As more and more women began to enter the workforce in an emerging Indian economy, the malady of sexual harassment began to manifest itself in a variety of fields. From the police and the army to multinational corporations and sports, it is regrettable that no field of human endeavor has been left unaffected by this tragedy. A legislative solution that could protect the rights of these working women was urgently required. As has been the case with many laws, it was judicial activism that brought this one to the attention of the public for the first time.
What Do you Understand by Sexual Harassment in the workplace?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 was passed to combat sexual harassment of women at work. It defined sexual harassment, outlined the procedures for filing a complaint and conducting an investigation, as well as the actions that would be taken.
It widened the scope of the Vishaka guidelines, which had already been established. The Supreme Court of India issued a judgment in 1997 that established the Vishaka guidelines. This was in the context of a case brought by women’s rights organizations, one of which was Vishaka.
They had filed a public interest lawsuit against the alleged gang rape of Bhanwari Devi, a social worker from Rajasthan, based on her alleged victimization. In 1992, she had prevented the marriage of a one-year-old girl, which had resulted in the alleged gang rape of the girl as a form of retaliation.
Judicial activism reached its zenith in the case of Vishakha v. State of Rajasthan, which dealt with sexual harassment on the job (Vishakha).
Several factors contributed to the judgment’s historic status: the Supreme Court acknowledged and relied to a significant extent on international treaties that had not been translated into Indian municipal law; the Supreme Court provided the first authoritative definition of “sexual harassment” in India; and, when confronted with a statutory vacuum, the Court used its ingenuity and proposed the route of judicial legislation.
Guidelines as well as the law
Among the three key obligations imposed on institutions by the Visakha guidelines, which were legally binding, were the definition of sexual harassment as well as prevention, redress, and restitution. A Complaints Committee, which would investigate allegations of sexual harassment against women in the workplace, was ordered to be established by the Supreme Court. These guidelines were widened as a result of the 2013 Act.
Each office or branch with ten or more employees was required to have an Internal Complaints Committee (ICC), which was mandated by the law to be formed by every employer.
It defined various aspects of sexual harassment, including the aggrieved victim, who could be a woman “of any age, whether employed or not,” who “alleges to have been subjected to any act of sexual harassment.” It also established procedures for dealing with sexual harassment. This meant that the Act protected the rights of all women who worked or visited any workplace, in any capacity, during their employment.
Sexual harassment is defined as follows:
According to the 2013 law, sexual harassment includes “any one or more” of the “unwelcome acts or behavior” listed below that is committed either directly or indirectly, and includes:
* Physical contact as well as advancements
* A demand or request for sexual favors
* Remarks with a sexual connotation
* Displaying pornographic material
* Any other unwelcome physical, verbal, or nonverbal conduct of a sexual nature, whether it is physical, verbal, or nonverbal.
An updated version of the Handbook on Sexual Harassment of Women at Workplace, published by the Ministry of Women and Child Development, provides more specific examples of behavior that constitutes sexual harassment at work.
The following are prohibited:
* Sexually suggestive or innuendos; serious or repeated offensive statements; inappropriate questions or remarks about another person’s sexual life.
* Showing off sexist or offensive images, posters, MMS, SMS, WhatsApp, or emails is prohibited.
* Threats, intimidation, and blackmail in the context of sexual favors; as well as threats, intimidation, and retaliation against an employee who speaks out about these issues.
* Flirting is a term used to describe unwelcome social invitations that have sexual overtones.
As stated in the Handbook, “unwelcome behavior” is experienced when a victim feels bad or powerless; it can result in feelings of anger, sadness, or low self-esteem. Unwelcome behavior, according to the document, is defined as “illegal, demeaning, invading, one-sided, and power-based.”
Aside from that, the Act specifies five situations that constitute sexual harassment: an implied or explicit promise of preferential treatment in her employment; an implied or explicit threat of detrimental treatment; an implied or explicit threat about her current or future employment status; interference with her work or the creation of an offensive or hostile work environment; and humiliating treatment that is likely to endanger her health or safety.
Complaints must be filed following established procedures.
Technically, the aggrieved victim does not have to file a complaint with the ICC for the ICC to take action.
According to the Act, she “may” do so — and if she is unable to do so, any member of the ICC “shall” provide “all reasonable assistance” to her for her to file a written complaint. The legal heir of the deceased woman may file a complaint on her behalf if the woman is unable to do so due to “physical or mental incapacity, death, or otherwise.”
Specifically, the complaint must be filed within three months of the date of the incident, as stipulated by the Act.
The International Criminal Court (ICC) can, however, “extend the time limit” if “it is satisfied that the circumstances were such that the woman was unable to file a complaint within the specified period.” A woman who has been wronged by a respondent may “request” that the International Criminal Court (ICC) “take steps to settle the matter between her and the respondent through conciliation” before the inquiry, with the condition that “no financial settlement shall be made as a basis of conciliation.”
The ICC has two options:
It can either forward the victim’s complaint to the police or it can initiate an investigation that must be completed in 90 days.
The International Criminal Court (ICC) has powers that are similar to those of a civil court in terms of summoning and interrogating anyone under oath, as well as requiring the discovery and production of documents. When the investigation is completed, the ICC is required to provide the employer with a report of its findings within 10 days of the conclusion of the investigation.
Both parties are given access to the report as well as the findings.
According to the Act, the identity of the woman, respondent, witness, and any information on the inquiry, recommendation, and action taken should not be made public unless expressly authorized by the court.
Following the publication of the ICC report
ICC recommends that, if the allegations of sexual harassment are proven, the employer take action “in accordance with the provisions of the service rules” of the company in which the harassment occurred. These may differ from one company to the next. It also recommends that the company deduct “amounts as it deems appropriate” from the salary of the person who has been found guilty of the crime.
Compensation is determined based on five factors: the suffering and emotional distress caused to the woman, the loss of a career opportunity, her medical expenses, the respondent’s income, and financial situation, and the feasibility of making a payment to the woman in question.
Following the recommendations, either the aggrieved woman or the respondent may file an appeal in court within 90 days of the recommendations being made. Section 14 of the Act deals with the punishment for filing false or malicious complaints as well as for submitting fabricated evidence.
A woman or a person who has filed a complaint may be subjected to disciplinary action by her employer, which the ICC “may recommend” to her employer in accordance with “the provisions of the service rules.”
The Act, on the other hand, makes it clear that action will not be taken if a complainant is unable to “substantiate the complaint or provide adequate proof” as required by the Act.
- The Posh Act 2013
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