The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Atrocities against women are common everywhere. Nowadays many women are working in different places of work. There are chances of sexual harassment at the workplace. Sexual harassment of women at a workplace is considered a violation of women’s right to equality, life, and liberty. It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth. Sexual harassment at the workplace is a widespread problem in the world whether it be a developed nation or a developing nation or an underdeveloped nation.

Historical Background:

Before the Vishakha guidelines came into the picture, the women had to take the matter of Sexual Harassment at Workplace by lodging a complaint under Sec 354 and 509 of IPC.

Bhanwari Devi, a social worker in a programme to stop child marriages, stopped a child marriage that was taking place in an influential Gujjar family. To take revenge one Ramakant Gujjar along with five of his men gang-raped Bhanwari Devi in a brutal manner in front of her husband. Her attempt to file a police case was met with apathy and she faced further stigma and cruelty. The trial court acquitted the accused citing lack of evidence but Bhanwari Devi, along with a sympathizer (Association known as Vishaka), approached the Supreme Court by way of a writ petition which eventually led to a very important and landmark judgment.

In the Vishaka v. State of Rajasthan, (1997) 6 SCC 241 case, the guidelines issued by a three-judge bench comprising of Chief Justice Verma, Justice Sujata V. Manohar and Justice B.N. Kripal widened the meaning and scope of sexual harassment. It defined sexual harassment as an unwanted sexual determination which is directly or impliedly intended to cause the following: 

1. Physical contact or advances.
2. A demand or request for sexual favours.
3. Sexually coloured remarks.
4. Showing pornography.
5. Any other unwelcome conduct whether it is physical, verbal or non-verbal. 

After 16 years of Vishakha case, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 was enacted with the objective to provide protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints of sexual harassment and for matter connected therewith or incidental thereto. The provisions of the Act came into force from 9th Dec 2013. It extends to the whole of India.

In Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625 case, the respondent was working as a Private Secretary to the Chairman of the Apparel Export Promotion Council. It was alleged that he tried to molest a woman employee of the Council Miss X who was at the relevant, time working as a Clerk-cum-Typist in the office. The respondent had tried to molest her physically in the lift also while coming to the basement. The Court held that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her.

Object of the Act:

• to provide protection against sexual harassment of women at the workplace and for the prevention
• to redress complaints of sexual harassment and for matter connected therewith or incidental thereto.

Important Definitions:

Aggrieved Woman:

According to Section 2(a) of the Act, “aggrieved woman” means—

1. in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
2. in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.

Domestic Worker:

According to Section 2(e) of the Act, “domestic worker” means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part-time or full-time basis, but does not include any member of the family of the employer.

Employee:

According to Section 2(f) of the Act, “employee” means a person employed at a workplace for any work on a regular, temporary, ad hoc, or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.

Employer:

According to Section 2(f) of the Act, “employer” means—

1. in relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organization, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;
2. in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace. Explanation. —For the purposes of this sub-clause “management” includes the person or board or committee responsible for formulation and administration of policies for such organization;
3. in relation to workplace covered under sub-clause (i) and (ii), the person discharging contractual obligations with respect to his or her employees;
4. in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of a domestic worker, irrespective of the number, time period, or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;

Internal Committee:

According to Section 2(h) of the Act, “Internal Committee” means an Internal Complaints Committee constituted under section 4 of the Act.

Local Committee:

According to Section 2(i) of the Act, “Local Committee” means the Local Complaints Committee constituted under section 6 of the Act.

Respondent:

According to Section 2(m) of the Act, “respondent’ means a person against whom the aggrieved woman has made a complaint under section 9 of the Act.

Work Place:

According to Section 2(0) of the Act, “workplace” includes—

1. any department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a government company or a corporation or a co-operative society;
2. any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
3. hospitals or nursing homes;
4. any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
5. any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
6. a dwelling place or a house;

Sexual Harassment:

According to Section 2(m) of the Act, “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—

1. physical contact and advances; or
2. a demand or request for sexual favours; or
3. making sexually coloured remarks; or
4. showing pornography; or
5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

According to Section 3 of the Act: The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:

1. implied or explicit promise of preferential treatment in her employment; or
2. implied or explicit threat of detrimental treatment in her employment; or
3. implied or explicit threat about her present or future employment status; or
4. interference with her work or creating an intimidating or offensive or hostile work environment for her; or
5. humiliating treatment likely to affect her health or safety.

Internal Complaints Committee:

According to Section 2(h) of the the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, “Internal Committee” means an Internal Complaints Committee constituted under section 4 of the Act.

Section 4 of Chapter II of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with the Internal Complaints Committee. To look after problems related to harassment of women at the workplace, every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee at different levels and offices of the organization.

The Internal Committees shall consist of a Presiding Officer who shall be a woman preferably employed at a senior level at the workplace from amongst the employees. Not less than two Members of the committee from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge. One member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. At least one-half of the total Members so nominated shall be women.

The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.

Removal of Presiding Officer or Member of Internal Complaints Committee:

Presiding Officer or Member of Internal Complaints Committee, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section in following circumstances

1. contravenes the provisions of section 16; or
2. has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
3. he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
4. has so abused his position as to render his continuance in office prejudicial to the public interest.

Local Committee:

According to Section 2(i) of the Act, “Local Committee” means the Local Complaints Committee constituted under section 6 of the Act. Sections 5 to 8 of Chapter III of the Act, deals with the Local Committee.

Section 5 of the Act deals with the notification of the district officer. According to Section 5 of the Act, the appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act.

Jurisdiction of Local Committee:

Section 6 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with the jurisdiction of the Local Committee.  According to Section 6 of the Act,

1. Every District Officer shall constitute in the district concerned, a committee to be known as the “Local Committee” to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.
2. The District Officer shall designate one nodal officer in every block, taluka, and tehsil in the rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Committee within a period of seven days.
3. The jurisdiction of the Local Committee shall extend to the areas of the district where it is constituted.

Constitution of Local Committee:

Section 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with the constitution of the Local Committee.  According to Section 7 of the Act, the Local Committees shall consist of a Chairperson be nominated from amongst the eminent women in the field of social work and committed to the cause of women. One Member to be nominated from amongst the women working in the block, taluka or tehsil or ward or municipality in the district. Two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed. At least one of the nominees should, preferably, have a background in law or legal knowledge. At least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government, from time to time. The concerned officer dealing with the social welfare or women and child development in the district shall be a member ex officio.

Removal of Chairperson or Member of Local Committee:

Chairperson or Member of Local Committee, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section in the following circumstances

1. contravenes the provisions of section 16; or
2. has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
3. he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
4. has so abused his position as to render his continuance in office prejudicial to the public interest.

Complaint of Sexual Harassment:

Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with the complaint of sexual harassment. According to Section 9 of the Act, any aggrieved woman may make, in writing, a complaint of sexual harassment at the workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of the last incident. If such a complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing. The Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit for filing the complaint not exceeding three months if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

If the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

Conciliation:

Section 10 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with the conciliation between the respondent and the aggrieved woman. According to Section 10 of the Act, before initiating an inquiry under section 11 and at the request of the aggrieved woman, the Internal Committee or, as the case may be, the Local Committee, may take steps to settle the matter between her and the respondent through conciliation, but there should not be a monetary settlement as a basis of conciliation.

When settlement is reached the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation. The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent. Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.

Inquiry Into Complaint:

Section 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with an inquiry into the complaint made by the aggrieved woman. According to Section 10 of the Act, before initiating an inquiry under section 11 and at the request of the aggrieved woman, the Internal Committee or, as the case may be, the Local Committee, may take steps to settle the matter between her and the respondent through conciliation, but there should not be a monetary settlement as a basis of conciliation. The inquiry under Section 11(1) shall be completed within a period of ninety days.

According to Section 11 of the Act, when there is no conciliation has arrived between the respondent and the aggrieved woman or the respondent fails to comply with any condition of settlement the respondent and the aggrieved woman under Section 10 of the Act, the inquiry is initiated under Section 11 of the Act. The Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make an inquiry into the complaint in accordance with the provisions of the Service Rules applicable to the respondent. If no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exists, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable. If both the parties are employees, the parties shall, during the course of the inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee

Notwithstanding anything contained in section 509 of the Indian Penal Code (45 of 1860), the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15 of the Act.

According to Section 16 of the Act, publication or making known contents of complaint and inquiry proceedings is prohibited. The contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent, and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press, and media in any manner

According to Section 17 of the Act, If any person entrusted with the duty to handle or deal with the complaint, inquiry, or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for a penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed.

Power of Committees During Enquiry:

For the purpose of making an inquiry under Section 11(1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:

• summoning and enforcing the attendance of any person and examining him on oath;
• requiring the discovery and production of documents;
• any other matter which may be prescribed.

Action During the Pendency of Inquiry:

Section 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with the actions to be taken during the pendency of the inquiry.

During the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer 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; or
• grant such other relief to the aggrieved woman a may be prescribed.

The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled. On the recommendation of the Internal Committee or the Local Committee, as the case may be, under Section 12(1), the employer shall implement the recommendations made Section 12(1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.

Inquiry Report:

Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with an inquiry report.According to Section 13 of the act, on the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.

Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.

Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be

• to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
• to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15: Provide that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman: Provided further that in case the respondent fails to pay the sum referred to in Section 13(2), the Internal Committee or as, the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.

Punishment for False or Malicious Complaint and False Evidence:

Section 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with the punishment for false or malicious complaint and false evidence. according to Section 14 of the Act,

1. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (1) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed: Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section: Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended.
2. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

Determination of Compensation:

Section 15 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with the determination of compensation. According to Section 15 of the Act, for the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall have regard to—

• the mental trauma, pain, suffering, and emotional distress caused to the aggrieved woman;
• the loss in the career opportunity due to the incident of sexual harassment;
• medical expenses incurred by the victim for physical or psychiatric treatment;
• the income and financial status of the respondent;
• feasibility of such payment in a lump sum or in installments.

Appeal

Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with appeal. According to Section 18 of the Act,

1. Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or subsection (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.
2. The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.

Duty of Employer:

Section 19 of the Act deals with the duties of employer. According to Section 19 of the Act the duties of employer are as follows:

• provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace;
• display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
• organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
• provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
• assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
• make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9;
• provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
• cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
• treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
• monitor the timely submission of reports by the Internal Committee

Conclusion:

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides a robust mechanism for redressal to women. It requires public awareness, sensitivity, and robust implementation of the Act, to avoid such incidents.