The Indian law on sexual harassment in the workplace

Why in News?

• The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, which was enacted in 2013, aims to address sexual harassment at the workplace.
• However, the Supreme Court of India has highlighted lapses and uncertainty in its implementation.
• The court has directed government bodies to verify the formation of Internal Complaint Committees and ensure their composition aligns with the Act.

The Law Against Sexual Harassment

Abstract:

Women were sexually harassed long before there was a term for it. Since industrialization, women working in factories and offices have had to endure sexual comments and demands by bosses and coworkers as the price for economic survival.In the absence of civil and penal laws in India, for providing adequately and specific protection to women from sexual harassment in the work places, in 1997, the Supreme Court passed a landmark judgment in Vishaka vs.State of Rajasthan, laying down guidelines to be followed by establishments in dealing with complaints about sexual harassment. After almost two decades, the specific Act against sexual harassment has been formulated by the Indian Legislature. Although the Act was welcomed and expected to meet the needs of the present day, the problematic provisions and unanswered questions present a conundrum for application of the Act, and should to be clarified for effective implementation of the Act.

The Kerala High Court upheld the principles laid down in its previous judgment and opined that sexual harassment at the workplace should start from an express or implied sexual advance or unwelcome behaviour which has a ‘sexual’ tone behind it. In the absence of a ‘sexual’ tone to the behaviour, provisions of the PoSH Act will not apply. The court further clarified that the definition of ‘sexual harassment’ under the PoSH Act is an inclusive definition and accordingly any other form of ‘sexual’ treatment or ‘sexual’ behaviour can fall under the purview of the PoSH Act.

POWERS OF THE ICC

The Delhi High Court stressed upon the fact that the ICC’s role was limited to holding an enquiry and submitting a report as per the provisions of the PoSH Act. If a case of sexual harassment is made out, then the recommendations of the ICC can only be for taking appropriate action for misconduct in accordance with the provisions of the service rules as contained in Section 13 of the PoSH Act. If a case of sexual harassment is not made out by the ICC, the ICC can only conclude that no action is required to be taken. On the other hand, in this case, it was noted that the ICC had made observations in its report on the conduct of the parties (in spite of the conduct falling outside the scope of ‘sexual harassment’) and opined that the parties had indulged in an in-appropriate / unbecoming conduct and indiscipline, and recommended that the competent authority take suitable action against them. The court pointed out that the ICC cannot make comments on the personal conduct of the parties and that the ICC’s jurisdiction would be restricted to the allegations of sexual harassment and whether a complaint is made out or not to that effect.

Conclusion

Sexual harassment is considered as a violation of a woman’s fundamental right. It is against the human rights standards set at the international level through conventions such as the UDHR or the CEDAW. Prior to the year 1997, India neither had a legislation combating the menace of sexual harassment at workplace nor was there any sturdy judicial pronouncement dealing with the same apart from the Constitutional safeguards. The Sexual Harassment Against Women at Workplace Act as an alternative structure and process is welcome, but needs much alteration. Helping the victims to make informed choices about the different resolution avenues, providing trained conciliators, settlement options by way of monetary compensation, an inquisitorial approach by the Committee must be adopted. After almost 4 years of its enactment, consideration must be given to the criticisms against it and thereby, adopt provisions that answer the need of the hour. The legislation appears to be further excessive in the redressal mechanisms which it has established by leaving short-comings in the powers and functions of these non-judicially equipped bodies. Moreover, some provisions could have been more leaning to the female victim, such as the provisions for conciliation and punishment for false or malicious complaints. The problematic provisions and unanswered questions present a conundrum for application of the Act, and should to be clarified for effective implementation of the Act.

Moreover, the utmost need at this time is a change in the mindset to understand the fears, compulsions, and pressures on women victims. Instead of blaming the victim for having invited such sexual advances, it is important to shift the blame to the perpetrators. The law should also bring within its ambit the situations faced by men as it also goes on to hamper their productivity just like it affects the over-all well-being of an aggrieved woman.

Read also:- World Day For Safety And Health At Work