Sixteen long years after the Supreme Court of India recognized sexual harassment of women as a violation of human rights and laid down guidelines for its prevention and redressal at the workplace, the Government of India on 9th December, 2013 brought into effect The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013” (‘Act’) making it the duty of every employer to provide a safe work environment for women.
As India treads the path of modernization, the number of women joining the workforce has increased steadily. In the industrial sector alone, women workforce has almost doubled in the last five years and the average percentage of economically-active women in the manufacturing sector is said to have grown by 35%, twice the rate for men, according to some statistics.
A survey conducted by an international non-governmental organization showed that as many as 17 percent of working women in India had experienced sexual harassment at the workplace at one time or the other. The Act was thus the urgent need of the hour, bringing within its ambit women who may be aggrieved of sexual harassmentat workplace whether employed or not both the organized and unorganized sectors. It also aims to create safe environment for women employed in adwelling place or a house. The new law, which is based on the landmark Supreme Court judgment, Vishakha vs. State of Rajasthan [1997 JT (7) 384], mandates every employer to create a safe work environment and ensure that thissafe environment covers the interaction that a woman has with persons in the workplace. It duty binds the employer to formulate and disseminate an internal policy, organize workshops and awareness programmes for employees; provide assistance to the woman if she chooses to file a criminal complaint; initiate criminal action against the perpetrator and treat sexual harassment as misconduct under the service rules requiring strict action.
The Act defines “sexual harassment” to include any one or more of the following unwelcome acts or behaviour (whether directly or by implication):
It also lays out the followingcircumstances that may amount to sexual harassmentthough there may not be any sexual overtones :
Under the new legislation, an employer with 10 or more employees has to mandatorily constitute a four member “Internal Complaints Committee” [‘ICC”] that is headed by a senior woman employee. Half of ICC members must be women and in order to prevent the possibility of any undue pressure from seniors within the organization, the ICC must involve a third party, either from a non-governmental organization or a person familiar with the issue of sexual harassment.
Domestic workers as well as employees in organizations with less than 10 staff members will be able to access a Local Complaints Committee [“LCC”] set up by the appropriate government under the new law. An aggrieved employee can file a complaint before an ICC within three months from the date of the occurrence of the incident, Upon receipt of the complaint the ICC must hold an inquiry and dispose off the matter within 90 days. While the inquiry is pending, the ICC may recommend among interim measures the transfer of either the aggrieved woman or the respondent; or grant leave to the aggrieved woman for a period of three months.
Once the inquiry is complete and the ICC has submitted the employer with the report of its findings, the employer must take action against the concerned party.
An employer, who fails to constitute an ICC or contravenes or attempts or abets to contravene any of the provisions of the Act, will be liable to be punished with a fine of up to Rs. 50,000. If he has been previously convicted for contravening provisions of the Act and is convicted once again of the offence, the employer can be penalized with twice the punishment which may have been imposed at the first convictionor have his licence or registration cancelled. If there is a higher punishment prescribed by another statute, then the court will take due cognizance of the same while meting out punishment.
Companies need to take the following steps in order to be compliant with the new Act:
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