With more and more women coming out and voicing their allegations of sexual harassment meted out to them, India’s own #MeToo movement is gaining momentum. Several influential men have been called out from diverse fields of work, including film industry, stand-up comedy, and media, and heads have started rolling. Among the big names that have come out are men who were senior colleagues or bosses when the alleged harassment took place. Indian laws clearly state what constitutes sexual harassment at workplace. For organisations employing 10 or more people, there are Vishaka guidelines that write down acts defined as sexual harassment and the action that’s required to be taken.
What are Vishaka guidelines and what do they say?
The guidelines date back to 1997 when the Supreme Court laid them down while passing judgment in a public interest litigation filed by Vishaka and other women’s rights groups over the infamous Bhanwari Devi gangrape case. Bhanwari Devi, a social worker from Rajasthan had in 1992 prevented the marriage of a one-year-old girl, inviting wrath of the villagers. The gangrape was allegedly an act of revenge.
Hearing the PIL, the apex court took note of the fact that the civil and penal laws of the time did not adequately provide for specific protection of women from sexual harassment at workplaces, and made it legally binding for employers to observe some guidelines to ensure prevention of
sexual harassment of women.
Prohibition, prevention, redress — these were the three key obligations that were imposed on institutions as the guidelines defined sexual harassment at workplaces. The Supreme Court said every organisation must set up an internal complaints committee or ICC to look into matters of sexual harassment of women at the workplace.
What is the law that currently governs sexual harassment at workplace?
In 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed broadening the Vishaka guidelines. Defining sexual harassment in clearer terms, the new law laid down the procedures for complaint and inquiry, and the action to be taken.
The Act mandates that every organisation with 10 or more employees set up an internal complaints committee of ICC at each office or branch. It defines various aspects of sexual harassment and protects all women working at, or even visiting, a workplace, in any capacity. The Act defines as “victim” any woman “of any age whether employed or not”, who alleges to have been “subjected to any act of sexual harassment”.
What constitutes sexual harassment at workplace?
The Vishaka guidelines define as sexual harassment any unwelcome sexually determined behaviour (whether directly or by implication). These are:
- Physical contact and advances
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
With the 2013 law broadening these guidelines, the Ministry of Women & Child Development has published a Handbook on Sexual Harassment of Women at Workplace Act. The handbook has detailed instances of unwelcome behaviour that constitutes sexual harassment at the workplace. These can be, broadly:
- Sexually suggestive remarks or innuendos; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life
- Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails
- Intimidation, threats, blackmail around sexual favours; also, threats, intimidation or retaliation against an employee who speaks up about these
- Unwelcome social invitations with sexual overtones, commonly seen as flirting
- Unwelcome sexual advances
According to the handbook, “unwelcome behaviour” is experienced when the victim feels bad or powerless; it causes anger/sadness or negative self-esteem. It adds unwelcome behaviour is one which is “illegal, demeaning, invading, one-sided and power based”.
The Act specifies five circumstances that amount to sexual harassment. These are:
- Implied or explicit promise of preferential treatment in her employment
- Implied or explicit threat of detrimental treatment
- Implied or explicit threat about her present or future employment status
- Interference with her work or creating an offensive or hostile work environment
- Humiliating treatment likely to affect her health or safety.
Who is an ‘aggrieved woman’ as per the Act?
According to the Handbook on Sexual Harassment of Women at Workplace, the Act recognises the right of every woman to a safe and secure workplace environment “irrespective of her age or employment/work status”. Any woman coming to any workplace “whether in the capacity of regular, temporary, adhoc, or daily wages basis” is protected under the Act.
It further says such women can be “engaged directly or through an agent including a contractor, with or without the knowledge of the principal employer”; they may be working for remuneration, or on a voluntary basis, a contract worker, probationer, trainee, apprentice, or called by any other such name.
The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, cannot be made public, as per the Act.
How to file a complaint of sexual harassment at workplace?
The 2013 Act says the aggrieved woman may make, in writing, a complaint of sexual harassment. However, a written complaint is not mandatory. If she cannot give a written complaint, the Act says, any member of the ICC “shall” render “all reasonable assistance” to her for facilitating it. Also, if the woman is unable to make a complaint citing “physical or mental incapacity or death or otherwise”, her legal heir may do so.
Time-frame for making a complaint to ICC
According to the Act, the complaint of sexual harassment has to be made “within three months from the date of the incident”. If such incidents have taken place over a time, the complaint should be made within three months from the date of the last incident. However, the ICC has the discretion to “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”. The ICC needs to record these reasons to exercise the right.
What happens after a complaint is made?
Once a complaint is made, the ICC can offer conciliation under Section 10 of the Act. Before starting an inquiry, the ICC may “at the request of the aggrieved woman, take steps to settle the matter between her and the respondent though conciliation”. It is to be seen, however, that “no monetary settlement shall be made as a basis of conciliation”.
If conciliation is not an option, the ICC may straightaway forward the complaint to the police under IPC Section 509 (word, gesture or act intended to insult the modesty of a woman) that carries a maximum punishment of one year jail with fine. Or, it can start its own inquiry and complete it within 90 days.
Enjoying powers similar to those of a civil court, the ICC can summon and examine any person on oath, can ask for production of related documents before it. During the inquiry, if the woman makes a written request, the ICC “may” also recommend her transfer, a three-month leave, or any other relief it deems fit. Once the inquiry is over, the ICC is to provide a report to the employer within 10 days, making available a copy of it to the victim too.
What happens after the ICC report?
If the ICC finds the allegations true, it will recommend to the company to take action against the accused for misconduct “in accordance with the provisions of the service rules”. In case the company does not have service rules, the recommended action may include disciplinary action, including a written apology, reprimand, warning, censure; withholding promotion/ pay raise/ increment; termination of service; counselling; community service.
The ICC can also recommend financial damages to the complainant. The amount can be decided taking into consideration “mental trauma, pain, suffering and emotional distress caused”, medical expenses incurred, loss of career opportunity, and income and financial status of the respondent.
Once the ICC furnishes its recommendations, the aggrieved woman or the respondent can challenge the report in a court of law within 90 days.
What happens to the ‘victim’ if her complaint is found to be false?
Section 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act deals with false complainant. If the ICC finds the complaint to be false, the Act says, it may recommend action against the woman or the person who has made the complaint. The Act, however, makes it clear that “a mere inability to substantiate a complaint or provide adequate proof need not attract legal action. Also, no action can be recommended against the complainant unless an inquiry establishes malicious intent on part of the complainant.