The Sexual Harassment Of Women at Workplace(Prevention, Prohibition and Redressal)

The Sexual Harassment Of Women at Workplace(Prevention, Prohibition and Redressal)









INTRODUCTION

                 An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints there with or incidental there to.

             where as sexual harassment results in violation of the fundamental rights of a women to equality under Art:14 & Art:15 of the constitution of india and her right to life and to live with dignity under Art:21 of the constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment and where as the protection against sexual harassment and the right to work with dignity are universally recognized human rights by international convention on the elimination of all forms of Discrimination against women, which has been ratified on the 25th June ,1993 by the Goverment Of India.

DEFINITIONS

=> "Aggrived Woman" means:-

(i) In relation to a workplace, a women of any age whether employed or not,who alleges to have been subjected to any act of sexual harassment by the respondent.

(ii)In relation to a dwelling place or house, a women of any age who is employed in such a dwelling place or house.

=> "Appropriate Government" means:-

(i) In relation to a workplace which is established,owned, controlled or wholly or substantially financed by funds provided directly or indirectly.

* By the Central Government or the Union Territory administration.the Central Governments.

*By the State Government, the State Government.

(ii) In relation to any workplace not covered under sub clauses(i) and falling within its territory, the State Government.

=> "Domestic Worker" means:-

             a woman who is employed to do the household work in any household or remuneration whether in cash or kind,either directly or full time basis,but does not include any member of the family of the employer.

=>"Employee" means:-

             a person employed at a workplace for any work on regular, temporary,ad hoc or daily wage basis,either directly or through an agent including a contractor,with or, without the knowledge of the principle employer,wheter for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied contract worker, probationer, trainee, apprentice or alled by any other such name.

=>"Employer" means:-

(a) 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.

(b) A demand or request for sexual favours; or

(c) Making sexually coloured remarks; or

(d) Showing pornography; or

(e) Any oter unwelcome physical,verbal or nonverbal conduct of sexual nature.

=> "Workplace" includes:-

(i) 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 cooperative society.

=>Prevention of Sexual harassment:-

(a) No woman shall be subjected to sexual harassment at any workplace.

(b) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment.

(i) implied or explicit promise of preferential treatment in her employment; or

(ii) implied or explicit threat of detrimental treatment in her employment; or

(iii) implied or explicit threat about her present or future employment status; or

(iv)interference with her work or creating an intimidating or offensive or hostile work environment for her; or

(v) humiliating treatment likely to affect her health or safety.

=> Complaint of Sexual harassment

(a) Any aggrieved woman may make in writing, a complaint of sexual harassment at workplace to the internal 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 moths from the date of last incident:-Provided that where such complaint cannot be made in writing, the presiding officer or any member of the internal committee or the chair person 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; provided further that 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 not exceeding three moths if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

(b) Where 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 a complaint under this section.   

=>   Punishment for false or malicious complaint and false evidence. 

(a) 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 subsection (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. 

(b) 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

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

                The elimination of gender-based discrimination has been one of the fundamentals of the Constitutional edifice of India. The principle of gender equality is enshrined in the Constitution, in its Preamble, fundamental rights, fundamental duties and Directive Principles. However, workplace sexual harassment in India, was for the very first time recognized by the Supreme Court of India in its landmark judgment of Vishaka v. State of Rajasthan2 (“Vishaka Judgment”), wherein the Supreme Court framed certain guidelines and issued directions to the Union of India to enact an appropriate law for combating workplace sexual harassment. Nothing less of an irony, the POSH Act and the POSH Rules was enacted 16 years after the Vishaka Judgement. In the absence of a specific law in India, the Supreme Court, in the Vishaka Judgment, laid down certain guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment (“Vishaka Guidelines”) which were being followed by employers until the enactment of the POSH Act.

(i) The Vishaka Judgement

                     In 1992, Bhanwari Devi, a dalit woman employed with the rural development programme of the Government of Rajasthan, was brutally gang raped on account of her efforts to curb the then prevalent practice of child marriage.3 This incident revealed the hazards that working women were exposed to on a day to day basis and highlighted the urgency for safeguards to be implemented in this regard. Championing the cause of working women in the country, women’s rights activists and lawyers filed a public interest litigation in the Supreme Court of India under the banner of Vishaka. The Supreme Court of India, for the first time, acknowledged the glaring legislative inadequacy and acknowledged workplace sexual harassment as a human rights violation. In framing the Vishaka Guidelines, the Supreme Court of India placed reliance on the Convention on Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of the United Nations, in 1979, which India has both signed and ratified. As per the Vishaka Judgment, the Vishaka Guidelines issued under Article 32 of the Constitution, until such time a legislative framework on the subject has been drawn-up and enacted, would have the effect of law and would have to be mandatorily followed by organizations, both in the private and government sector. As per the Vishaka judgment, ‘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 nonverbal conduct of sexual nature. Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work or voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace. 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 and promotion), or when it creates a hostile working environment. Adverse consequences might result if the victim does not consent to the conduct in question or raises any objection thereto.’ 

Author By Adv.Maitry Ketankumar Kansara