organisations/

Internal Complaints Committee / Local Complaints Committee (Prevention, Prohibition and Redressal) Act, 2013 by Government of India, Ministry of Women and Child Development, November 2015

[7] http://www.pib.nic.in/newsite/efeatures.aspx?relid=123114

[8] HANDBOOK On Sexual Harassment of Women at Workplace for Employers / Institutions / Organisations/

Internal Complaints Committee / Local Complaints Committee (Prevention, Prohibition and Redressal) Act, 2013 by Government of India, Ministry of Women and Child Development, November 2015

[9] http://www.pib.nic.in/newsite/efeatures.aspx?relid=123114