Synopsis
The Law for prevention of sexual harassment of women at workplace has now become an Act. Up until now it was in the form of Guidelines laid down by the Apex Court. The Act is very important since it applies to all organisations, public or private, small or big and even applies to houses in certain cases. What constitutes sexual harassment is also very widely worded. Business entities should choose to ignore this Law at their own peril! We will examine this Act through a two-part Feature.
Introduction
A major landmark was achieved when the Indian Government notified, on 9th December, 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”). The Act’s preamble states that it is to provide protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints relating to sexual harassment. The Constitution of India guarantees every citizen a right to life and dignity and freedom to practice any profession/business. These are fundamental rights which are available equally to men and women. A safe working environment for women is one such fundamental right. Gender equality includes protection from sexual harassment and right to work with dignity. This Act seeks to achieve the same. Recent infamous events in corporate India have highlighted the urgent need for a Legislation such as this.
The roots of this Act may be traced to the pathbreaking judgment of the Supreme Court in Vishaka vs. State of Rajasthan (1997) 6 SCC 241 which was followed up by an equally important decision in Medha Kotwal Lele vs. Union of India, (2013) 1 SCC 297. Inspite of clear directions to the Government by the Apex Court to pass a Law on this subject, the Act saw the light of the day 16 years after Vishaka’s case. Let us examine this important piece of Law which, as we will see, impacts not only workplaces but also some households.
Vishaka’s Case
Vishaka’s judgment, for the first time, dealt with the hitherto untouched subject to women’s safety at work. In an unusual judgment, in the absence of any enacted law, the 3 Member Bench took it upon themselves to frame Guidelines to prevent sexual harassment of women at workplaces. The Court held that these Guidelines should be strictly observed in all working places by treating them as the Law of the land under Article 141 of the Constitution. It further held that the Court’s Guidelines and norms would be binding and enforceable in law until suitable legislation is enacted to occupy the field.
Inspite of the Court’s clear directions, some States were not complying with Vishaka’s Directions. Hence, the Supreme Court in Medha Kotwal Lele’s case, again issued further directions. It held that the Guidelines should be implemented in its true spirit. The Court passed a speaking Order wherein it directed all Government Organisations, Bar Associations, Medical Clinics/Hospitals, Offices of Engineers/Architects, etc., which employed women, to implement the Guidelines. It also instructed the Medical Council, Council of Architecture, our ICAI, ICSI, and other statutory institutes to ensure that organisations, bodies, persons, affiliated with them follow the Vishaka Directions. Further, for any noncompliance with Vishaka’s Guidelines, the aggrieved persons should approach respective High Courts.
It is in the light of this judicial activism that the Act has been passed. Now that this Act has been passed, Vishaka’s Directions would no longer apply. Let us now examine the Act’s salient features.
Application
The Act applies to the whole of India. It applies to every workplace owned by an employer where an employee, who is a lady, is employed and who is sexually harassed. The meaning of each of these four terms is very crucial since it forms the heart of the Act. This Act provides for civil remedy for sexual harassment of a lady.
Section 354 of the Indian Penal Code, 1860 (IPC) provides punishment for a harassment which is criminal in nature, i.e., if it is an assault or criminal force on the woman with intent to outrage her modesty.
Workplace
The Act applies to harassment at the Workplace and hence, it is very important to understand what constitutes a workplace? The term is defined in an inclusive manner and Table-1, given below, enlists the inclusions referred to in the definition:
Employee
Next let us understand who is an employee under the Act. The persons covered under the definition of the term employee are given below in Table-2:
It may be noted that although there is a definition of the term employee, it is not necessary that the complainant lady should be an employee of the workplace where the incident occurred. She could be any lady who was harassed at that workplace as would be evident when we see the definition of the term “aggrieved woman” given below.
Aggrieved Woman
It is important to understand who is an aggrieved woman under the Act. In relation to a workplace, it means any woman of any age, whether employed or not, who alleges to have been sexually harassed by a respondent. A respondent is a person against whom a complaint is lodged. Thus, any lady who comes to a workplace (e.g., a client, a consultant, an auditor, a patient, a student, etc.,) could allege harassment at that workplace by a respondent working there. She need not be an employee of that workplace.
However, there is some disconnect when viewed along with the definition of the term workplace. Considering again the example of the auditor-auditee, in relation to an articled clerk who alleges harassment at the auditee’s workplace by the auditee’s employee, the aggrieved woman definition is wide enough to cover an auditor who has come into an organisation. However, the definition of the auditor’s workplace includes any workplace visited by his employee. The correct forum to complain should be the ICC of the auditee since that is the workplace where the alleged incident occurred. How can the auditor’s ICC have any control over an employee of the auditee? A better clarity on this very important issue is desirable.
Employer
The obligations under the Act are cast upon the Employer. In case of a private/NGO sector, it is defined to mean one responsible for the management, supervision and control of the workplace. The term management includes the person or the Board or the Committee responsible for the formation and administration of policies for such organisation. Thus, the Board of Directors in the case of a Company, Designated Partners in case of an LLP, Partners in case of a Firm, etc., would be treated as Employers.
Sexual Harassment This brings us to the all important question, what constitutes a sexual harassment under the Act? The term “sexual harassment” is defined in a very wide and all-encompassing manner. Several people who may be under an impression that a particular act of theirs cannot constitute harassment would be in for a rude shock. It is defined to include any one or more of the following unwelcome acts or behaviour, whether directly or by implication:
a) Physical contact and advances;
b) Demand or request for sexual favours;
c) Making sexually coloured remarks;
d) Showing pornography;
e) Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.
While, for some of the above acts, it is quite apparent
that they constitute sexual harassment, it
is important to fully understand the meaning of
“making sexually
coloured remarks” and “any
other
unwelcome verbal or non-verbal conduct of sexual
nature”. Circulating
lewd text/WhatsApp messages
to female colleagues,, reading aloud vulgar jokes
to female colleagues, passing abusive remarks in
the presence of women, offensive screensavers on
laptops, commenting on women, staring, stalking,
etc., may all be
covered. Even something like asking
a lady colleague out for a drink may be covered
within this definition. The list cannot be exhaustive
and needs to be considered based on the facts and
circumstances, but one important parameter for an
act/behaviour to constitute harassment is that it
must be unwelcome.
