Sexual Harassment at the Workplace

Held. Further directions pending legislation. States were to amend their Civil Services Conduct Rules within two months so that the report of a Complaints Committee is DEEMED TO BE AN INQUIRY REPORT in a disciplinary action rather than a preliminary inquiry, and to make corresponding amendments to the Industrial Employment (Standing Orders) Rules; to constitute Committees at taluka, district and State level, each headed by a woman and, so far as possible, with an independent member; to ensure that a complainant is not made to work under a harasser found guilty and that transfer is used where appropriate; and that intimidation of complainants and witnesses attracts severe disciplinary action. The professional bodies were directed to secure compliance among their members.

The lesson to state. A judicial direction is not a substitute for a statute. The Court could declare the right and design the machinery; it could not staff it, fund it or make an employer build it, and fifteen years later most of it did not exist. The Act followed within months.

The Act of 2013: definitions

Section 1. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, Act 14 of 2013, dated 22 April 2013, extending to the whole of India and brought into force on 9 December 2013.

Section 2(n), sexual harassment. Any one or more of the following UNWELCOME acts or behaviour, whether directly or by implication: physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. The definition is Vishaka's, put into a statute.

Section 2(a), aggrieved woman. In relation to a workplace, a woman OF ANY AGE, whether employed or not, who alleges to have been subjected to an act of sexual harassment by the respondent; in relation to a dwelling place, a woman employed there. Note both halves: the complainant need not be an employee, and the Act reaches domestic work.

Section 2(o), workplace. Government departments and bodies substantially financed by government; private sector organisations of every description; hospitals and nursing homes; sports institutes and venues; ANY PLACE VISITED BY THE EMPLOYEE arising out of or during the course of employment, including transport provided by the employer; and a dwelling place or house.

Section 2(e) and 2(p). Domestic worker, and unorganised sector, defined by enterprises of individuals or the self-employed with fewer than the stated number of workers.

Sections 2(b), (c), (d), (f) to (m). Appropriate Government, Chairperson, District Officer, employee, employer, Internal Committee, Member, prescribed and respondent, among others.

Section 3. No woman shall be subjected to sexual harassment at any workplace. Sub-section (2) lists circumstances which may amount to it if present in relation to any act of sexual harassment: an implied or explicit promise of preferential treatment in her employment; an implied or explicit threat of detrimental treatment; an implied or explicit threat about her present or future employment status; interference with her work or the creation of an intimidating, offensive or hostile work environment; and humiliating treatment likely to affect her health or safety.

Note what section 3(2) does. It is the statutory recognition of both classic forms: quid pro quo, in the first three clauses, and hostile environment, in the last two.

The machinery

Section 4, the Internal Committee. Every employer shall constitute one by order in writing, at every administrative unit or office. It consists of a Presiding Officer who is a woman employed at a SENIOR LEVEL at the workplace, with provisos for where none is available; not fewer than two members from the employees, preferably committed to the cause of women or having experience in social work or legal knowledge; and one member from a non-governmental organisation or association committed to the cause of women or a person familiar with the issues. AT LEAST ONE HALF of the members must be women. Members hold office for not more than three years, and the outside member is paid fees by the employer.

Section 5. The appropriate Government may notify a District Magistrate, Additional District Magistrate, Collector or Deputy Collector as District Officer.

Sections 6 and 7, the Local Committee. Every District Officer shall constitute one to receive complaints from establishments where no Internal Committee exists, because there are fewer than ten workers or because the complaint is against the EMPLOYER himself, and from domestic workers and others in the unorganised sector. Its Chairperson is nominated from among eminent women in the field of social work; one member from among women working in the block, taluka, tehsil, ward or municipality; and two members, of whom at least one a woman, from non-governmental organisations or persons familiar with the issues, with the district social welfare or women and child development officer ex officio.

Section 8. Grants by the Central Government to the State Government for the purposes of the Act, and the audit of the accounts.

The complaint

Section 9. Any aggrieved woman may complain IN WRITING to the Internal Committee, or to the Local Committee where none exists, within THREE MONTHS of the incident, or of the last of a series. Where the complaint cannot be made in writing, the Presiding Officer or a member must render all reasonable assistance to put it in writing. The Committee may extend the time by not more than a further three months for reasons recorded in writing. Where the woman is unable to complain by reason of physical or mental incapacity or death, her legal heir or a prescribed person may complain.

Section 10, conciliation. The Committee may, BEFORE initiating an inquiry and AT THE REQUEST of the aggrieved woman, take steps to settle the matter by conciliation, but no MONETARY SETTLEMENT may be made the basis of it. A settlement is recorded and forwarded for action, and copies are given to the parties.

Section 11, inquiry. Where the respondent is an employee, the Committee inquires in accordance with the service rules or, where none exist, as prescribed. Where the respondent is an employer of a domestic worker, the Local Committee forwards the complaint to the police within seven days if a prima facie case exists. The Committee has the powers of a civil court as to summoning and examining on oath, discovery and production of documents, and such other matters as may be prescribed. Both parties are to be heard and given a copy of the findings. The inquiry shall be completed within NINETY DAYS.

Section 12, interim relief. During the pendency of an inquiry, on the written request of the aggrieved woman, the Committee may recommend that she or the respondent be transferred, that she be granted leave of up to three months in addition to her entitlement, or such other relief as may be prescribed.

Section 13, the report. The findings go to the employer or District Officer within TEN DAYS of completion, and are made available to the parties. If the allegation is not proved, the Committee recommends that no action be taken. If it is proved, it recommends action for sexual harassment as misconduct under the service rules, and the deduction from the respondent's salary of such sum as it considers appropriate to be paid to the woman or her heirs; if deduction is impossible the respondent may be directed to pay, and on default the sum is recovered as an ARREAR OF LAND REVENUE. The employer or District Officer must act on the recommendation within SIXTY DAYS.

Section 14, false or malicious complaints. Where the Committee concludes that the allegation is malicious, or that the complainant knew it to be false, or produced forged or misleading documents, it may recommend action against her under the service rules, and likewise against a witness who gives false evidence or produces forged documents. Two provisos: a mere INABILITY TO SUBSTANTIATE a complaint or to provide adequate proof shall not attract action; and malicious intent must be established after an inquiry.

Section 15, compensation. In determining the sum, the Committee shall have regard to the mental trauma, pain, suffering and emotional distress caused; the loss of career opportunity; medical expenses for physical or psychiatric treatment; the income and financial status of the respondent; and the feasibility of payment in a lump sum or in instalments.

Sections 16 and 17, confidentiality. Notwithstanding the Right to Information Act 2005, the contents of the complaint, the identity and addresses of the woman, the respondent and the witnesses, the conciliation and inquiry proceedings, the recommendations and the action taken shall not be published or made known to the public, press or media. Contravention by a person entrusted with the duty attracts penalty under the service rules or as prescribed.

Section 18, appeal. Against the recommendations under section 13(2) or 13(3)(i) or (ii), under section 14(1) or (2) or under section 17, or against non-implementation, to the court or tribunal under the service rules or as prescribed, within NINETY DAYS.

The duties, and what happens if they are not performed

Section 19, the employer's duties. To provide a safe working environment, including safety from persons coming into contact at the workplace; to display at a conspicuous place the penal consequences of sexual harassment and the order constituting the Internal Committee; to organise workshops and awareness programmes for employees and orientation for Committee members; to provide the Committee with the necessary facilities and to secure the attendance of the respondent and of witnesses; to make available such information as the Committee may require; to assist the woman if she chooses to file a complaint under the Indian Penal Code, now the Bharatiya Nyaya Sanhita, or any other law; to initiate action under the criminal law against the perpetrator, or, where the perpetrator is not an employee, in the workplace where the incident occurred; to treat sexual harassment as MISCONDUCT under the service rules and initiate action accordingly; and to monitor the timely submission of the Committee's reports.

Section 20, the District Officer's duties. To monitor the timely submission of the Local Committee's report and to engage non-governmental organisations for awareness.

Sections 21 and 22, reporting. Each Committee prepares an annual report for the employer and the District Officer, who forwards a brief report to the State Government; and the employer includes the number of cases filed and their disposal in the annual report of the organisation, or intimates the number to the District Officer.

Sections 23, 24 and 25, government functions. To monitor implementation and maintain data on cases filed and disposed of; to develop information, education and training material and organise awareness and orientation programmes, subject to resources; and to call for information and authorise inspection of records and of the workplace in the public interest or in the interest of women employees.

Section 26, the penalty. Failure to constitute an Internal Committee, to act under sections 13, 14 and 22, or any other contravention, is punishable with a FINE WHICH MAY EXTEND TO FIFTY THOUSAND RUPEES. A second conviction of the same offence attracts twice the punishment, subject to the maximum, and cancellation or non-renewal of the licence, approval or registration required to carry on the business.

Section 27. No court shall take cognizance except on a complaint by the aggrieved woman or a person authorised by the Committee; no court inferior to a Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence; and every offence under the Act is NON-COGNIZABLE.

Sections 28, 29 and 30. The Act is in addition to and not in derogation of any other law; the Central Government may make rules, and the section lists the matters; and the Central Government may remove difficulties by order within two years of commencement, every such order to be laid before each House.

The criticisms, which MU's "significance" question expects

The Committee is the employer's. The Presiding Officer and two members are the employer's own employees, nominated by the employer, and only one member is external. Independence is structural, and this is the standing criticism.

Section 14 chills complaints. A provision for punishing a false complaint has no counterpart in most other grievance procedures, and although both provisos protect a complainant who simply cannot prove her case, its presence is what a respondent points to first.

The Act is for women only. Section 2(a) and section 3 speak of a woman, so a man or a person of another gender harassed at work has no remedy under this Act and must use the service rules or the criminal law.

The unorganised sector depends on a Local Committee that often does not exist. Medha Kotwal Lele found exactly that under the guidelines, and the reporting under sections 21 to 23 is the only way to know whether it has changed.

The penalty is small. Fifty thousand rupees for not constituting a Committee at all, and the offence is non-cognizable and needs a complaint.

And it is a civil and disciplinary remedy. Section 28 preserves the criminal law, and the corresponding penal provisions on outraging modesty, stalking and voyeurism operate separately, which is [Crimes against Women].

A worked example

A woman employed by a firm of twelve people complains that a director made repeated remarks of a sexual nature and, when she objected, moved her to a lower-profile project.

Which committee? The firm has more than ten workers, so an Internal Committee under section 4 should exist. If the respondent is the EMPLOYER himself, the complaint goes to the Local Committee under section 6 instead.

Is it harassment? Section 2(n)(iii), sexually coloured remarks, with section 3(2)(iv), an intimidating or hostile environment. And the move is section 3(2)(ii), an implied threat of detrimental treatment. Under A.K. Chopra the absence of physical contact is irrelevant.

Time. Three months from the last incident under section 9, extendable by a further three for reasons recorded.

Conciliation. Only at HER request under section 10, and no monetary settlement may be its basis.

During the inquiry. She may ask under section 12 for the respondent or herself to be transferred, or for up to three months' leave over and above her entitlement.

The inquiry. Ninety days under section 11(4), with civil court powers, both sides heard, findings supplied.

The outcome. Report in ten days under section 13; if proved, action as misconduct and a deduction from his salary to be paid to her, calculated on the section 15 factors; the employer must act within sixty days; appeal within ninety days under section 18.

If the firm has no Committee at all. Section 26: a fine up to fifty thousand rupees, on a complaint under section 27, and the complaint goes to the Local Committee in the meantime.

What this does NOT mean

It does not mean the Act replaces the criminal law. Section 28 says so expressly, and the penal provisions on assault to outrage modesty, stalking and voyeurism operate alongside.

It does not mean a complaint that fails is a false complaint. The first proviso to section 14 says the opposite in terms.

It does not mean conciliation may buy a complaint off. The proviso to section 10(1) forbids a monetary settlement as the basis of conciliation.

And it does not mean the workplace ends at the office door. Section 2(o)(v) includes any place visited during the course of employment, including transport provided by the employer.

Quick revision

Vishaka 1997: guidelines from articles 14, 15, 19(1)(g) and 21 with CEDAW, binding until legislation. A.K. Chopra 1999: physical contact NOT necessary; a departmental inquiry is not a criminal trial. Medha Kotwal Lele 2012: fifteen years on, Committees largely unformed; the Committee's report to be DEEMED an inquiry report under the service rules; Committees at taluka, district and State level headed by a woman; no working under a harasser found guilty.

Act 14 of 2013, in force 9 December 2013. s.2(n) unwelcome acts: physical contact and advances, a demand for sexual favours, sexually coloured remarks, showing pornography, any other unwelcome conduct of a sexual nature. s.2(a) aggrieved woman of ANY AGE, employed or not. s.2(o) workplace, including any place visited during employment, employer's transport, and a dwelling house. s.3(2) quid pro quo in clauses (i) to (iii) and hostile environment in (iv) and (v). s.4 Internal Committee, senior woman Presiding Officer, two employee members, one external, at least half women, three-year terms. ss.5 to 7 District Officer and Local Committee, for units under ten workers, complaints against the EMPLOYER, and the unorganised sector. s.8 grants and audit.

s.9 written complaint in three months, extendable by three, assistance to reduce it to writing, legal heir where incapacitated. s.10 conciliation only at her request, NO monetary settlement as its basis. s.11 inquiry, civil court powers, ninety days. s.12 interim transfer or three months' extra leave. s.13 report in ten days, action as misconduct, deduction from salary, recovery as arrear of land revenue, employer to act within sixty days. s.14 false or malicious complaint, with two provisos. s.15 compensation factors.

ss.16 and 17 confidentiality notwithstanding the RTI Act, and penalty. s.18 appeal in ninety days. s.19 employer's duties. s.20 District Officer. ss.21 to 25 reporting, monitoring, publicity, inspection. s.26 fine up to fifty thousand rupees, doubled and licence cancelled on a second conviction. s.27 cognizance only on complaint, Magistrate of the first class, NON-COGNIZABLE. s.28 not in derogation. ss.29 and 30 rules and removal of difficulties within two years.

Test yourself

1. What did A.K. Chopra decide about physical contact? That it is not a necessary ingredient of sexual harassment at the workplace. An attempt to molest, and any unwelcome conduct of a sexual nature, is misconduct whether or not contact occurs, and a High Court errs in treating a departmental inquiry as a criminal trial or in substituting its own view of the punishment.

2. Why is Medha Kotwal Lele the case that explains why the 2013 Act was needed? Because fifteen years after Vishaka the Court found that several States and Union Territories had formed no Complaints Committee at all, or only one for an entire State. It shows that a court can declare a right and design machinery but cannot staff, fund or compel the building of it, so a statute was required.

3. Set out the composition of the Internal Committee under section 4. A Presiding Officer who is a woman employed at a senior level at the workplace; not fewer than two members from among the employees, preferably committed to the cause of women or with experience in social work or legal knowledge; and one member from a non-governmental organisation or a person familiar with the issues. At least one half of the members must be women, and they hold office for not more than three years.

4. When does the Local Committee, and not the Internal Committee, take a complaint? Where the establishment has fewer than ten workers so no Internal Committee exists; where the complaint is against the EMPLOYER himself; and for domestic workers and others in the unorganised sector.

5. State the two provisos to section 14 and why they matter. That a mere inability to substantiate a complaint or to provide adequate proof shall not attract action against the complainant, and that malicious intent must be established after an inquiry conducted in the prescribed manner. They matter because without them the provision punishing false complaints would deter every complaint that could not be proved.