You are on page 1of 17

Sexual Harassment of Women at Workplace Act

2013- Meaning, Consequences and Problems

Army Institute of Law, Mohali

In the partial fulfillment of BA LLB 5 Year Cousre

Submitted to Submitted by
M/s Amrita Rathi Mohini
1470
Acknowledgement

I, Mohini a second year student from Army Institute of Law would like to express my deepest
gratitude to Miss Amrita Rathi, Assistant Professor of Law, for her kind support and guidance.
She has helped me in making this project through enlightening me on this topic. I am really
thankful to her for cooperating with me whenever required. I have learnt a lot through my project
and the various aspects of adultery are now clear in my mind.

Mohini

1470

3nd year
Sexual Harassment of Women at Workplace Act 2013- Meaning,
Consequences and Problems

Introduction

The need for Sexual Harassment of Women at Workplace Act was talked about for the first time
after the case of Bhanwari Devi. After this case Vishaka guidelines were framed in 1997. These
guidelines in 2013 came out as the Act. This Act aims at protecting women from harassed at
their workplace. It is beneficial as this act provides for speedy trial as within the company’s
internal committees are formed to solve such matter. But with all these benefits comes with
loopholes mainly being that this act is not gender neutral. But one major point of this act is that it
punishes women who file a wrong case. This helps in reducing fake cases being filed and takes
back the extra leverage given to women in usual cases. This act ignores Men as they are also
being harassed and there is a need to bring all such cases also under surveillance.

This Act should be made gender neutral. Along with there should be a committee over the
Company’s to check whether these agencies are functioning properly or not? This will help in
increasing the efficiency of this act and will help this legislation to be functional in real terms.
Sexual Harassment of Women at Workplace Act 2013- Meaning,
Consequences and Problems
“Beauty provokes harassment, the law says, but it looks through men's eyes when deciding what
provokes it.” – Naomi Wolf

 Meaning of Sexual Harassment

Sexual Harassment is very old from its origin. According to Black law Dictionary meaning
Sexual Harassment refers to unwanted sexual advances by another person.
"Sexual harassment" includes any one or more of the following unwelcome acts or behavior
(Whether directly or by implication) namely:—
i. physical contact and advances; or
ii. a demand or request for sexual favors; or
iii. making sexually coloured remarks; or
iv. showing pornography; or
v. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;1

Sexual Harassment at workplace refers to any unwanted or unwelcome behavior at the place of
work. The first essential is that the sexual advances made by the culprit should be unwelcomed
by the vicyim because if it is agreed by the person then it is consensual sex which could not be
fought against under law.
To identify it two main forms of sexual harassment are there:

1 quid pro quo- It is a sexual blackmail

2 Hostile environments

Quid pro quo Harassment is characterized by the denial of an economic benefit to punish the
victim for rejecting a sexual overture or demand. Among other things the consequences of
rejecting a vexatious sexual advance may be refusal to hire, increase in workload, denial of
promotion, or dismissal or forced resignation. Hostile environment is a more subtle and insidious

1
Sexual Harassment at workplace Act, 2013
phenomena.2 This type of sexual harassment was first included by US government. This type of
sexual harassment leads to a lot of pressure on the victim and it causes mental pressure.

2.Origin of the Act

This act came into force after the case of Vishaka $ Ors vs State of Rajasthan $ Ors3. The case
was filed when Bhanwari Devi a social worker raised her voice against Child labor and was
brutally gang raped by a group of men. Then the Supreme court set up certain guidelines
popularly known as Vishaka guidelines and which now has finally resulted into the Sexual
Harassment of Women at Workplace Act, 2013. It is deemed to be a great success for working
women of today’s era .After a gap of of 16 long years between the guidelines and the act, finally
the Act has been passed. It really was a long way in. This has been a major loophole on the side
of the legislations to take so long as to pass a law which needed immediate response toward it to
save the dignity of working women and to help them to excel in their fields.

3. Consequences of harassment at work

Harassing of women leads to many worst consequences. It effects women both physically and
mentally. She feels like being nowhere and sometimes give up her work in order to escape
societal pressure.

Personal and Economic problems

 They lose their moral and they have a feeling of being inferior from their opposite sex
comes. They feel left out and the enthusiasm to work and achieve more ends there.
 Lack of confidence is another major problem they feel as if they have nothing left to be
achieved and face a lot of psychological pressure.
 Job insecurity – Sometimes the victim may need the job in order to fulfill her necessities
and her economic condition may be really worst. Hence, she has no other option but to
accept such sexual harassment to cope up.
 Economic deterioration- The victim may not have any other job in his hand and even
does not seem to get it even in a long run. Companies also face this problem as

2
Alok Bhasin, Sexual Harassment at Workplace 5 [1 st ed 2007]
3
AIR 1997 SC 3011
companies may lose valuable staff. Many women resign rather than go through the
unpleasantness of a confrontation. In a division of a company employing many women,
where the problem was rife, few women stayed longer than three months. This almost
bankrupted the division due to high recruitment and training costs, and poor
productivity.4 Absenteeism would be another consequence as the women would start
avoiding coming to work and would prefer to get job somewhere else. The workforce of
the company gradually decreases which leads to reduction of output resulting in decline
of profits.

Social problems

Along with it the pressure faced by women at social level is another big issue. They face social
pressure and sometime are unable to bear it which leads to their suicide. They even face health
problems like depression, high blood pressures, suicides, post traumatic stress problems. The
breaking up of her relations with her in laws as they do not accept her as it being a taboo is
another such consequence. They sometime believe as the women is not pure now and they file
divorce case against her for having illicit relations which in return threatens the women before
filing a case against the wrongdoer.

3.1 In the case of Gopal Goel Kanda

Geetika was found dead on August 5, 2012, at her Ashok Vihar residence in northwest Delhi. In
her suicide note, she had said she was ending her life due to "harassment" by Mr. Kanda and
Chadha. However the case is still in court and Kanda has been released on bail.

This case at prime facie shows that sometimes the party harassing is at such a high position that
the victim has no other remedy other than to quit her decision of fighting against him. Sometimes
the victim commits suicide in order to prove her innocence. Committing of suicide is not only to
prove herself right but also to bring the wrongdoer in the light of law and media. So that he can
be punished accordingly.

4
Western Cape Government, Consequences of Sexual Harassment, 5 th September, 2013
4. Harassment leads to violation of the Constitution

Harassing a women is also against the spirit of constitution. As Article 14 which provides for
equality before law, Article 15 which provides for the prohibition of discrimination on the
ground of religion, race, caste, sex or place of birth, Article 16 Equality of opportunity in matters
of public employment, Article 21 Protection of life and personal liberty, Article 39 which deals
with the principles of policy to be followed by the state5. All these rights are violated if women
are harassed at her workplace. Constitution is regarded as the highest body of law and if
fundamental rights of the citizens are violated then she or he has the right to directly approach
Supreme Court under Article 32 and High court under Article 226.

4.1 Tarun Tejpal case:

Tarun Tejpal, editor of the investigative journalism magazine Tehelka, has been accused of
attempting to rape a young female colleague. Tehelka specializes in sting operations, exposing
corrupt politicians and writing against sexual violence. While the magazine has lost some of its
sheen in recent years, a generation of journalists thought of Tejpal as a crusader for the
underdog. No more. In a graphic email leaked to the media, the victim accused Tejpal of
assaulting her in a hotel lift during a festival in Goa. The whole case might have been swept
under the carpet if Tejpal had not written a series of emails, to try to justify his behavior.6 He has
been granted bail by the Supreme Court but he has to cut himself from the social life.

Sexual Harassment Act makes it mandatory for every big organization to set up internal local
body to keep a check on such cases. But if the case is against the head of the organization then
there arises a problem. No one takes a step against the wrongdoer as everyone has job
insecurities in their minds.

5
Constitution
6
The Tarun Tejpal case shows sexual harassment is a problem india has to face upto. [30th march 2015] ,
http://www.theguardian.com/commentisfree/2013/nov/29/india-sexual-harassment-women-workplace.
5. Sexual harassment being a major problem even for Administrators

1 India has been shamed by a string of high-profile rapes and sexual attacks on women, the
country's prime minister, Narendra Modi, has said in his first Independence Day speech as prime
minister.7

2 Union Women and Child Development Minister Maneka Gandhi has asked various chambers
of commerce and industry to ensure constitution of internal complaints committees to deal with
sexual harassment cases.

In a letter to chambers of commerce and industry, including FICCI, CII, Assocham and PHD,
she said her ministry has been receiving complaints from women working in the private sector
about the absence of such a committee in their organizations.8

6. The benefits of this Act

6.1 The number of cases registered after sexual harassment Act, 2013 has increased many folds.
It comes up as the losing grip of the administrators, but after the act the awareness amongst
people has increased many folds. They have started protecting their rights against such grave
crimes and have started fighting against these grave injustices prevailing in the society.
Although, still due to the pressure of the society and other pressures many cases go still
unregistered women fears still to fight the cases. The awareness amongst people is still not
subsistent, the government has not taken this act to the fullest but it will take time to adhere to
this act fully in the coming years. But still from the recent times women are now more well
equipped to fight against such cases. Even the society has brought reforms. They have started
accepting the victim with care rather than blaming them for any kind of sin. But still the down
trodden thinking exists and is even somewhat prevalent in the society.

7
Ibid 6
8
Maneka writes to Indian inc on sexual harassment committees. 15 april, 2015. http://www.business-
standard.com/article/news-ians/maneka-writes-to-india-inc-on-sexual-harassment-committees-
115032001006_1.html
6.2 The procedure laid down by the Legislators reduces the pressure on the judiciary as Internal
Complaint Committee or Local Complaint Committee is to be formed within the companies
which directly reduce the burden of increasing number of cases in the courts. The increased
number of cases in every court is a matter of pressure on courts to decide the cases but due to
these new style of speedy trial by the way of setting up of committees reduces burden of courts
initially. It reduces unnecessary Red tapism and gives judiciary time to discuss on important
matters.

6.3 The Act also gives women a better position at work and gives her the right to raise her voice
whenever she is ill treated sexually. The act has provided all working women with great
enthusiasm to work and has given right protest against wrong. The need of the hour was
somehow fulfilled by this act by enhancing Vishaka guidelines into this act. They somehow feel
relieved as if the matter is registered within the company as her reputation is at lesser harm. As
there can be made strict instructions to the employees not to spread the news about the victim.
This protects the victim from social trauma and untouchability to some extent.

6.4 This act does not give supreme power to women. Legally, the punishment for filing a false
complaint can be as serious as the punishment for committing sexual harassment itself. The
challenge, of course, is in having a mature ICC which is capable of performing this function. a
man’s reputation is not sullied just because a sexual harassment complaint has been filed against
him - the law provides us confidentiality protection too. Even if, by chance, a man is found to
have committed sexual harassment, his identity cannot be disclosed in the public. This provides a
meaningful opportunity to start on a clean slate in future.9 This somewhat protects man from
false complaints as the women filing a false complaint is punished accordingly. This clause is a
saving clause for all men and it is of great advantage. It does not give blind right to the women to
just target men for her personal grievances. And it even protects the female as it provides for her
immediate remedies and she is even protected as false complaint does not mean her incapacity to
prove the case. She even has additional remedy to approach court in case she is not satisfied with
the decision of the internal local committee she can move to the court for an decision

9
Dear Indian men, calm down! Women can't misuse anti-sexual harassment laws at workplaces. April 15,2015
http://www.firstpost.com/living/dear-indian-men-calm-down-women-cant-misuse-anti-sexual-harassment-laws-
at-workplaces-2130451.html
accordingly. Moreover, this act gives consequent rights to both male and female to protect
themselves accordingly. This law gives immediate remedies to both male or female as the case is
decided. The law has even spread awareness to villages and has helped to improve the condition
of women at work. It also ensures proper environment and proper responsibility of the employer
to protect the modesty of the women and punish any person who infringes it in any manner.

7 Drawbacks in the Sexual harassment of Women at Workplace Act, 2013

1 This Act is not gender neutralized as it only involves women working at workplace and does
not include men As men are also sexually harassed even though in low proportion but still they
need protection under law and they are not taken into due account. This violates Article 14 and
15 of the constitution as equality before Law is not maintained. As Fundamental rights are to be
ensured to every citizen but males are not protected under it. Neither they are given equal
protection of law nor they are given equal protection under law. The sections 354, 509, and 376
of the Indian Penal Code which deal with sexual assault, namely, outraging the modesty of a
woman, eve teasing and committing rape of a woman, all assume that men cannot be subjected to
these crimes. The Vishakha guidelines which aim to prevent sexual harassment in work places
are also just limited to women. Consulting firm Ipsos (formerly Synovate) conducted a survey
across seven Indian cities, polling over 500 corporate professionals, last December. It found that
38 per cent of the respondents believed men were as vulnerable to sexual harassment as women
in today’s work environment, says Madhurima Bhatia, head, media engagement, Ipsos Research,
Delhi.10

2 Section 2(o) of this act provides for any place in the course of employment including taxi and
hotels where by the employer has no control. It is quite strange and wrong as the employer
cannot be made liable to places which are totally out of his control. He has no link to that place
so creating liability at such a far off is not genuine as he cannot be made liable to the a crime in
which he is not involved. There has to be something definite more than this as to punish anyone
as just being the employer he cannot be omnipotent. This provides for a clause which deals with
impossibility. As there is no possibility for the employer to be present at a such a distant place.
And it is not possible for the employer to take up liability of such things which are out of his
reach.

10
Adam, it’s madam. April 15,2015. http://www.telegraphindia.com/1130331/jsp/7days/story_16729862.jsp#.VS-
59tyUehM
3 Section 10 of the act. The internal committee, or as the case may be, the local committee,
may, before initiating any inquiry under section 11 and at the request of the aggrieved women
takes steps to settle the matter between her and respondent through conciliation.11 It is a ponder
that a women who is sexually harassed would settle the dispute by pacifying the matter to just
conciliation. As her modesty is being outraged and why would she just agree without a fair and
just trial. And how could she let the man go off so easily. She would definitely need a strictest
punishment for the person for outraging her modesty. This should be a criminal offense and
lenient means to solve the matter should not be taken up as the time needs stricter laws and rules.
And to stop any wrong what is required id punishment which stops the wrongdoer from
committing such acts. The fear of law is absolutely necessary at places where the crime is at a
huge level it should just not go unheard or unpunished.

4 The setting up of internal complaint committee is not helpful as if the owner or head of the
company or organization is involved in the case then some kind of biasness comes into deciding
the case. And moreover it is strange that how can people with no legal knowledge decide the
matter between them. People with no legal qualification are not legitimate to decide cases of
such importance. This is why we have proper procedure to select the judiciary of the country as
they are As Section 11 provides the Committee with same powthe only ones who are eligible to
decide a case. Hence, cases with such important question of law should be decided only by
eminent jurists and not by any person as such. People in that committee may be some who do not
have sufficient legal knowledge, so in actual sense they are not capable of deciding the case.
Hence the law needs to keep a check on whom the enforcement responsibility is given. As
enforcement is equally important. And in order to make a law successful both of them should
work in cooperation with each other then only a successful law could be reached.

In Rajendra Pachauri case

He quit as chair of the U.N. panel of climate scientists, ending 13 turbulent years in charge of the
Nobel Peace Prize-winning group, after a sexual harassment complaint against him.12 His
company had an internal complaint committee but was rendered as useless even after filing of

11
The Sexual Harassment of Women at Workplace Act, 2013
12
Rajendra Pachauri quits IPCC after sexual harassment complaint. 23 rd march, 2015.
http://in.reuters.com/article/2015/02/24/climatechange-pachauri-idINKBN0LS0Z420150224
complaint by the victim along with evidences. Hence this shows the incompetence of internal
complaint committee. This clearly shows the incompetency on the part of internal complaint
committee as they need to be free from biasness. But the present scenario is totally different as
there is complete monopoly of the head as to protect himself or his companions from such
allegations without even being questioned once.

5 Section 14 states that in case of false complaints (which are backed by forged documents
submitted by the complainant or a malicious intent, which needs to be proved) an action will be
taken as per the service rules of the organization. Further, it states, if the complaint cannot be
substantiated, it will not attract any action. This is an unfair provision as only such false cases
which are coupled with forged documents or proving malicious intent attracts penalties. With
just one complaint the whole life of the man is ruined, the woman gets immediate relief as
mentioned in paragraph 6 above but no particular penalty is prescribed for false complaints.
Non-proving of complaint may imply that a frivolous complaint was filed. This is not fair.13 The
law if made should be based on equity, justice and good conscience. And this law is not fair
hence it does not stand for equity which is the basic pillar for any legislation making it a valid
question of its validity.

6 Section 15 provides for monetary compensation paid to the women that depend upon;

 The mental trauma, pain, suffering and emotional distress caused to her
 The loss in the career opportunity due to the incident of sexual harassment
 Medical expenses incurred by the victim for physical or psychiatric treatment
 The income and financial status of the respondent (Respondent is the person who
supposedly commits the harassment)
 Feasibility of such payment in lump sum or in installments.14

It states that compensation would be according to the salary of the respondent which is
not fair enough as it means a ‘wealthier the respondent more will be the compensation’.
For such a grave crime how such a leniency could be given to the convict as he should be

13
A Voice for Men 15 April, 2015. http://www.avoiceformen.com/feminism/feminist-governance-feminism/indias-
new-sexual-harassment-at-workplace-law/
14
The Sexual Harassment of Women at Workplace Act, 2013
penalized badly under such complaints handled by this Act in a stricter manner and not
according to his comfort or salary. The culprit should be penalized according to the crime
and not according to his comfort. As people committing such crimes would feel relieved
as if they are not penalized accordingly. Punishment is one of the ways to stop crimes and
if such people will go unpunished or are not appropriately punished it further gives them
courage to commit greater or such crimes in future. Hence, punishment should be given
to person who commits wrong so that he does not dear to commit such acts in the future.

7 As per section 16, is specifically kept outside the purview of Right to Information (RTI)
Act. Therefore, details of false / fabricated cases will not be available. Further, even in case of
false complaints, the identity of the woman will be not be disclosed but the man is open to media
trials and his information may be made public. Further, in case of genuine cases, the details may
be made public provided the identity of the woman is protected.

There are many issues here, keeping it out of the purview of the RTI Act will not provide
information on the misuse of this Act. Further, only successful cases will be reported thus
proving a 100% success rate. The identity of women, even in false cases, is kept confidential. As
there are no penalties for false cases (we have discussed this is paragraph 8 above) and identity is
protected, there is no disincentive to file a false cases. Just an accusation by the woman will
destroy a man’s life with no consequences whatsoever for fabricated complaints.15

8 Failure of this Act

1 Even after the passing of the act number of cases have rapidly increased. Government data
shows that there were over 300 complaints of sexual harassment last year; the figure has steadily
climbed over the last few years from 107 cases in 2011, 147 in 2012 and 249 in 2013.16 This
clearly shows that the cases are increasing at a rapid rate. Law if made and is not successful in
threatening the wrongdoers or if it does not reduce the number of cases, it is said to have been

15
A Voice for Men.13 april, 2015. http://www.avoiceformen.com/feminism/feminist-governance-feminism/indias-
new-sexual-harassment-at-workplace-law/
16
India: Overview Of The Sexual Harassment Of Women At Workplace.16 April, 2015.
http://www.mondaq.com/india/x/348338/employment+litigation+tribunals/Overview+Of+The+Sexual+Harassment
+Of+Women+At+Workplace
never there. The increasing complains are a major problem. But the unreported cases are also a
major problem a lot many cases go just like that either by accepting such unwelcome responses
or by quitting up of the job. Both the remedies taken up by the victim shows incompetence on
the side of law.

2 The Internal committees are not set up in most of the organizations and if they are set up they
are not functional. They are not having any person with legal knowledge as such hence they are
sometime not capable of deciding the matter. The matter should only be decided by competent
authorities and not by anyone in general. Hence selecting anyone for the committee is a failure in
itself. Only competent jurists can decide upon such a matter which relates to the modesty of the
women. Their protection is given in the hands of a person who does not know what all remedies
could be given to the victim except this act. And it reduces the confidence of victim in the court
decisions. It leads to constant disturbance in the mind of the victim as if she is in the safe hands

or not. It is a crime which could be committed again and again. Hence just by a lenient order
may be the crime would be committed again hence it needs a proper check by proper people at
proper time in a proper manner.

3 Even though awareness has increased but still number of unreported cases are also increasing.
Hence still the Government and the organizations have to take reasonable steps to spread
awareness about it amongst all the people. As illiterate women are also working hence to protect
them also they should be given knowledge about it. Certain NGO’s have been set up by
individuals and sometimes even funded by states sometimes to spread awareness. But still people
in far off villages do not know about their rights or remedies which are available to them.
Illiterate women sometimes even if they are in cities do not know how to react or where to go in
such situations, they are adversely affected. Hence if law is made and people do not know about
is in itself a failure. As laws are made for the welfare of the society and if that does not happen it
means it is of no use. Even big organizations do not have this internal complain committee in
their set up. As it is a new concept and they even take it as a extra unnecessary burden.
9 Suggestions

1 Tribunals should be set up in spite of internal complaint committee as there will be more of
legal people involved to solve matter which is eminent to protection of modesty of women.
Setting up of Tribunals will increase the faith of victim to file as a case as internal committee
may be biased as if the case is against the owner. As the matter is concerned with a major
offence which could take a worst shape afterwards, hence proper check should be there as to stop
it at such an initial stage and from taking a worst shape afterwards.

2 The Act should be made gender neutralized as to give equality to all .As this grave injustice is
even against men. Men are also sexually harassed at workplace hence they also need due care
and Equality before law as Section 14 of Indian constitution provides for is also violated by not
giving such right. They even have the right of equal protection under law, even though state can
make special provisions for women and children under Article15 clause 3. But still if any
injustice is taking place against both genders so the law if made, should be gender neutralized.

3 There should be awareness camps organized by government and organizations to educate


women about their rights and about everything from filing of case till remedies in order to give
them confidence so that they can raise their voice. They should be properly made and should go
to distant villages as this would not only stop sexual harassment of women at workplace but also
encourage participation of women in work as they will have a sense of freedom and safety while
they work. This would indirectly increase women participation at work places.

4 There should be more legal professionals involved in the internal complaint committee as to
assure they have knowledge to decide the case in the right manner. If legal professionals are
included in the committee it gives the victim an assurance that she is in safe hands, hence to
increase people faith towards law and executive it is necessary to have proper executive body
while implementing laws made by the legislature.

5 The compensation should not be according to the salary of the accused but should rather be on
the principal of being just and fair as according to how much it actually should have been and not
according to the convenience of the accused.
6 Punishment to the accused should be enhanced as the punishment under the statute is not
sufficient it should be increased and more stringent punishment should be awarded. Punishment
discourages a man to commit further wrong. Hence, stricter penalization of fines along with
putting the person behind bars should be included. As it would increase the fear of law in the
mind of the wrong doer.

7 There should be free talk as to the matter as it will help in solving the problem up to a greater
extend as it will form better relations between employer and employee to refer to the problems
faced by them in usual course of business. Seminars, discussions and meetings should be
frequently held. As it give confidence to the employees to bring any problem in front of the
employer.

8 Sexual harassment awareness training should be there in every organization as to educate them
via workshops, seminars, lectures and real life examples they should be taught how to react and
where to go in case of any harassment done to them.

9 News television only made it worse. The case became a subject of debate, in which some
started to look for inconsistencies in her account. Every “panel discussion” added to her agony.
The friend says it took a long time for the woman to be able to write again. “And fighting
through depression and suicidal urges was only possible with the support of close friends, family
and counsellors.” Hence there should be proper check on them also to protect the victim.
Conclusion

There has been a gap of 16 long years between the Vishaka guidelines and the passing of this
legislations. The numbers of case are still increasing at a rapid rate along with which the
numbers of unreported cases are also there. There is least awareness amongst people of
unorganized sectors which have to be looked after. The legislations have a lot of loop holes
which make it tougher to provide justice. There should be proper implementation of law which is
made. As law made and not implemented does not have any value. Hence along with awareness
the implementation should be looked into the matter. There should be more of work by the
executive and judiciary and they should work together in the spirit of co-operation and
understanding to create awareness and to solve the pending cases as to keep up the trust of
people on justice.