It took the Indian Parliament 16 years to make a law which deals with sexual harassment at workplace, after the Supreme Court’s directions in the landmark case of Vishaka and others v. State of Rajasthan in 1997 that had mandated guidelines to be followed by employers to redress issues relating to workplace sexual harassment. In December 2013, the Prevention of Workplace Sexual Harassment Act (“Act”) came in to effect, along with its rules. While the Act does intend to provide women with a right to a safe working environment, in little over 2 years of its notification, it has thrown up so many challenges and questions that one does wonder if the ground reality of corporate workplaces in India was even considered. Various factors that are intrinsic to large – scale corporates, such as having multiple locations across the country, a workforce that keeps getting younger and in many cases, lacks professional experience expected at the workplace and absence of any collective dialogue on gender related issues amongst the workforce including at management levels, have led to significant lapses being observed in the implementation of the letter and spirit of the Act at the ground level. We will be examining some of these issues here today.

Section 2 (a) of the Act provides an exhaustive definition of an ‘aggrieved woman’, and includes any woman, whether employed or not, who is subject to sexual harassment at a workplace. The definition of an ’employee’ is equally inclusive, and means any person employed, whether directly or not, or working on a voluntary basis, with the employer. The implication of these definitions would be that any woman, including a third party woman employee visiting the premises of a company can raise a complaint of sexual harassment against an ’employee’ of such company. Under the Act, the company is obligated to investigate such a complaint even though it is brought by a third party woman employee with whom the company has no privity of contract. There are other scenarios which can be equally challenging for the employer company, for example, there is no guidance for employers in situations wherein a ‘workplace’ belongs to 2 employer entities, that is to say, a woman employee of X employer is harassed at the location which is managed and controlled by employer Y, by the respondent who is a contractual worker, engaged by employer Z. While the Act does say that the inquiry has to be done by the ICC of the employer which receives the complaint from the aggrieved woman, however it is not cognizant of the fact that the employer needs to have direct relationship with the respondent to be able to enforce action which would be recommended by the ICC against such respondent. For instance, in our example, even if the incident in question takes place at premises of employer Y, it would not be very successful in taking action against a contract worker employed by employer Z. Also, in scenarios wherein contract labour is involved, allowing the principal employer to call upon the respondent – contract worker during investigation proceedings directly, and initiating disciplinary action against him, without involving the contractor, would raise a red flag of another nature under the contract labour act. It is hence desirable for the Act to clarify its position on this point as a complaint needs to be dealt with swiftly, instead of being lost in the organizational quagmire of manpower arrangements, typical of most corporates in India.

The Act poses certain impractical and unreasonable provisions related to conducting inquiry proceedings as well. As per the Act, before starting the inquiry, the entire complaint, including supporting documents, has to be given to the respondent. This would effectively disclose names of the witnesses to the respondent who may, depending upon his seniority, try to influence or intimidate them. Unlike court proceedings, it should be appreciated that workplace harassment inquiry proceedings take place in an environment where all witnesses share the workplace with the complainant or respondent and habitually interact with each other. In order to hold a free and fair inquiry and not discourage employees from coming forward as witnesses, maintaining confidentiality of witness names is very important as prior disclosure of their identity may be perceived as detrimental to the interest of the aggrieved woman.

Another perplexing aspect of the Act is the proviso to Section 11, which directs the ICC to make its findings available to the complainant and respondent, to enable them to make a representation. At this stage, the inquiry is almost complete and the ICC has reached its position, which is why it is not practical for the findings to be shared with the relevant parties, prior to the same being shared with the employer for necessary action. This way, the inquiry proceedings are likely to never complete, if at every stage, the parties may opt to provide representations.

A few other provisions of the Act show that the drafters were either not aware or chose to ignore some of the basic organizational challenges faced by corporates in India. Women still constitute 28% of the labour workforce in India, and only 5% of working women make it to leadership positions. In such a scenario, it is difficult for corporate to set up ICC’s in every workplace that employs more than 10 employees, as each such ICC needs a senior level woman employee to be the Presiding Officer. If the Presiding Officeris of a level junior to the respondent, it is inevitable that the inquiry will be impacted by the hierarchy of the organization. In the spirit of the intent of the law, companies with multiple locations should have the right to handle all complaints at a central level so that the inquiry process does not get impeded due to insufficient number of senior women employees.

Another pertinent issue is the practice of requiring employees with existing roles within the organization to also handle sexual harassment inquiries. In our view, it is not feasible to expect ICC members who are fulfilling other responsibilities within the organization, to be responsible and allocate time for their obligations under the Act. This in many cases would simply be termed as additional workload, which would have a cascading effect on the quality of the inquiries carried by the ICC members. Clearly, most corporates should understand this issue on their own, and try and allocate specialized resources for this activity. While highlighting all challenges under the Act is not possible, we have described certain provisions which leave scope for improvement in light of the intricacies of a typical corporate set-up. Having said that, even in its present form, the mandatory requirements imposed by this law are already beginning to make women feel safer at their workplace or raise complaints and have enabled companies to work towards achieving professional and equitable workplace environment across India.