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Anti-Sexual Harassment Law: Worth The Wait?

Published on Sat, Mar 09,2013 | 13:40, Updated at Tue, Mar 12 at 17:13Source : Moneycontrol.com |   Watch Video :

India is just one signature away from a new law on the prevention, prohibition and redressal of sexual harassment at the workplace. It's been a 15 year long wait. in the absence of a law the supreme court of India laid down comprehensive guidelines in the landmark Vishaka case judgment in 1997. but as we have discovered not even the apex court has followed its own directions. the need for a law has been keenly felt as more women join the workplace in India...and though the bill has been pending for more than 5 years, its passage through parliament picked up pace only after the horrific Delhi rape last year. so has the 15 year wait been worth it? Payaswini Upadhyay finds out

sexual harassment: physical contact and advances; demand or request for sexual favors; sexually colored remarks; showing pornography; and any other unwelcome physical, verbal or non-verbal conduct of sexual nature would amount to sexual harassment.

8,570 cases of sexual harassment were reported in India in 2011. That’s to the police. The unreported cases in workplaces across the country are likely to be many times that. 
To facilitate the reporting of sexual harassment complaints the new law mandates the creation of committees, with a majority of women and at least one woman NGO member.  The 1997 Supreme Court Vishaka judgment included a similar requirement...but the lack of compliance is evident in that the apex court itself has not constituted such a committee to date.

Vibha Makhija
Senior Advocate, SC

"There was a case of sexual harassment in the Delhi High Court – an appeal of which had come up in the Supreme Court and the ladies, the working lawyers, in the SC felt that it was time that some redressal system is set up in the court premises also. About 63 ladies have filed an intervention application in the case of this particular lady. We are seeking a setting up of a Committee to address this problem."

Filed intervention application for implementation of Vishaka judgment in SC
Intervention application filed in the matter of Amit Chanchal Jha vs Registrar, Delhi HC
Case reached the SC in 2012

Now all employers in the organised sector – whether courts, companies, hospitals, educational institutes or government departments - will have to constitute such Internal Complaints Committees at all administrative units or offices.

Anti-Sexual Harassment Law
Employers to set up Internal Complaints Committees at all offices
Law does not define ‘hostile work environment’
Law does not require Internal Complaints Committee members to have legal background

Employer should provide Internal Complaints Committee members orientation programmes

Leading I-T company Infosys constituted a Internal Complaints Committee in 1999, 2 years after the Vishaka judgment and a year before it faced a high profile sexual harassment lawsuit that led to the sacking of its head of sales and marketing -Phaneesh Murthy. The company says it regained face quickly only because it had systems in place; systems it has since strengthened

Nandita Gurjar
Senior VP & Group Head- HR, Infosys

"I think, us formalizing this as a policy was important because, you’re right, sometimes company’s management believes its important but it doesn’t naturally cascade into the junior levels but when you introduce it as a formal policy, then not abiding by it has a consequence which is why employees take it very seriously. Beyond the policy, the education part of it – both to men and women- as to what this policy would mean in terms of its effect- so what are behaviours which are acceptable, what are behaviours which are non-acceptable, what are the forums that a woman can go to file a sexual harassment complaint, the confidence which people need to get that this policy is serious, I think is a very very critical part."

Even more critical in the unorganised sector. Asha Bajpai, Professor of Law at the Tata Institute of Social Sciences says, the initial challenge will be in communicating the existence of this law and its processes to the unorganized workforce. 

Asha Bajpai
Professor of Law, Tata Institute of Social Sciences

"For them, we’ll have to do campaign- an intense campaign- how we do it for pulse polio; something like that through mass media. Make very simple material which can be disseminated through various community groups, through various micro-credit organizations, through various federation that are there for unorganized workers, trade unions could help in this. You could also go to such places where these domestic workers are likely to go- doctors or schools or day care centers- these are the places where you should have wide and very simple dissemination."

In workplaces that employ less than 10 people and where the complaint is against the employer itself, a Local Complaints Committee set up by District Officers will address sexual harassment complaints. Women rights activist Flavia Agnes worries that these Local Committees may fall prey to bureaucratic and political control.

Anti-Sexual Harassment Law
District Officers to set up Local Complaints Committee
Committee to address complaints from workplaces with < 10 employees & where complaint is against employer  
Law covers domestic workers

Local Complaint Committee will forward complaints by domestic workers to police if prima facie case exists

Flavia Agnes
Lawyer
Founder- Majlis, Women’s Rights Organization

"There will be a lot of competition at the Taluka level, the local politicians will dominate or the local bureaucrats will dominate. There is no way anybody else from civil society will get into that and even if people from Trade Union etc do get it, one cannot vouch for their sensitization. So that should be the role of the Ministry of Women and Child, or Labor Ministry to get all the Taluka level Local Complaints Committee into a workshop to see and lay guidelines for them and only then we can hope something may emerge."

Any resistance to set up a Committee can cost an employer a fine of up to 50,000 thousand rupees and repeated violations could lead to the cancellation of business license. The law gives the victim a 3-month window to file a complaint and the redressal rests on 2 Cs

Conciliation and compensation. The law entrusts complaints committees with the powers of a civil court – allowing for the examination of a person under oath and the discovery and production of documents. Based on the hearings, the committee can then suggest conciliation and even order compensation. Though no conciliation process or compensation limits are prescribed in the law, the forthcoming rules may make that clear.

Asha Bajpai
Professor of Law, Tata Institute of Social Sciences

"The very idea of a Conciliation process in a sexual harassment case will create difficulties because I remember the Family Courts Act where Conciliation is mandatory before any case goes to the court. Now what is happening is many family courts is that conciliation many a times becomes a compromise. If there are untrained counselors, conciliation doesn’t achieve its objective. So we need to have professionally trained counselors for the conciliation process so that it doesn’t become a pressure tactic and it shouldn’t become something that tells a woman that you know settle."

Tanaya Mishra
Senior VP – HR, JSW Steel

"Sexual harassment is never about compensation; that’s one big no-no. That’s really not something a person is looking at if it’s a genuine sexual harassment case. What one is looking for is justice and an environment which is supporting them. So they want the backing of the organization and senior management – whether it means a transfer to a department or another place- basically they don’t want to deal with this situation."

The new law does provide for such disciplinary action – by a disciplinary committee. Thus implying that the findings of the complaints committee are not final. That also means the victim and the accused could undergo a 2nd cross examination if the disciplinary committee so wants. The SC had ruled against this in the 2012 Medha Kotwal case saying the disciplinary committee should act on the report of the complaints committee but this new law is silent on that. It also leaves it up to employers and their internal service rules to decide what disciplinary action to take.


Nandita Gurjar
Senior VP & Group Head- HR, Infosys

"Unless you are very serious in what is serious and what is the level of punishment which needs to be given for what kind of an act, I think the execution of this could fail. For eg, at Infosys, we have four levels which are defined very clearly in terms of saying if somebody has been proved for doing action x,y or z; then a certain kind of severity would follow. And so it is very important for all organizations and institutions to have the same level because unless you have the same level, one organization would take it lightly depending upon who the offender was and the other organization may take it seriously."

Disciplinary action is as far as this new law goes. The most severe punishment under that being termination of service. For a victim seeking a harsher punishment the only route is under the Indian penal code.

The IPC has no specific sexual harassment section. In the past, victims have filed charges under Sections 354 and 509 that deal with assault to outrage a woman’s modesty or insulting the modesty of a woman.
 
Rupan Deol Bajaj V/S KPS Gill

Rupan Deol Bajaj: Former IAS Officer
KPS Gill: DG Police (1988)
Rupan Deol Bajaj filed complaint against Gill under Sec 354 & 509, IPC 
SC upheld conviction under Sec 354 & 509 of the IPC

Sec 354: 'criminal assault of women to outrage women's modesty
Sec 509: ‘word, gesture or act intended to insult the modesty of a woman’

Vibha Makhija
Senior Advocate, SC

"The Bill doesn’t make sexual harassment a criminal offence. There are a lot of Special Enactments; like you have the SC/ST Act which makes atrocities against the SC/ST sections a criminal offence. This special enactment does not make any such activity a criminal offence. Secondly, it says that no court will take any cognizance of any matter arising out of this Bill. Therefore, on one hand, you do not make it an offence and if there is any content of sexual harassment under 354 IPC, until and unless the victim makes that complaint, there can be no police case before any magistrate for taking cognizance; whereas that is the regular method of 354 complaints where police makes an investigation and lays the chargesheet before the magistrate for taking cognizance; now that power has been taken away."

Flavia Agnes
Lawyer
Founder- Majlis, Women’s Rights Organization

“If you have a punishment of this or that category which is to be decided by the Complaints Committee- which is, in a way, external to the process of disciplinary action – that might not have validity and you might go to Court and challenge it. I think the whole purpose is to put it back into the machinery of the organization.”

Asha Bajpai
Professor of Law, Tata Institute of Social Sciences

“As far as criminal consequence of a sexual harassment case is concerned, I think the law could have given a clearer guideline so that when the Complaints Committee refers the matter to the police, the police is mandated to file a complaint, investigate it and also take action. The Committee should help the victim in filing the complaint and pursue the matter and take it to its logical conclusion because criminal complaints cannot be dealt by Internal Committees because the law of evidence, IPC etc have to be followed as far as criminal action is concerned.”

Interestingly this new law offers no protection to male victims of sexual harassment...though it does protect men from malicious complaints. If the Complaints Committee concludes that a complaint or the evidence is false, it can take action against the woman complainant. Though for that the Committee would need to establish malicious intent and the lack of proof cannot become a ground for punishment.

There is another safeguard- this one gender neutral – and has to do with confidentiality. This new law will be RTI proof- the identity and the inquiry proceedings cannot be accessed via the Right to Information Act and anyone who divulges this information can be penalised as well. That may be good for the victim but it also leaves employers with no means to determine the past record of an employee! That said, I’d like to conclude by saying that more aspects of this new law, or almost law, will come to light when the rules are notified. Hopefully they will fill in the gaps that experts have pointed out in this story.

In Mumbai, Payaswini Upadhyay

 
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