In 1997, the Honorable Supreme Court of India, in Vishaka and Others Vs. State of Rajasthan and Others (“Vishaka Judgment”) acknowledged the gravity of sexual harassment of the working women at the workplaces and laid down guidelines making it mandatory for employers to prevent the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. The guidelines issued by the Hon’ble Supreme Court were treated as law declared by the Hon’ble Supreme Court under Article 1412 of the Constitution of India. It was held by the Hon’ble Supreme Court that the guidelines framed by the Supreme Court would be strictly observed in all work places for the prevention and enforcement of the right to gender equality of the working women.
It was observed by various Courts from time to time in the past that the guidelines and norms framed by the Hon’ble Supreme Court in Vishaka Judgment have not been followed in workplaces strictly.
The increasing work participation rate of women made it imperative for enacting a comprehensive legislation focusing on prevention of sexual harassment as well as providing a redressal mechanism.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 & Rules made therein
In 2013, after a span of 16 years, India finally enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the ‘Act’) for prevention of sexual harassment against women at the workplaces. The Central Government vide notification SO 3606 (E) appointed 9 December 2013 as the date on which the provisions of the Act came into force and on the same day, the Central Government made the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”).
Objectives of the Act
The Act is enacted by the Indian Parliament to provide protection against sexual harassment of women at workplace and prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. Sexual harassment is termed as a violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and right to life and to live with dignity under Article 21 of the Constitution of India. Sexual harassment is also considered a violation of a right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.
The Act has adopted the definition of ‘sexual harassment’ from Vishaka Judgment and the term sexual harassment includes any unwelcome acts or behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
In, Apparel Export Promotion Council Vs. A.K. Chopra, the Honorable Supreme Court while deciding an issue whether the act of a superior officer (wherein such superior officer tried to molest his junior woman employee) would amount to sexual harassment, the Court relied on the definition of the term ‘sexual harassment’ laid down by the Supreme Court in the Vishakha Judgment (which is similar to the definition of the Sexual Harassment provided in the Act) held that “the act of the respondent was unbecoming of good conduct and behavior expected from a superior officer and undoubtedly amounted to sexual harassment…”.
Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any workplace. This section further provides the circumstances which if present or connected with any act or behaviour of sexual harassment may amount to sexual harassment such as implied or expressed promise to preferential treatment or implied or explicit threat of detrimental treatment in her employment, implied or explicit threat about her present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, humiliating treatment likely to affect health or safety of a woman.
Complaints Committee & Complaint Procedure
Internal Complaints Committee:
The Act makes it mandatory for every employer to constitute an internal complaints committee (“ICC”) which entertains the complaints made by any aggrieved women. The members of the ICC are to be nominated by the employer and ICC should consist of i) a Presiding Officer, ii) not less than two members from amongst employees preferably committed to the cause or women or who have had experience in social work or have legal knowledge and iii) one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. In order to ensure participation of women employees in the ICC proceedings, the Act requires that at least one-half of the members of ICC nominated by employer are women.
Local Complaints Committee:
Provisions are provided under the Act to form Local Complaints Committee (LCC) for every district for receiving complaints of sexual harassment from establishments where the ICC has not been formed due to having less than 10 workers or if the complaint is against the employer himself.
the Act stipulates that aggrieved woman can make written complaint of sexual harassment at workplace to the ICC or to the LCC (in case a complaint is against the employer), within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident. If the aggrieved woman is unable to make complaint in writing, reasonable assistance shall be rendered by the presiding officer or any member of the ICC (or in case the aggrieved woman is unable to make complaint in writing to the LCC, the reasonable assistance shall be rendered by the Chairperson or any member of the LCC) for making the complaint in writing.
As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 , in case the aggrieved woman is unable to make a complaint on account of her physical incapacity, a complaint may be filed inter alia by her relative or friend or her co-worker or an officer of the National Commission for Woman or State Women’s Commission or any person who has knowledge of the incident, with the written consent of the aggrieved woman.