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Legislative Analysis: Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013

Evolution
Globally, sexual harassment of women began as an historical element in enslavement of black women and seeped into workplaces as women began working in factories or as domestic workers. But their fight against this issue only started in the early 20s when new forms of sexual harassment developed as women shifted to secretarial positions[1]. Addressing such issues, the US Government affirmed Section 703, Title VII of the Civil Rights Act, 1964 after the Meritor vs. Vinison[2] case for protection against Sexual Harassment of women in Workplace (SHW). Even UK and Australia enacted Sex Discrimination Act in 1975 and 1984 respectively.

In this light, the 1974 Towards Equality report made by the Committee on the Status of Women in India along with the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) which was ratified by India in 1993, laid foundations for women's rights in independent India[3]. Especially Article-11 of the CEDAW explicitly recognised the issue of SHW as a violation of right to work with dignity. Yet, in India, there was no legal recourse for the same. The police had the sole adjudication of legitimacy and in courts most of the times the woman came out belittled such as the Mathura[4] case.

Finally, the Supreme Court of India through the 1997 landmark PIL case of Vishakha and Ors. v. State of Rajasthan[5], staged the first legal intervention in this issue. The court while holding the perpetrators of the crime liable took reference of Articles 11(1)(a) & (f) and Article 24 of the CEDAW which said that the State must take measures to protect women from harassment in matters of employment as Sections 354[6] and 354(A)[7] of the Indian Penal Code (IPC), 1860 weren't specific to these needs.

The court subscribed to the Beijing Statement of Principles on the Independence of Judiciary for making laws in the absence of a legislation. On that regard, it propounded the Vishakha Guidelines on sexual harassment in workplace with provisions for prevention and redressal.

But even after this case, the implementation was poor[8]. Later, with the judgement in the Medha Kotwal Lele[9] case which demanded for solidification of the Vishakha Guidelines, the need for a stringent law came to limelight and thus led to the birth of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013 introduced by Minister Krishna Tirath. It received presidential assent on April 23rd 2013 to become an Act (POSH Act)[10] and was published along with the Rules.

Objectives
With an ever increasing number of women joining the labour force (149.8 million women as per the 2011 census[11]), guaranteeing an empowering working climate for women through this enactment was felt to be the primary need by the Government. The law contains provisions to ensure that each woman victimized by any form of sexual harassment- verbal/physical/indicative, is guaranteed a recourse.

The main objective of the POSH Act can be deciphered from the title change that was made to the "Protection of Women against Sexual Harassment at Work Place Bill, 2010" to include "Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013" so as to not just protect, but also prevent SHW and provide redressal to affected women.

The Act implements the Supreme Court's directives in the cases of Vishakha[12] and Medha Kotwal Lele[13] along with creating a municipal law for enforcing its obligatory ratification of the CEDAW. It also provides a legal support for lots of #metoo cases.

In a country like India with deep-rooted patriarchy and women-suppressive practices, it becomes important to perceive harassment from the point of view of the victim. But sometimes, what a male staff might think is a "harmless social interaction" might be a matter of concern for women who are generally disproportionately affected by sexual harassment. Hence, to shield employers from having to accommodate clashing views, this Act aims to lay a standard for ensuring protection against SHW without giving scope for false or overly-sensitive accusations based on what a reasonable woman would consider sufficiently severe or pervasive to alter her working conditions to become abusive or toxic.

Most importantly, with almost 4.4 crore pending litigation cases in India[14], the Act seeks to ensure the constitution of an Internal Committee (IC) and Local Committee (LC) which apart from providing quicker access to justice, also maintains confidentiality of complaints.

Summary
Important definitions:
  1. Sexual harassment Section 2(n)[15]:
    Any physical, verbal or non-verbal harassing conduct done either directly or indicatively, amounts to sexual harassment. Section 3[16] elaborates on this definition to include circumstances such as promising preferential treatment.
     
  2. Workplace- Section 2(o)[17]:
    Workplace includes the office of the employee (including service providers), the places she visits as a part of her duty and the travel she undertakes for fulfilling the same.

Composition of the Committees:
Workplace having more than 10 employees must constitute an IC[18] in all its branches and levels. If less than 10 employees, all complaints are directed to the LC[19] set up in each district.

There must be minimum 4 members in the IC with at least half of them as women and is presided by a woman from a senior position who holds her office for not more than 3 years. There must also be a member of NGO working towards women's rights or related arenas.

For the LC, there must be a woman chairperson from the field of social work, one woman from a block, taluka, tehsil, ward or municipality, and 2 NGO members. At least one woman must belong to SC/ST and one from a legal background.

Members can be removed if found guilty of misconduct or convicted of an offence or abused their position or contravenes the confidentiality of the complaint[20][21].

Method of Complaints and Hearing:
Complainant can file a complaint within 3 months of the incident which is extendable to 3 more months[22]. If she is unable to file[23] because of physical incapacity then her heir, relative, friend, co-worker or a worker of National or State Commission for Women can file a complaint on behalf of her to the IC/LC and if it is because of her mental incapacity, then her psychologist, psychiatrist, guardian or any other authority who is caring for her may do the same.

Before initiating an inquiry, the IC/LC will first try to reconcile the parties[24] if the victim agrees but no monetary compensation can be given in this. If not, then the inquiry[25] shall end in 90 days and neither parties will be allowed to involve a lawyer. After inquiry, the IC/LC has to give recommendations to the employer/district officer within 10 days who later has to implement them within 60 days.

If the complaint is against the employer himself, then even if there is a IC, complaints must go to the LC. But if the evidence produced is false, or the allegation is maliciously false, then there shall be suitable punishment[26].

The IC also has to send a report[27] to the employer and district officer every year.

Relief:
As per Section 12[28], the IC may make recommendations to the employer such as transfer or granting leave. Moreover, Rule 8 of the Rules also states that the respondent shall not report on the victim's work performance. Compensation to the victim depends on mental trauma, medical expenses, etc.[29] The aggrieved woman can also appeal to a higher court if unsatisfied, within 90 days of recommendation[30].

If the employer does not implement the recommendations, then a penalty up to Rs. 50,000 can be charged. Cancellation of licence, withdrawal or non-renewal of registration for carrying on business may also apply[31].

Moreover, Section 19[32] details the duties of an employer such as providing a safe workplace and Section 20[33] & 21(2)[34] detail the duties of a district officer such as creating awareness.

Amendments and Updates
2016:
Terms "Internal Complaints Committee" and "Local Complaints Committee" were changed into "Internal Committee" and "Local Committee" to substantiate them with powers beyond only redressal.

2017:
Government launched a "Sexual Harassment Electronic Box" (SHe-Box) on July 2017 for Central Government women employees to file a complaint that will be directed to the respective IC. On November 2017, it was extended to private companies. This was done to protect women in places where the IC doesn't exist or functions poorly.

2018:
The Companies (Accounts) Rules, 2014 - Rule 8 amended to mandate the inclusion of the IC's SHW report in the Board's annual report providing impetus to Section 22[35] of POSH Act.

Judicial Appraisal
The Indian Judiciary has been hyperactive in dealing with cases regarding SHW. In Shanta Kumar[36], the court stated that not all forms of physical contact are sexual harassment and must be judged using the intent and undertone. In the landmark case of Malabika Bhattacharjee[37], the court said that the parties can be of same-sex (both women) as law must keep up with the society and Sections 2(m)[38], 2(n)[39], 3(2)[40] and 9[41] do not specify which gender the respondent must belong to.

With regard to proceedings, in Sarita Verma[42] the court held that the complainant can initiate parallel proceedings in a different forum while inquiry is going on in IC/LC. And, in the case of Bibha Pandey[43] where the parties were concluded to be in a personal relationship, the court said that "moral policing" is not a job of the IC as it should only determine if SHW was present or not.

In remedies, we come across courts that make the molester tie a rakhi to the victim as an excuse for grant of bail. In that note, the SC in Aparna Bhat & Ors.[44] clearly stated that that is not permissible as it dilutes the offence of sexual harassment.

Regarding work-from-home scenarios, referring to Saurabh Kumar[45] and Sanjeev Mishra[46] the court mentioned that in a growingly digital world, a person cannot be acquitted just because he committed the act from his residence during the course of his employment. Hence, the POSH Act will apply to work-from-home as well.

Critical Appraisal
Not Gender-Neutral:
The Act is solely made only for the protection of women as Section 2(a)[47] describes an "aggrieved woman" only. Other genders do not get protection even under Sections 354[48], 509[49] and 376[50] of the IPC. Moreover, as per the Transgender Persons Act, 2019 companies have to ensure a grievance redressal mechanism for transgenders. Clubbing this within the scope of the IC/LC will reduce the burden of companies.

In the U.S. for example, in the case of Oncale v. Sundowner Offshore Services,[51] the court held that regardless of the sexual desire and gender, any situation which places anyone in an objectively-disadvantageous position in workplace is SHW. A similar amendment must be made to the POSH Act.

IC:
The act while mandating the creation of an IC, does not touch upon the punishment if the IC is not created. It also gives the employer the sole discretion to appoint the members and this might result in appointment of favourable members/a particular class. There can also arise an apprehension of bias[52].

Implementation:
There is no available central resource with data relating to SHW cases in India. In Australia for example, the National SHW Telephone Survey is conducted to collect data. Also, 95% of the women workers are employed in the informal sector[53] where there is poor availability of legal mechanisms including SHe-box because of internet inaccessibility and most do not know what constitutes SHW.

Even the LCs aren't functioning properly as was proved by the RTI filed by the Martha Farrell Foundation in which 56% of the 655 districts didn't respond to the request and 15% said they didn't have a committee[54].

Moreover, the Government is yet to ratify the ILO Convention on Violence and Harassment, 2019 which details out the specific obligations of the government in dealing with SHW and this should be done soon.

Conclusion
A real problem of a country would be when a woman doesn't visit a workplace. Every step forward from here primarily depends on the available data. By collecting the same, the government would also know where to allocate resources. Especially, with the Priya Ramani[55] case, the court has reminded people of the ripple effects of a woman's trauma.

The need of the hour is to provide clarity in handling SHW where the complainant has not given a written statement based on evidence. Further, there must also be involvement of the top management of the company, and awareness made on what constitutes SHW and on all the channels available to the victims.

End-Notes:
  1. Kimberly Hamlin, A primer on the history of sexual harassment and why it deserves a place in diversity training, Fast Company (Aug. 3, 2021), https://www.fastcompany.com/90611160/a-primer-on-the-history-of-sexual-harassment-and-why-it-deserves-a-place-in-diversity-training
  2. Meritor vs. Vinison, 477 U.S. 57 (1986).
  3. Shalmoli Bhattacharya, Evolution of laws and acts on harassment of women at workplace with the occurrence of different cases in different socio economic time frame-a comparative discussion, 20 IOSR JHSS 26, 27 (2015).
  4. Tuka Ram And Anr vs State Of Maharashtra, 1979 AIR 185.
  5. Vishakha and Ors. v. State of Rajasthan, AIR 1997 SC 3011.
  6. The Indian Penal Code, 1860,  354, No. 45, Acts of Parliament, 1860 (India).
  7. The Indian Penal Code, 1860,  354(A), No. 45, Acts of Parliament, 1860 (India).
  8. Nikunj Keyal, Sexual Harassment of Women at Workplace, Legal Service India, http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html
  9. Medha Kotwal Lele v. Union of India, AIR 2013 SC 93.
  10. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013, No. 14, Acts of Parliament, 2013 (India).
  11. Status of Female Employment in India, Swaniti Initiative (2018), http://www.swaniti.com/wp-content/uploads/2018/08/Brief-on-Female-Employment_Swaniti-Initiative-1.pdf.
  12. supra note 4.
  13. supra note 12.
  14. Pradeep Thakur, Pending cases in India cross 4.4 crore, up 19% since last year, Times of India (Apr. 15, 2021, 9:56 PM), https://timesofindia.indiatimes.com/india/pending-cases-in-india-cross-4-4-crore-up-19-since-last-year/articleshow/82088407.cms#:~:text=The%20total%20cases%20pending%20as,migrate%20to%20the%20digital%20format.
  15. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  2(n), No. 14, Acts of Parliament, 2013 (India).
  16. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  3, No. 14, Acts of Parliament, 2013 (India)
  17. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  2(o), No. 14, Acts of Parliament, 2013 (India).
  18. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  4, No. 14, Acts of Parliament, 2013 (India).
  19. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  6, No. 14, Acts of Parliament, 2013 (India).
  20. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  16, No. 14, Acts of Parliament, 2013 (India).
  21. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  7, No. 14, Acts of Parliament, 2013 (India).
  22. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  9, No. 14, Acts of Parliament, 2013 (India).
  23. Id
  24. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  10, No. 14, Acts of Parliament, 2013 (India).
  25. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  13, No. 14, Acts of Parliament, 2013 (India).
  26. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013, 14, No. 14, Acts of Parliament, 2013 (India).
  27. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  21, No. 14, Acts of Parliament, 2013 (India).
  28. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  12, No. 14, Acts of Parliament, 2013 (India).
  29. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  15, No. 14, Acts of Parliament, 2013 (India)
  30. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  18, No. 14, Acts of Parliament, 2013 (India).
  31. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  26(2), No. 14, Acts of Parliament, 2013 (India
  32. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  19, No. 14, Acts of Parliament, 2013 (India).
  33. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  20, No. 14, Acts of Parliament, 2013 (India).
  34. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  21(2), No. 14, Acts of Parliament, 2013 (India).
  35. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  22, No. 14, Acts of Parliament, 2013 (India).
  36. Shanta Kumar v. Council of Scientific and Industrial Research (CDIR) & Ors., MANU/DE/3392/2017.
  37. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College and Ors., W.P.A. 9141 of 2020.
  38. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  2(m), No. 14, Acts of Parliament, 2013 (India).
  39. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  2(n), No. 14, Acts of Parliament, 2013 (India)
  40. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  3(2), No. 14, Acts of Parliament, 2013 (India).
  41. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  9, No. 14, Acts of Parliament, 2013 (India).
  42. Sarita Verma v. New Delhi Municipal Corporation & Ors., 2016 (4) SCT 33 (Delhi).
  43. Bibha Pandey vs Punjab National Bank and Ors., WPC 3249/2017.
  44. Aparna Bhat & Ors. v. State of Madhya Pradesh & Ors., 2021 SCC OnLine SC 230.
  45. Saurabh Kumar Mallick v. Comptroller & Auditor General of India & Another, 151 (2008) DLT 261.
  46. Sanjeev Mishra v. The Disciplinary Authority and General Manager, Zonal Head, Bank of Baroda, S.B. Civil Writ Petition No. 150/2021.
  47. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013,  2(a), No. 14, Acts of Parliament, 2013 (India)
  48. The Indian Penal Code, 1860,  354, No. 45, Acts of Parliament, 1860 (India).
  49. The Indian Penal Code, 1860,  509, No. 45, Acts of Parliament, 1860 (India).
  50. The Indian Penal Code, 1860,  376, No. 45, Acts of Parliament, 1860 (India).
  51. Oncale v. Sundowner Offshore Services, 523 U.S. 75.
  52. Dr.M.Rajendran vs M.Daisyrani, W.M.P.No.36640 of 2017.
  53. Anoo Bhuyan & Shreya Khaitan, Eight years on, India's law to prevent workplace sexual harassment is marred by poor data collection, Scroll (Feb. 23, 2021, 1:30 PM).
  54. Id.
  55. Mobashar Jawed Akbar vs . Priya Ramani, DLCT12-000025-2019 (2019).

Also Read:
Case Analysis: Dr.Malabika Bhattacharjee v/s Internal Complaints Committee The Vivekananda

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