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The Bill on the Sexual Harassment at the Workplace [The Sexual Harassment ofWomen at Workplace (Prevention, Prohibition and Redressal) Bill, 2012] got passed by the Lok Sabha on 3rd September, as news sources put it, ‘amidst the protests over Coalgate’. India did not have any legislation to deal with sexual harassment at the workplace and in that sense, the bill is a welcome addition. So far the ‘law’ for the purpose of dealing with ‘sexual harassment at the workplace’ emanated from the operative Guidelines on Sexual Harassment at the Workplace, issued by the Supreme Court of India in 1997, in the case of Vishaka v. State of Rajasthan. Under Article 19 (1) g of the Indian Constitution, all citizens have been granted the right to practice any profession, or to carry on any occupation, trade or business. Vishaka established that a logical consequence of incidents, which result in violation of the fundamental rights of ‘Gender Equality’ and ‘Right to Life and Liberty’, is that it causes a violation of the victim’s fundamental right under Article 19 (1) g. The Vishakha guidelines recognized that sexual harassment is not just a personal injury to the affected woman but violates a woman’s right to equality at the workplace. The guidelines shifted the onus for ensuring employees’ safety and gender equality to the employer and institutions, whether it is in the government or the private sector and the employer was made responsible for implementing both preventive and remedial measures to make the workplace safe for women.
The campaign around a law for sexual harassment at the workplace was to ensure an access to a safe workplace by the woman following guidelines laid down by the Apex court in Vishakha. In 2010, more than 10 years after Vishakha, the Bill was introduced in the Lok Sabha on December 7, 2010. The 2010 version of the bill defined sexual harassment at the work place and created a mechanism for redressal of complaints through ‘internal complaints committee’ in the workplace or ‘local complaints committee’ at the district and block level. However, there was a hiccup, in the nature of action being sought to be taken against false or malicious charges. The Parliamentary Standing Committee that submitted its report in June 2011, had recommended removal of ‘malicious’ and retention of ‘false’. The present version of the bill, to the dismay of activist and lawyers, retains the contentious S 14 calling for action against the complainant in case the “internal committee or the local committee as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the compliant knowing it to be false…” The danger in this is that the entire purpose of Vishakha and this law is defeated.Complaint ‘not proved’ does not mean that the complaint is false. There are remedies under the ordinary law (e.g. defamation) to resort to if the complaint is found to be ‘false’. Second, how is malice to be determined? Such provision will have a chilling effect and a woman will hardly if ever make a complaint when sexually harassed. A Bill seeking to remedy complaints of the most under reported crime needs to do away with such provision. Are members of complaints committee competent to measure if complaints are made ‘maliciously’? The answer is a clear ‘No’.
The bill in S 13 visualises a two stage enquiry process. Even after the inquiry committee has found that sexual harassment has taken place,it is required to send the report to the disciplinary committee for action under the Service Rules. This means that the employer will start another enquiry on the same complaint again in accordance with law, Public servants will then have to face an enquiry under Central discipline rules. The woman will have to lead evidence again and subject herself to cross examination again as per the Central Civil Service Rules and there will be a fresh report and the report will then have to go to the disciplinary authority for deciding the punishment. The application of the service rules that require cross examination of witness etc do not provide the adequate safeguards to the complainant as is required in a case of sexual harassment at workplace. There is no justification why a complainant should depose twice. Witnesses may or may not be willing to depose twice. Private sector employers also have rules which require enquiries to be held according to the rules and it is not clear if they too will conduct a second enquiry. The value of the Internal complaints committee is being completely undermined by Sec 13 (3)(i).
In contrast to this , the Supreme Court of India in Medha Kotwal has clarified that the report of the complaints committee is final and that the disciplinary authority can only deal with the punishment but not start a second stage enquiry.
This means that enquiry is not required to be conducted again but that the disciplinary authority will only decide the punishment after giving to the employee an opportunity to make a representation against the report and on punishment. This section must be appropriately modified.
The Bill does not cover members of the armed forces. Women in the the armed forces must be covered as there is a high rate of sexual harassment in the armed forces , judging from complaints that have come to court in the last decade. It must also be remembered that the Armed forces are in any event heavily male dominated and the chain of command is strong and entrenched. Enquiries are held behind closed doors putting women in the Armed forces at a disadvantage to begin with. There is no need to exclude such women from the purview of the act as no strategic or other interests are affected by protecting them against sexual harassment at the workplace.
That complaints must be made within 3 months is also unwarranted. Women who survive sexual harassment and other forms of gendered violence may not and cannot approach a grievance redressal mechanism in the immediate aftermath.
We have uploaded a copy of the bill here:
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