Sexual Harassment and Labour Laws in India – The Vishaka Perspective

The Hon’ble Supreme Court of India, in its judgment in Vishaka v. State of Rajasthan, laid down certain guidelines to effectively deal with sexual harassment of female employees at the workplace. The guidelines are 12 in number, and may be considered the law on the subject until statutory provisions are made in that regard. In the past many companies have faced the wrath of government authorities, NGOs, political parties, the media and the courts for issues relating to harassment, particularly harassment of female employees. Therefore, every Company is to now have a sexual harassment policy which must encompass all the 12 guidelines laid down by the Supreme Court.

Guidelines laid down in the Vishaka judgment:

For reference, the following are the 12 guidelines laid down by the Supreme Court:

1. Duty of the Employer or other responsible persons in work places and other institutions:

It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition:

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

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps:

All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings:

Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action:

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.

The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:

Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness:

Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

10. Third Party Harassment:

Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Tips on effectively tackling Sexual Harassment in an organization:

1. The Sexual Harassment Policy of an establishment must be gender neutral protecting both males and females against sexual harassment. The Policy must cover the 12 guidelines laid down by the Vishaka judgement completely.

2. The Policy must mention all the members of the Complaints Committee.

3. The Complaints Committee must make an annual report to the Government Department concerned of the complaints and actions taken by them.

4. Where any conduct that is sexual harassment also amounts to a specific offence under the Indian Penal Code or under any other law, the employer should initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

5. Victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

Keeping the Vishakha guidelines in mind, and also owing to the recent cases of sexual harassment of women at workplace that have come in light, the Indian legislators deemed it necessary to pass a legislation with a view to protect the women from sexual harassment at the workplace.

After the Protection of Women against Sexual Harassment at Workplace Bill, 2010 received the assent of the President on the 22 April, 2013, it was passed by the Lok Sabha without any delay. The Act makes it mandatory for the constitution of Internal Complaints Committees, creation of Local Complaints Committees in every district and twin mechanisms for redressal of complaints. Its ambit is wide and it covers – in keeping with the guidelines laid down in the Vishaka matter – the unorganised sector.

The salient features of the Act are as follows-

• The Act provides various definitions like employee, employer, sexual harassment, workplace, etc.

• It makes provision for the constitution of Internal Complaints Committee to be set up at the workplace and Local Complaints Committee to be set up at the district level. It also gives the procedure of inquiry to be followed when a complaint is registered.

• Creates complaint mechanisms

• Prescribes punishment for sexual harassment

• Punishes false complaints of sexual harassment

Definitions-

• . Employee- means a person employed at a workplace

• Regular, temporary or ad hoc employee

• Employed directly OR through an agent/contractor

• With or without remuneration/voluntary

• With/without express terms of employment

• Includes co-worker/probationer/apprentice/trainee/apprentice/contract worker

2. Employer- means any person who is responsible for the management, supervision and control of the workplace.

3. Workplace- includes

• Government owned establishments

• Private sector organization

• Hospitals or nursing homes

• Sports institute/stadium/complex/training institutions

• Dwelling place in the case of a domestic worker

• Any place visited by the employee arising out of, or during the course of employment, including transportation provided by the employer.

Constitution of the Internal Complaints Committee (ICC)-

• presiding officer- a senior woman employee

• members committed to the cause of women or those who have experience in social work or have legal knowledge.

• member from an NGO/other women’s organization/a person familiar with issues relating to sexual harassment.

The ICC –

• Is mandatory for establishments employing 10 or more employees

• Is to be appointed by an order in writing

• Has the power of a Civil Court for the purposes of summoning witnesses, production of documents.

• At least half members to be women.

• Has to prepare and submit an annual report to the employer and the district officer.

Grievance Redressal Process–

Section 10-

Any aggrieved woman may make a complaint in writing to the ICC within a period of 3 months from the date of incident.

The ICC may extend the period if it is satisfied that the circumstances were such which prevented the woman from making a complaint within the said period.

The ICC may, before initiating enquiry, and at the request of the aggrieved woman take steps to settle the matter through conciliation. (No monetary settlement shall be made.)

The ICC shall provide copies of the settlement to the district officer and the parties.

No further inquiry shall be conducted.

Section 11-

If inquiry is initiated under section 11, the ICC shall forward the complaint to the police within 7 days for registering the case under section 509 of IPC (Word, gesture or act intended to insult the modesty of a woman.) and any other relevant provisions of the IPC.

The inquiry under s. 11 shall be completed within 90 days.

Interim reliefs during the pendency of the inquiry–

• transfer the aggrieved woman or the respondent to any other workplace

• grant leave to the aggrieved woman up to a period of 3 months

The Act lays down the duties of the employer, for example-

• provide for a safe working place

• display the penal consequences of sexual harassment

• organise workshops to sensitise the employees with the provisions of the Act.

• provide assistance to the aggrieved party.

• to provide facilities to ICC/LCC for dealing with complaint or inquiry.

• assist in securing attendance of respondent and witnesses before the ICC.

If the employer fails to conform to the provisions of the Act he shall be punishable with fine which may extend up to Rs. 50,000.