The Act is a legislative act in India that seeks to
protect women from sexual harassment at their place of work. It was passed by
the Lok Sabha (the lower house of the Indian Parliament) on 3 September 2012.
It was passed by the Rajya Sabha (the upper house of the Indian Parliament) on
26 February 2013. The Bill got the assent of the President on 23 April 2013.
The Act came into force from 9 December 2013. This statute superseded the
Vishakha Guidelines for prevention of sexual harassment introduced by the
Supreme Court of India. It was reported by the International Labour
Organization that very few Indian employers were compliant to this statute.
Most Indian employers have not implemented the law despite the legal
requirement that any workplace with more than 10 employees need to implement
it. The government has threatened to take stern action against employers who
fail to comply with this law.
The
introductory text of the Act:
An Act to provide protection against sexual harassment
of women at workplace and for the prevention and redressal of complaints of
sexual harassment and for matters connected therewith or incidental thereto.
WHEREAS sexual harassment results in
violation of the fundamental rights of a woman to equality under articles 14
and 15 of the Constitution of India and her right to life and to live with
dignity under article 21 of the Constitution and 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;
AND WHEREAS the protection against
sexual harassment and the right to work with dignity are universally recognized
human rights by international conventions and instruments such as Convention on
the Elimination of all Forms of Discrimination against Women, which has been
ratified on the 25th June, 1993 by the Government of India;
AND WHEREAS it is expedient to make
provisions for giving effect to the said Convention for protection of women
against sexual harassment at workplace
Background and
provisions
According
to the Press Information Bureau of the Government of India: The
Act will ensure that women are protected against sexual harassment at all the
work places, be it in public or private. This will contribute to realization of
their right to gender equality, life and liberty and equality in working
conditions everywhere. The sense of security at the workplace will improve
women's participation in work, resulting in their economic empowerment and
inclusive growth.
The Act uses a definition of sexual harassment which
was laid down by the Supreme Court of India in Vishaka v. State of Rajasthan
(1997). Article 19(1) g of the Indian Constitution affirms the right of all
citizens to be employed in any profession of their choosing or to practice
their own trade or business. Vishaka v. State of Rajasthan established that
actions resulting in a violation of one's rights to ‘Gender Equality’ and ‘Life
and Liberty’ are in fact a violation of the victim’s fundamental right
under Article 19(1) g. The case ruling establishes that sexual harassment
violates a woman's rights in the workplace and is thus not just a matter of
personal injury.
Under the Act, which also covers students in schools
and colleges as well as patients in hospitals, employers and local authorities
will have to set up grievance committees to investigate all complaints.
Employers who fail to comply will be punished with a fine of up to 50,000
rupees.
The legislative progress of the Act has been a lengthy
one. The Bill was first introduced by women and child development minister
Krishna Tirath in 2007 and approved by the Union Cabinet in January 2010. It
was tabled in the Lok Sabha in December 2010 and referred to the Parliamentary
Standing Committee on Human Resources Development. The committee's report was
published on 30 November 2011. In May 2012, the Union Cabinet approved an
amendment to include domestic workers. The amended Bill was finally passed by the
Lok Sabha on 3 September 2012. The Bill was passed by the Rajya Sabha (the
upper house of the Indian Parliament) on 26 February 2013. It received the
assent of the President of India and was published in the Gazette of India,
Extraordinary, Part-II, Section-1, dated 23 April 2013 as Act No. 14 of 2013.
Major
Features:
·
The Act defines sexual harassment at the
work place and creates a mechanism for redressal of complaints. It also
provides safeguards against false or malicious charges.
·
The Act also covers concepts of 'quid pro
quo harassment' and 'hostile work environment' as forms of sexual harassment if
it occurs in connection with an act or behavior of sexual harassment.
·
The definition of "aggrieved
woman", who will get protection under the Act is extremely wide to cover
all women, irrespective of her age or employment status, whether in the organized
or unorganized sectors, public or private and covers clients, customers and
domestic workers as well.
·
While the "workplace" in the
Vishaka Guidelines is confined to the traditional office set-up where there is
a clear employer-employee relationship, the Act goes much further to include organizations,
department, office, branch unit etc. in the public and private sector,
organized and unorganized, hospitals, nursing homes, educational institutions,
sports institutes, stadiums, sports complex and any place visited by the
employee during the course of employment including the transportation. Even
non-traditional workplaces which involve tele-commuting will get covered under
this law.
·
The Committee is required to complete the
inquiry within a time period of 90 days. On completion of the inquiry, the
report will be sent to the employer or the District Officer, as the case may
be, they are mandated to take action on the report within 60 days.
·
Every employer is required to constitute an
Internal Complaints Committee at each office or branch with 10 or more
employees. The District Officer is required to constitute a Local Complaints
Committee at each district, and if required at the block level.
·
The Complaints Committees have the powers
of civil courts for gathering evidence.
·
The Complaints Committees are required to
provide for conciliation before initiating an inquiry, if requested by the
complainant.
·
The inquiry process under the Act should be
confidential and the Act lays down a penalty of Rs 5000 on the person who has
breached confidentiality.
·
The Act requires employers to conduct
education and sensitisation programmes and develop policies against sexual
harassment, among other obligations.
·
Penalties have been prescribed for
employers. Non-compliance with the provisions of the Act shall be punishable
with a fine of up to 50,000. Repeated violations may lead to higher penalties
and cancellation of licence or registration to conduct business.
·
Government can order an officer to inspect
workplace and records related to sexual harassment in any organization.
Penal Code:
Through the Criminal Law (Amendment) Act, 2013, Section
354 was added to the Indian Penal Code that stipulates what consists of a
sexual harassment offence and what the penalties shall be for a man committing
such an offence. Penalties range from one to three years imprisonment and/or a
fine. Additionally, with sexual harassment being a crime, employers are obligated
to report offences.
References:
1.
“The Sexual Harassment Bill undermines the innovative spirit of
Vishaka" – Naina Kapur, Lawyer and Equality Consultant" Bar and Bench. 1 March 2013. Retrieved 2 March 2013.
2.
"The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 Published in The Gazette of India" Press Information Bureau. Retrieved 26 April 2013.
15.
Handbook on the Law of Sexual Harassment at Workplace by Shivangi Prasad and Attreyi Mukherjee, available at amazon.in and bigbookshop.com
16.
"Is your " workplace" covered under the new sexual
harassment law?" Retrieved 4
December 2014.
