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The doors for empowering women which remained closed for many decades have started budding up to take the full shape of maturity with the passage of the newly passed “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”(“SHW Act”),PRECURSOR& BACKGROUND TO THE LAW
The era of 90’a has shown us the path for opening of the Indian economy to the world economy which has positively witnessed an overwhelming increase in the women workforce and also paved the routes for increasing injustice towards women at their work place. In 1997, the Apex Court pronounced a landmark judgment in Vishaka and others v. State of Rajasthan ("VishakaJudgement"). The Hon'ble Supreme Court in Vishaka Judgment laid down the guidelines that were mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and enforce the right to gender equality of working women.
In the year 1993, India had also ratified the United Nation Convention on Elimination of all Forms of Discrimination against Women. One of the requirements of the said UN Convention was that “State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment so as to ensure, equality of men and women, the same rights......” A Law for prevention of sexual harassment at workplaces was a long pending one and was enacted by the parliament in 2013.
Taking these two as milestone developments, the Indian legislature has taken a wonderful step towards passing of this SHW Act.THE OBJECTIVE OF THE NEW LAW
The New Law has been enacted with the objective of providing protection to women against sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment. Sexual harassment is considered as a violation of the fundamental right of woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India ("Constitution") and her right to life and to live with dignity as per Article 21 of the Constitution. It is also considered as violation of the right to practice or to carry out any occupation, trade or business under Article 19(1) (g) of the Constitution, which includes a right to a safe environment free from harassment.WHAT CONSTITUTES SEXUAL HARASSMENT AT WORKPLACE?
Circumstances of promise (implied or explicit) of preferential treatment in employment;
Threat of detrimental treatment in employment;
Threat about employment (present or future);
Creating an intimidating or offensive or hostile work environment, or interference with work for the above;
Humiliating treatment that may affect the lady employee's health or safety
Unwelcome sexually determined behavior (whether directly or by implication) such as physical contact and advances,
Demand or request for sexual favors, sexually colored remarks, showing pornography,
Any other unwelcome physical verbal or non-verbal conduct of sexual nature.
As per the New Law, a workplace also covers within its scope places visited by employees during the course of employment or for reasons arising out of employment - including transportation provided by the employer for the purpose of commuting to and from the place of employment.
The New Law applies to any woman falling under the definition of 'employee' under the Sexual Harassment Act and encompasses regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, domestic help, contract labor, coworkers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer,whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.SALIENT FEATURES OF THE ACT
The New Law casts certain obligations upon the employer.
To provide safe working environment at the workplace which includes safety from persons coming in contact at workplace.
To treat sexual harassment as misconduct under the service rules and initiate action for misconduct. “Redraft your service rules to include this”.
To inform all employees of the penal consequences of indulging in acts that may constitute sexual harassment
Penal action shall include termination and reporting the harassment incident to relevant government authorities, and
To Constitute an Internal Complaints Committee ("ICC").
The ICC should be headed by a woman, and half its members shall be women & include a third-party representative from an NGO or any other agency conversant in dealing with sexual harassment.
Organize workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the Internal Complaints Committee
Monitor the timely submission of reports by the ICC.
If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000. A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses.WHAT IS THE REMEDY FOR THE AGGRIEVED?
The employer shall act on the recommendations of the report within 60 days of publication of the report. There are three possible outcomes:
The allegation levelled is proved, and action for misconduct is taken as provided under the service rules of the organization or if the harassment is grave, the organization is bound to inform the relevant authorities to institute penal action under the Indian Penal Code, 1860, which has provided special provisions for crimes relating to sexual harassment.
The allegation levelled is not proved due to the inability of the complainant to prove the facts and in the absence of malicious intent; the organization shall decide not to take any action.
The allegation levelled is not proved and the allegation was made with a “false and malicious” intent, action can be against the complainant for misconduct under the service rules.
An appeal to a court or tribunal can be made by the complainant and alleged against the recommendations of the ICC or LCC. The appeal has to be made within 90 days from the date of the recommendation.
Although the New Law is gender biased towards women, organizational policy on sexual harassment should reflect the equality in treatment. Hence sexual harassment policy should be framed towards discrimination against both genders. The New Law provides the much needed grievance redressal process which working women require at their workplaces. The Act has given a wide scope, so as to include all women, including domestic help, as the household is her workplace. Hence, the New Law not only provides a redressal system for women at work as in the traditional sense, but to all women who work at some place.