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132 views

Posh Notes

Uploaded by

Ayush Gupta
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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The Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013

Sexual harassment is one of the social evils faced by fragile portion of


society. It is also termed as ‘Eve Teasing’ and it includes passing of indicative
comments or jokes, uninvited touching, uninvited/unwelcome sexual favour or
sexual gestures, making appeals for sex etc. Vishakha & Ors V State of
Rajasthan (AIR 1997 SC 3011) is a landmark case in the history of sexual
harassment which was decided by the Apex Court. The Bill was first introduced by
women and child development minister Ms. Krishna Tirath in 2007. Sexual
harassment makes the victim feel humiliated, offended and insulted. It violates the
fundamental right of women of gender equality enshrined under Article 14 and
also right to live a dignified life as contemplated under Article 21 of Indian
Constitution. It creates an insecure and hostile work environment, which adversely
affects the women’s participation as effective workforce and thereby substantially
reduce the contribution in national development. Hon’ble Justice Arijit Pasayat
had aptly held that “while a murderer destroy the physical frame of the victim, on
the other hand the rapist defiles the soul of the helpless female”.

At international level India is party to Convention on Elimination of All


Forms of Discrimination (CEDAW) which requires State parties to take all
appropriate measures to eliminate discrimination against women in the field of
employment.

The Sexual Harassment of Women at workplace (Prevention, Prohibition


and Redressal) Act was essentially derived from the Vishaka Guidelines. The
Vishaka Guidelines were certain procedures to be followed in cases of workplace
sexual abuse. These guidelines were formulated after the landmark case Vishaka
and others v. State of Rajasthan. This case was brought to the Supreme Court
because of the sheer inability of the High Court of Rajasthan to provide justice
to Bhanwari Devi who was part of Women's Development Program of the
Rajasthan Government. She was brutally gang raped for stopping a child marriage
being conducted in a town. This was a part of her duties as a member of the
Development Program to stop any illegal activity conducted against children and
women. Moreover, this Act uses the definition of sexual harassment laid down by
the Supreme Court in Vishakha and others v State of Rajasthan.

In Medha Kotwal Lele & Ors. V. Union of India & Ors. (2012 SC), the
Supreme Court observed through Hon’ble Justice R Lodha that “the
implementation of the Vishaka Guidelines has to be not only in form but also in
substance and spirit so as to make available safe and secure environment for
women at workplace in every aspect and thereby enabling working women to work
with dignity, decency and due respect.”

The legislature brought into force the Sexual Harassment of Women at


Workplace (Prevention, Prohibition and Redressal) Act, 2013, to provide
protection against sexual harassment at workplace and for prevention and redressal
of complaints of sexual harassment. The Act contains 30 sections and divided into
8 chapters.

Section 2(a) of the Act defines "aggrieved woman", who will get protection
under the Act is extremely wide to cover all women, irrespective of her age or
employment status, whether in the organised or unorganised sectors, public or
private and covers clients, customers and domestic workers as well. Section 2(n)
of the Act provides inclusive definition of sexual harassment as unwelcome acts or
behaviour including ;

(a) physical contact and advances; or


(b) a demand or request for sexual favours; or
(c) making sexually coloured remarks; or
(d) showing pornography; or
(e) any other unwelcome physical, verbal or no-verbal conduct of sexual
nature.

The Act provides for the constitution of Internal Complaint Committee and
Local Complaint Committee under section 4 and section 7 respectively. The
Internal Committee shall consists of a Presiding Officer who shall be a woman
employed at senior level and three members. Out of three not less than two
members are from employees committed to the cause of women and one member
from amongst non-governmental organization. However, at least one half of the
total members shall be women. The Presiding officer and members shall hold for a
period not exceeding three years.

The Local Committee consists of one Chairperson and four members. At


least one shall be a woman to be nominated from non-governmental organization
and at least one should have background in law or legal knowledge.

Section 9 of the Act provides that the aggrieved woman may make in writing
a complaint of sexual harassment at workplace before Internal Committee or Local
Committee within three months from the date of incident. However, such time
period may be extended not exceeding three months under certain circumstances
which prevented the women from filing the complaint. Before initiating inquiry,
Internal Committee or Local Committee shall take steps to settle the matter
between aggrieved woman and respondent through conciliation. Where the
respondent is an employee, the Local Committee shall, if prima facie case exists,
forward the complaint to the police within seven days for registering the case under
section 509 of Indian Penal Code, 1860. The inquiry under section 11 shall be
completed within a period of 90 days.

As a preventive and curative measure, during pendency of inquiry the


Internal Committee or the Local Committee may recommend to transfer the
aggrieved woman or the respondent to any other workplace or grant leave to the
aggrieved woman up to a period of three months. Such leave shall be in addition
to the leave she would be otherwise entitled.

On completion of inquiry the Internal Committee or Local Committee shall


provide report of its finding to the employer or the District Officer within a period
of ten days from the date of completion of inquiry. When allegations against the
respondent has not been proved, it shall recommend the no action is required and if
proved, it shall recommend to take action for sexual harassment as a misconduct as
per service rules applicable to the respondent and also to deduct appropriate sum
from the salary/wages of the respondent so that it is to be paid to the aggrieved
woman. The employer or the District Officer shall act upon the recommendation
within 60 days from its receipt.
Section 15 of the Act embraces the provisions in respect of factors to be
considered while determination of compensation to be paid to the aggrieved
woman. It provides that the Internal Committee or Local Committee shall have
regard to;
1. Psychological factors viz. mental trauma, pain, sufferings and
emotional distress caused.
2. Loss in career opportunity
3. Medical expenses incurred by the victim
4. Economic loss to the victim
5. Feasibility of payment of compensation in lump sum or in
instalments.
6. Any other facts demanding attention

In order to protect the identity of the victim, the statute imposes obligation upon all
concerned person not to publish, communicate or made known to the public, press
or media, the contents of the complaint, identity and address of the aggrieved
woman, respondent and witnesses. Contravention of this provision attracts penalty
under section 17 of the Act. As a remedial measure any person aggrieved by the
recommendation made under section 13, 14 or 17 may prefer an appeal to the
Court or Tribunal within 90 days of the recommendations.

Section 26 of the Act provides penalty for non-compliance with provisions


of Act. It imposes fine which may extend to Rs. 50,000/- upon the employer who
fails to constitute the Internal Committee or take action under section 13, 14 and
22. It further provides that any employer on subsequent conviction shall be liable
to twice the punishment and his licence may be cancelled.

Every offence under this Act shall be non-cognizable which shall be tried by
the Court of Metropolitan Magistrate or Judicial Magistrate of first Class.

In Shanta Kumar V CSIR & Ors (2018, Del), it was held by the High
Court of Delhi that as long as a physical tough or approach is made in the course of
sexually suggestive behaviour, it constitutes sexual harassment. Even if unwanted,
a simple incidental touch would not constitute sexual harassment. Even if the
occurrence in question was derogatory in nature, it would not meet the criteria for
sexual harassment in this case.

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