The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed by the Rajya Sabha on 26th February 2013. Lok Sabha has passed it in September 2012.
Sexual
Harassment at workplace is a violation of women’s right to gender
equality, life and liberty. It creates an insecure and hostile work
environment, which discourages women’s participation in work, thereby
adversely affecting their economic empowerment and the goal of inclusive
growth. However,
there is no domestic law to address this issue except a few provisions
of the Indian Penal Code and the Supreme Court Guidelines in the case
of Vishaka vs. State of Rajasthan. The increasing
work participation rate of women has made it imperative that a
comprehensive legislation focusing on prevention of sexual harassment as
well as providing a redressal mechanism be enacted.
The salient features of the Act are as follows:
(i) It
defines “sexual harassment at the workplace” in a comprehensive manner,
in keeping with the definition laid down in the Vishaka judgment,
and broadening it further to cover circumstances of implied or explicit
promise or threat to a woman’s employment prospects or creation of
hostile work environment or humiliating treatment, which can affect her
health or safety.
(ii) The
definition of “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.
(iii) While the “workplace” in the Vishaka guidelines
is confined to the traditional office set-up where there is a clear
employer-employee relationship, the Act goes much further to include
organisations, department, office, branch unit etc in the public and
private sector, organized and unorganized, hospitals, nursing homes,
educational institutions, sports institutes, stadiums, sports complex
and any place visited by the employee during the course of employment
including the transportation.
(iv) Definition of employee
covers regular/temporary/ad hoc/daily wage employees, whether for
remuneration or not and can also include volunteers. The definition of
employer includes the head of the Government
department/organisation/institution/office/branch/unit, the person
responsible for management/supervisions/control of the workplace, the
person discharging contractual obligations with respect to his/her
employees and in relation to a domestic worker the person who benefits
from that employment.
(v)
The redressal mechanism provided in the Act is in the form of Internal
Complaints Committee (ICC) and Local Complaints Committee (LCC). All workplaces
employing 10 or more than 10 workers are mandated under the Act to
constitute an ICC. The ICC will be a 4 member committee under the
Chairpersonship of a senior woman employee and will include 2 members
from amongst the employees preferably committed to the cause of women or
has experience in social work/legal knowledge and includes a third
party member (NGO etc) as well.
(vi) Complaints
from workplaces employing less than 10 workers or when the complaint is
against the employer will be looked into by the LCC. A District
Officer notified under the Act will constitute the LCC at the district
level. LCC will also look into complaints from domestic workers.
(vii)
LCC will be a five member committee comprising of a chairperson to be
nominated from amongst eminent women in the field of social work or
committed to the cause of women, one member from amongst women working
in block/taluka/tehsil/manicipality in the district, two members of whom
at least one shall be a woman to be nominated from NGOs committed to
the cause of women or a person familiar with the issues related to
sexual harassment provided that at least one of the nominees should
preferably have a background in law or legal knowledge. The concerned
officer dealing with the social welfare or women and child development
shall be an ex officio member.
(viii) A
complaint of sexual harassment can be filed within a time limit of 3
months. This may be extended to another 3 months if the woman can prove
that grave circumstances prevented her from doing the same.
(ix)
The Act has a provision for conciliation. The ICC/LCC can take steps to
settle the matter between the aggrieved woman and the respondent,
however this option will be used only at the request of the woman. The
Act also provides that monetary settlement shall not be made a basis of
conciliation. Further, if any of the conditions of the settlement is not
complied with by the respondent, the complainant can go back to the
Committee who will proceed to make an inquiry.
(x) The
Committee is required to complete the inquiry within a time period of
90 days. On completion of the inquiry, the report will be sent to the
employer or the District Officer, as the case may be, they are mandated
to take action on the report within 60 days.
(xi)
In case the complaint has been found proved, then the Committee can
recommend action in accordance with the provision of service rules
applicable to the respondent or as per the rules which will be
prescribed, where such service rules do not exist. The committee can
also recommend deduction of an appropriate sum from the salary of the
respondent or ask respondent to pay the sum. In case the respondent
fails to pay such sum, district officer may be asked to recover such sum
as an arrear of land revenue.
(xii)
In case the allegation against the respondent has not been proved then
the Committee can write to the employer/district officer that no action
needs to be taken in the matter.
(xiii)
In case of malicious or false complaint then the Act provides for a
penalty according to the Service Rules. However, this clause has a
safeguard in the form of an enquiry prior to establishing the malicious
intent. Also, mere inability to prove the case will not attract penalty
under this provision.
(xiv)
The Act has provisions for providing reliefs to the aggrieved woman in
the interim period including leave and transfer during the pendency of
the inquiry.
(xv)
The Act prohibits disclosure of the identity and addresses of the
aggrieved woman, respondent and witnesses. However, information
regarding the justice secured to any victim of sexual harassment under
this Act without disclosing the identity can be disseminated.
(xvi)
The Act casts a responsibility on every employer to create an
environment which is free from sexual harassment. Employers are required
to organize workshops and awareness programmes at regular intervals for
sensitizing the employees about the provision of this legislation and
display notices regarding the constitution of Internal Committee, penal
consequences of sexual harassment etc.
(xvii)
An employer will be liable to a fine of Rs 50,000 in case of violation
of his duties under the Act and in case of subsequent violations the
amount of fine will be double together with penalty in the form of
cancelation of his licence, withdrawal or non-withdrawal of the
registration required for carrying out his activity.
(xviii)
In case of domestic worker the procedure is different considering the
nature of employment. A domestic worker can approach the LCC in case of
any complaint. If the complainant wishes then conciliation may be
carried out. However, in other cases if the complaint is proved prima
facie then the LCC can forward the complaint to the police for
registering the case and taking appropriate action under the relevant
provision of IPC.
(xix) Regarding monitoring, the Act provides that the State
Governments will monitor implementation and maintain data for all State
Government establishments as well as private establishments in their
territory. For establishments of the Central Government this duty is
cast on the Government of India. All ICCs have to submit Annual reports
to the employer who inturn will submit it to the district officer. All
LCCs shall submit their annual report to the district officer. The
district officers will submit the report annually to the State
Governments.
(xx)
The Central and State Governments are mandated to develop relevant IEC
and training materials and organise awareness programmes to advance the
understanding of the public on the provisions of this Bill.
(xxi)
The Central Government will provide financial assistance to the States
to meet the expenditure of fee and allowances payable to the members of
the Local Complaints Committee.