Prevention and Prohibition of Sexual Harassment of Women at Workplace and Criminal prosecution for Sexual Harassment

Rohit Naagpal, M.Com. LL.B. & Rahul Chopra M/S Kaizen Lex Advisors Attorneys-at-Law www.kaizenlex.com

HISTORICAL BACKGROUND
UN’s activity and international cooperation in the field of human rights has resulted in covenants, conventions and several recommendations incorporating the principles and norms of human rights. One of such conventions provides for eliminating discrimination against women. India is a party and a signatory to this Convention on Elimination of All Forms of Discrimination against Women (CEDAW). Article 11 of the CEDAW requires the State Parties to take appropriate measures to eliminate discrimination against women in the field of employment. The idea is that the equality in employment can be seriously impaired if women are subjected to gender specific violence, such as sexual harassment at the workplace. The Supreme Court of India issued certain guidelines in a landmark judgment of Vishakha v. State of Rajasthan (1997) 6 SCC 241 and has also reaffirmed that sexual harassment is a form of discrimination against women and violates the Constitutional right to equality. These guidelines are now replaced by the Sexual Harassment of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013 which has come into effect on 22nd April 2013.

AIM

The Act has been passed with an aim to provide protection against any kind off Sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith and incidental thereto.

To Safeguard Women from sexual violence and protect their fundamental right to equality under Article 14 & 15 of the Constitution and right to life and to live with dignity under Article 21 of the Constitution and the right to practice any profession or to carry on any occupation, trade or business which includes a right to safe environment free from sexual harassment.

What is Sexual Harassment ? Section 2 (n) of the Act defines ;Sexual Harassment means any one or more of the following unwelcome acts or behaviour whether directly or impliedly : I. Any unwanted Physical contact and advances; or

II. Any demand or request for sexual favours; or

III. making sexually coloured remarks; or
IV. showing pornography; or V. any other unwelcome physical, verbal or non-verbal conduct of sexual

nature.

Physical Contact & Advances

SEXUAL HARASSMENT Section 2(n)

Unwelcome Physical, Verbal or Non-verbal Conduct

Request for sexual favours

Showing Pornography

Sexually Coloured Remarks

NOTE : WHETHER DIRECTLY OR BY IMPLICATION

In Relation to Dwelling House

AGGRIEVED WOMAN Section 2 (a) (i) & (ii)

In Relation to Workplace

Woman of any age, employed in such a dwelling place or house

Employed woman of any age

Unemployed woman of any age

Who alleges to have been subjected to any act of sexual harassment by the respondent

educati onal

indust rial

Health service

WORKPLACE Section 2(o)

Establishm ent

Enterpris e

Institu tion

Any private organization, venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on

Unorganized sector
Hospitals or Nursing homes profession al

Undertaking

Owned, Controlled wholly or substantially financed directly or indirectly by the govt. or local authority or corporation or co-operative society

Department

Organisation

vocation al

commercial

Financial activities including

productio n

During the course of employment place visited by the employee transpor tation

Residential or Non- residential

sale & distribu tion

supply

a dwelling place or a house

Sports institute, Stadium, Sports complex, Games venue for training sports and other activities relating thereto

Promise

Implied or Explicit

Threat

Preferential treatment in her employment

WORKPLACE HARASSMENT Section 3

Detrimental treatment at workplace

Humiliating treatment affecting her health or safety

Hostile work environment

Present or future employment status

QUID PRO QUO ENVIRONMENT

Promise to raise salary

Threat to fire someone

Employer seeks sexual favours in return for

Derogatory terms with sexual connotations

Sexist remarks

Posting pictures of pornography

HOSTILE WORKING ENVIRONMENT

Obscene graffiti

Intimidating work environment

Allowing frequent physical contact even when not sexual

Dirty jokes at workplace where all employees can hear them

One who benefits from the employment of a domestic worker

EMPLOYER
Section 2 (g)

management

Person discharging contractual obligations with respect to his employees

Head

Person, Board or Committee
Supervision & control

department institution undertaking organisation establishment enterprise

Office or branch

DUTY OF THE EMPLOYER IN WORKPLACES

In Vishakha v. State of Rajasthan, the Supreme Court directed that it shall be the duty of every employer or other significant

persons in workplaces or other institutions to prevent or deter
the commission of acts of sexual harassment and to devise a procedure for the settlement or prosecution of acts of sexual harassment by taking effective steps;

EMPLOYER’S DUTIES UNDER SECTION 19 OF THE ACT
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. provide a safe working environment at the workplace including safety from the persons coming into contact at the workplace. display at any conspicuous place in the workplace, the penal consequences of sexual harassments. sensitise the employees with the provisions of the Act by organizing workshops and awareness programmes and orientation programmers for the members of the internal committee. facilitate the Internal Committee or the Local Committee , for dealing with the complaint and conducting an inquiry. provide assistance in securing attendance of respondent and witness before the committee. make available such information to the Internal Committee as may be required with regard to the complaint. provide assistance to the aggrieved woman. cause to initiate action under Indian Penal Code,1860 or any other law for the time being in force against the perpetrator cause to initiate action against the perpetrator where the perpetrator is not an employee, in the workplace at which the incident took place. monitor timely submission of reports by the Internal Committee.

DISTRICT OFFICER’S DUTIES UNDER SECTION 20 OF THE ACT
There are two main obligations of a District officer and they areI. He shall monitor the timely submission of reports furnished by the Local Committee. II. He shall also take measures as may be necessary for engaging non-governmental organizations for creation of awareness on sexual harassment and the rights of the women.

ADDITIONAL DUTY OF AN EMPLOYER UNDER SECTION 22 OF THE ACT TO INCLUDE INFORMATION IN ANNUAL REPORT
I. The employer of any organisation is under a statutory obligation to prepare an annual report and include in that report, the total number of cases/complaints of sexual harassment filed with him and how they have been disposed of under the scheme of the Act. II. In case no such annual report was required to be prepared, the employer shall intimate the number of cases/complaints , to the District Officer.

EMPLOYER

COMPLAINTS COMMITTEE

DISTRICT OFFICER

Internal Complaints Committee

Local Complaints Committee

Presiding officer (Woman)

½ of total members (Women)

At district level Chairperson (Woman)

one member from nongovt. organisations or associations or person committed to the cause of women

Not less than two members from employees committed to cause of women

one member working in block, taluka, tehsil or municipality (Woman)

two members one is woman amongst nongovernmental organisations, associations and persons committed to cause of women

COMPLAINT MECHANISM
Complaint of Sexual Harassment u/s 9 of the Act
• Complaint of sexual harassment at workplace must be made by an aggrieved woman and the same should be in writing and be specific against the harasser; Provided where an aggrieved woman is not capable of making a complaint in writing, in such a case, the presiding officer or the chairperson, as the case may be, provide assistance to the woman for making the complaint. • • Complaint should be made to the Internal Committee, if so constituted or the Local Committee if not so constituted. It should be made within three months from the date of incident or within three months from the date of last incident in case of series of incidents. Provided also that the Internal Committee or the Local Committee may extend the time limit not exceeding three months, if it is satisfied that there existed such circumstances as would prevent a woman from filing a complaint within the said period. • In case if the aggrieved woman is not capable of making a complaint on account of physical incapacity or death or otherwise, her legal heir may make a complaint.

CONCILIATION
under section 10 of the Act
• The Internal Committee or the Local Committee before making an inquiry in the following section, may, at the specific request of the aggrieved woman take steps to make settlement between her and the respondent through conciliation. No monetary settlement be made for the purpose of conciliation. If a settlement is arrived at, the Internal or the Local Committee, as the case may be, record such settlement and forward with recommendation to the employer or the District Officer to take action as specified. The Committee shall provide the copies of the settlement so arrived and recorded to the aggrieved woman and the respondent. No further inquiry is required if a settlement is arrived under this section.

• •

• •

INQUIRY INTO COMPLAINT
under section 11 of the Act
• If the Internal or the Local Committee, fails to make effective conciliation under section 10 of the act, it shall, where the respondent is an employee, in accordance with the provisions of the service rules, make an inquiry into the complaint and if no such service rules exist, in such manner as may be prescribed. • Where both the parties are employees, they shall be given a fair opportunity of being

heard and a copy of the findings made during the course of inquiry be submitted to
both the parties enabling them to make representations against such findings before the Committee. • If any term or condition of the settlement arrived at under sub-section (2) of section 10 is not complied with by the respondent, then in such a case, the Internal or the Local Committee shall make an inquiry into the complaint and forward it to the police. • The inquiry under this section shall be completed within a period of 90 days.

Inquiry u/s 11 the Act into the Complaint by a Domestic Worker .

As per section 2 (b)(ii)(e) a domestic worker is any woman employed to do the household work in any household for remuneration, whether in cash or in kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer;

In case of a domestic worker, if a prima facie case exist, the Local Committee shall,
forward the complaint to the police, within a period of 7 days for registering a complaint under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said code where applicable.

Powers of the Committee
The Internal or the Local Committee, as the case may be, has the same powers as vested in a civil court under the Civil Procedure Code,1908 while trying a suit.

POWERS OF COMMITTEE
u/s 11(3)
Summoning & enforcing attendance of any person

examination of a person on oath

requiring production of documents

requiring the discovery of documents

COMPLETION OF INQUIRY / INQUIRY REPORT U/s 13 of the Act

Once the inquiry is completed, the Internal or the Local Committee, as the case may be, provide a report of its findings to the employer or the District Officer within 10 days from the date of completion of inquiry. • If the Committee arrives at a conclusion that the allegations against the respondent are false or have not been proved, it shall recommend the employer and the District Officer not to take any action. • If the Committee concludes that the allegation against the respondent has been proved, it shall recommend the employer or the District Officer, as the case may beI. To take action against sexual harassment under the service rules and in absence of service rules, in such manner, as may be prescribed; II. To deduct from the salary of or wages of the respondent such sums as may be appropriate to be paid to aggrieved woman or to her legal heirs. • The employer or the District Officer shall act upon the recommendations within 60 days of its receipt by him.

MALICIOUS/FALSE COMPLAINT
u/s 14

Complainant/ witness etc. alleging falsely be punished acc. to the services rules

An enquiry to be conducted before establishing malicious intent Mere inability to substantiate a complaint will attract no liability

FACTORS DETERMINING COMPENSATION
 Mental trauma, pain, suffering and emotional distress caused to the

aggrieved woman;
 Any Loss in career opportunity due to the incident of sexual harassment;  Any Medical expenses incurred by the victim of physical and mental abuse;  The income and the financial status of the respondent ;  Feasibility of such payment in lump sum or in installments.

PROHIBITION OF PUBLICATION AND DISCLOSURE OF IDENTITY
under section 16

The Act prohibits publication of the contents of complaint, identity, addresses of
the aggrieved woman, respondent, witnesses and any information relating to conciliation or inquiry proceedings or an action taken by the employer or the District Officer.

Information regarding justice secured to any victim of sexual harassment may be disseminated without disclosing the name, address, identity or any other particulars relating to that victim.

NON-COMPLIANCE BY THE EMPLOYER U/S 26 OF THE ACT.

 If an employer fails to comply with the provisions of this act, he shall be punishable with fine which may extend to 50000/- (Fifty Thousand Rupees Only).  If an employer, recommits an offence punishable under this Act or is convicted of

the same offence again, then he shall be liable to the twice the punishment, which
might have been imposed on his first conviction and also cancellation of his licence or the registration as may be required to carry on his business or activity.

Power of Government to make Rules u/s 22 of the Act

The Central Government is empowered to make rules for carrying out the provisions of this Act by notifying in the Official Gazette which shall be notified soon

CONCLUSION
 This Act has been formulated for the prevention of any kind of Sexual Harassment , with noble aim of detection and punishing of the same at the very first instance and same if effectively implemented will help in reducing the acts sexual violence/ exploitation of women at the workplace by imposing deterrent effects on the perpetrators by imbibing penal provisions.

 The enactment also provides for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment at workplaces.
______________________

Besides the civil remedy in case of Sexual Harassment of women discussed all above, following are the other penal provisions for perpetrators of Harassment.
• The Indecent Representation of Women (Prohibition) Act (1987).
It is an Act to prohibit indecent representation of women through advertisements or
in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto. Main purpose of the legislation and also the wrong that it is intended to prevent and punish. Section 3 specifically prohibits publication of any sort of advertisement which contains indecent representation of women as for instance; pornographic image or video, etc. and thereby, harasses women. Section 4 prohibits publication or sending by post of books, pamphlets, etc. containing indecent representation of women.

Section 6 on the other hand imputes criminal liability on the harasser by making it punishable

with imprisonment which may extend to two years and with fine which may extend to two
thousand rupees on the first conviction and in the event of a second or subsequent conviction with imprisonment for term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to

one

lakh

rupees.

THE INDIAN PENAL CODE, 1860
• Sections 354, 376 & 509 are the penal provisions relating to crime against women
• Section 354 of the Act says that whoever assaults or uses a criminal force to any woman with an intention of outraging her modesty or with a prior knowledge that his act is certain to outrage the modesty of the woman commits an offence under this section and is liable to be

punished with an imprisonment of either description for a term which may extend to two
years, or with fine, or with both. • Section 376 provides punishment for rape of a woman and the punishment is imprisonment for a term which shall not be less than 7 years and may extend for life or for a term which

may extend for 10 years and shall also be liable to fine unless the woman raped is his own
wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

Section 509. Word, gesture or act intended to insult the modesty of a woman.--Whoever,

intending to insult the modesty of any woman, utters any word, makes any sound or gesture,
or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or

with both.

Amendments in Indian Penal Code
Recent Amendment has recognized very important acts as offences and has incorporated them into the Indian Penal Code,1860. These are :1. Section 326A is a new section which has been added into the IPC and is aimed at punishing the offence of acid throwing or acid attack. It is a gender neutral offence and has been made cognizable and non-bailable and is triable by the Court of Session. This section requires that there should be a voluntary causing of grievous hurt by use of acid, etc. Punishment- Imprisonment for not less than 10 years but which may extend to imprisonment for life and fine to be paid to the victim. 2. Section 326B also added which says that if a person voluntarily throws or attempts to throw acid, then an offence under this section is committed and is punished with an imprisonment

for 5 years and which may extend to 7 years and with fine. This offence is also cognizable,
non-bailable and triable by the Court of Session.

2.

Section 354A a new section is added as it defines and punishes acts of sexual harassment

is aimed at the prevention and prohibition of sexual harassment of women.
Following are the ingredients of offence of sexual harassment under this section : I. II. III. IV. V. physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favours; or making sexually coloured remarks; or forcibly showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Punishment- Imprisonment which may extend to 3 years or with fine or with both in case of sexual harassment of nature of unwelcome physical contact and advances or demand or request for sexual favours, showing pornography or; Imprisonment which may extend to 1 year or with fine or with both in case of sexual harassment of the nature of making sexual colored remarks. This offence is cognizable but bailable unlike under section 354 of the IPC,1860.

4.

Section 354B punishes an act which is committed with an intent to disrobe a woman. Assaults or use of criminal force to any woman or abetment of such act with the intention of disrobing or compelling her to be naked is made punishable with an imprisonment of not less than 3 years

but which may extend to 7 years and with fine. The offence under this clause is again cognizable
but non-bailable. 5. Section 354C defines and punishes Voyeurism. It says watching or capturing a woman in “private act”, which includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim's genitals, buttocks or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public amounts to voyeurism. Punishment- ( I ) In case of first conviction, imprisonment of not less than 1 year, but which may extend to 3 years, and with fine. The Offence is bailable. ( ii ) In case of second or subsequent convictions, imprisonment of not less than 3 years, but which may extend to 7 years, and with fine. The offence is non-bailable.

6.

Section 354D defines the offence of stalking:To follow a woman and contact, or attempt to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or monitor the use by a woman of the internet, email or any other form of electronic communication. There are exceptions to this section which include such act being in course of preventing or detecting a crime authorised by State or in

compliance of certain law or was reasonable and justified.
Punishment- ( I ) In case of first conviction, imprisonment up to 3 years and with fine. The offence is cognizable but bailable. ( ii ) In case of second or subsequent convictions, imprisonment up to 5 years or with fine. The offence is cognizable but non-bailable.

RAPE (SECTION 375 ) NOW HAS A WIDER DEFINATION AND INCLUDE SEXUAL ASSAULT.
Changes in the definition of rape under section 375 of the IPC,1860: The word rape has been replaced with sexual assault in Section 375.

 Now penetration other than penile penetration is an offence under this section.  The definition of sexual assault is gender neutral in some aspect, with acts like

penetration of penis, or any object or any part of body to any extent, into the vagina,
mouth, urethra or anus of another person or making another person do so, apply of mouth or touching private parts constitutes the offence of sexual assault.

 penetration now means penetration to any extent, and lack of physical resistance is immaterial for constituting this offence.

 A new section 376A has been added which states that if a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may

extend to imprisonment for life, which shall mean the remainder of that person’s
natural life, or with death”.

 In gang rape cases, persons involved regardless of their gender shall be punished

with rigorous imprisonment for a term which shall not be less than twenty years,
but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim.  The age of consent in India has been increased to 18 years, which means any sexual activity irrespective of presence of consent with a woman below the age of 18 will constitute statutory rape.

 Only in certain aggravated situations, punishment will be imprisonment of not less than

seven years but which may extend to imprisonment for life and shall also be liable to
fine else, in aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Thanks from www.kaizenlex.com
Rohit Naagpal, M.Com , LL.B is a senior associate at the M/s

Kaizen Lex Advisors having an expertise in the matters of
Sexual Harassment, Rape, Matrimony, 498-A IPC, Domestic Violence, etc. he undertakes workshops and training on various corporate issues as well as gender sensitization and

9212786555. rohitnaagpal@gmail.com and info@kaizenlex.com
he can be contacted # 0Rahul Chopra is currently working at the M/s Kaizen Lex Advisors and has a keen interest in the matters relating to violence against women and he has done extensive research in area of Women related laws and its implication on society. He can be contacted at 9999972324 © kaizen Lex Advisors

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