nPrevention and Prohibition
of
Sexual Harassment of Women
at
Workplace and Criminal prosecution for
of
Sexual Harassment of Women
at
Workplace and Criminal prosecution for
nSexual Harassment
nSHARADA AVADHANAM
nDIRECTOR
nAPFSL
n19 12 2013
nGSI LEACTURE
n
nHISTORICAL
BACKGROUND
UN’s activity and international
cooperation in the field of human rights has resulted in covenants, conventions
and several recommendations incorporating the principles and norms of human
rights. One of such conventions provides for eliminating discrimination against
women. India is a party and a signatory to this Convention on Elimination of
All Forms of Discrimination against Women (CEDAW). Article 11 of the CEDAW
requires the State Parties to take appropriate measures to eliminate
discrimination against women in the field of employment. The idea is that the
equality in employment can be seriously impaired if women are subjected to
gender specific violence, such as sexual harassment at the workplace.
The Supreme Court of India issued certain
guidelines in a landmark judgment of Vishakha v. State of
Rajasthan (1997) 6 SCC 241 and has
also reaffirmed that sexual harassment is a form of discrimination against
women and violates the Constitutional right to equality. These guidelines are
now replaced by the Sexual Harassment of Women At Workplace (Prevention,
Prohibition And Redressal) Act, 2013 which has come into effect on 22nd April 2013.
nAIM
The Act has been passed with an aim to
provide protection against any kind off Sexual harassment of women at workplace
and for the prevention and redressal of complaints of sexual harassment and for
matters connected therewith and incidental thereto.
n
nWhat is Sexual Harassment ?
Section 2 (n) of the Act defines ;-
Section 2 (n) of the Act defines ;-
Sexual Harassment means any one or more of the following
unwelcome acts or behaviour whether directly or impliedly :
I. Any unwanted Physical contact and advances; or
II.Any demand or request for sexual favours; or
III.making sexually coloured remarks; or
IV.showing pornography; or
V.any other unwelcome physical, verbal or non-verbal conduct of
sexual nature.
n
NOTE :
WHETHER DIRECTLY OR BY IMPLICATION
n
n
n
n
n
n
nDUTY OF THE
EMPLOYER IN WORKPLACES
In Vishakha v.
State of Rajasthan, the Supreme Court directed that it shall be the duty of
every employer or other significant persons in workplaces or other institutions
to prevent or deter the commission of acts of sexual harassment and to devise a
procedure for the settlement or prosecution of acts of sexual harassment by
taking effective steps;
nEMPLOYER’S
DUTIES UNDER SECTION 19 OF THE ACT
1.provide a safe working
environment at the workplace including safety from the persons coming into
contact at the workplace.
2.display at any conspicuous place in the workplace, the penal
consequences of sexual harassments.
3.sensitise the employees with the provisions of the Act by
organizing workshops and awareness programmes and orientation programmers for
the members of the internal committee.
4.facilitate the Internal Committee or the Local Committee , for
dealing with the complaint and conducting an inquiry.
5.provide assistance in securing attendance of respondent and
witness before the committee.
6.make available such information to the Internal Committee as
may be required with regard to the complaint.
7.provide assistance to the aggrieved woman.
8.cause to initiate action under Indian Penal Code,1860 or any
other law for the time being in force against the perpetrator
9.cause to initiate action against the perpetrator where the
perpetrator is not an employee, in the workplace at which the incident took
place.
10.monitor timely submission of reports by the Internal
Committee.
nDISTRICT
OFFICER’S DUTIES UNDER SECTION 20 OF THE ACT
There are two main obligations of a District officer and they
are-
I.He shall monitor the timely
submission of reports furnished by the Local Committee.
II.He shall also take measures
as may be necessary for engaging non-governmental organizations for creation of
awareness on sexual harassment and the rights of the women.
ADDITIONAL DUTY OF AN EMPLOYER UNDER SECTION
22 OF THE ACT TO INCLUDE INFORMATION IN ANNUAL REPORT
I.The employer of any
organisation is under a statutory obligation to prepare an annual report and
include in that report, the total number of cases/complaints of sexual
harassment filed with him and how they have been disposed of under the scheme
of the Act.
II.In case no such annual
report was required to be prepared, the employer shall intimate the number of
cases/complaints , to the District Officer.
n
n
nCOMPLAINT
MECHANISM
Complaint of Sexual Harassment u/s 9 of the Act
Complaint of Sexual Harassment u/s 9 of the Act
nComplaint of sexual harassment at workplace must be made by an
aggrieved woman and the same should be
in writing and be specific against the harasser;
Provided where an aggrieved woman is not
capable of making a complaint in writing, in such a case, the presiding officer
or the chairperson, as the case may be, provide assistance to the woman for
making the complaint.
nComplaint should be made to the Internal Committee, if so
constituted or the Local Committee if not so constituted.
nIt should be made within three months from the date of incident
or within three months from the date of last incident in case of series of
incidents.
Provided also
that the Internal Committee or the Local Committee may extend the time limit
not exceeding three months, if it is satisfied that there existed such
circumstances as would prevent a woman from filing a complaint within the said
period.
nIn case if the aggrieved woman is not capable of making a
complaint on account of physical incapacity or death or otherwise, her legal
heir may make a complaint.
n
n
n
nCONCILIATION
under section 10 of the Act
under section 10 of the Act
nThe Internal Committee or the Local Committee before making an
inquiry in the following section, may, at the specific request of the aggrieved
woman take steps to make settlement between her and the respondent through
conciliation.
nNo monetary settlement be made for the purpose of conciliation.
nIf a settlement is arrived at, the Internal or the Local
Committee, as the case may be, record such settlement and forward with
recommendation to the employer or the District Officer to take action as
specified.
nThe Committee shall provide the copies of the settlement so
arrived and recorded to the aggrieved woman and the respondent.
nNo further inquiry is required if a settlement is arrived under
this section.
n
nINQUIRY
INTO COMPLAINT
under section 11 of the Act
under section 11 of the Act
•If the
Internal or the Local Committee, fails
to make effective conciliation under section 10 of the act, it shall, where the
respondent is an employee, in accordance with the provisions of the service
rules, make an inquiry into the complaint and if no such service rules exist,
in such manner as may be prescribed.
•Where
both the parties are employees, they shall be given a fair opportunity of being
heard and a copy of the findings made during the course of inquiry be submitted
to both the parties enabling them to make representations against such findings
before the Committee.
•If any
term or condition of the settlement arrived at under sub-section (2) of section
10 is not complied with by the respondent, then in such a case, the Internal or
the Local Committee shall make an inquiry into the complaint and forward it to
the police.
•The
inquiry under this section shall be completed within a period of 90 days.
•
•
nInquiry u/s 11 the Act into the Complaint by a Domestic
Worker .
nAs per section 2 (b)(ii)(e) a domestic worker is any woman employed to do
the household work in any household for remuneration, whether in cash or in
kind, either directly or through any agency on a temporary, permanent, part
time or full time basis, but does not include any member of the family of the
employer;
n In case of a domestic worker, if a prima facie case exist, the
Local Committee shall, forward the complaint to the police, within a period of
7 days for registering a complaint under section 509 of the Indian Penal Code
(45 of 1860), and any other relevant provisions of the said code where
applicable.
nPowers of
the Committee
The Internal or the Local Committee, as the case may be, has the same powers as vested in a civil court under the Civil Procedure Code,1908 while trying a suit.
The Internal or the Local Committee, as the case may be, has the same powers as vested in a civil court under the Civil Procedure Code,1908 while trying a suit.
nCOMPLETION OF INQUIRY / INQUIRY REPORT U/s 13 of the Act
•Once the
inquiry is completed, the Internal or the Local Committee, as the case may be,
provide a report of its findings to the employer or the District Officer within
10 days from the date of completion of inquiry.
•If the
Committee arrives at a conclusion that the allegations against the respondent
are false or have not been proved, it shall recommend the employer and the
District Officer not to take any action.
•If the
Committee concludes that the allegation against the respondent has been proved,
it shall recommend the employer or the District Officer, as the case may be-
I.To take action against
sexual harassment under the service rules and in absence of service rules, in
such manner, as may be prescribed;
II.To deduct from the salary of
or wages of the respondent such sums as may be appropriate to be paid to
aggrieved woman or to her legal heirs.
•The employer or the District
Officer shall act upon the recommendations within 60 days of its receipt by
him.
n
nFACTORS
DETERMINING COMPENSATION
vMental trauma, pain, suffering and emotional distress caused to
the aggrieved woman;
v Any Loss in career opportunity due to the incident of sexual
harassment;
vAny Medical expenses incurred by the victim of physical and
mental abuse;
vThe income and the financial status of the respondent ;
vFeasibility of such payment in lump sum or in installments.
nPROHIBITION
OF PUBLICATION AND DISCLOSURE OF IDENTITY
under section 16
under section 16
n
nThe Act prohibits publication of the contents of complaint,
identity, addresses of the aggrieved woman, respondent, witnesses and any
information relating to conciliation or inquiry proceedings or an action taken
by the employer or the District Officer.
n
nInformation regarding justice secured to any victim of sexual
harassment may be disseminated without disclosing the name, address, identity
or any other particulars relating to that victim.
nNON-COMPLIANCE
BY THE EMPLOYER U/S 26 OF THE ACT.
v
vIf an employer fails to comply with the provisions of this act,
he shall be punishable with fine which may extend to 50000/- (Fifty Thousand
Rupees Only).
vIf an employer, recommits an offence punishable under this Act
or is convicted of the same offence again, then he shall be liable to the twice
the punishment, which might have been imposed on his first conviction and also
cancellation of his licence or the registration as may be required to carry on
his business or activity.
nPower of
Government to make Rules u/s 22 of the Act
The Central Government is
empowered to make rules for carrying out the provisions of this Act by
notifying in the Official Gazette which shall be notified soon
nCONCLUSION
vThis Act has been formulated for the prevention of any kind of
Sexual Harassment , with noble aim of detection and punishing of the same at
the very first instance and same if
effectively implemented will help in
reducing the acts sexual violence/ exploitation of women at the
workplace by imposing deterrent effects on the perpetrators by imbibing penal
provisions.
n
n
vThe enactment also provides for the effective enforcement of
the basic human right of gender equality and guarantee against sexual
harassment at workplaces.
______________________
n
n
Besides the civil remedy in case of Sexual Harassment of women discussed all above, following are the other penal provisions for perpetrators of Harassment.
Besides the civil remedy in case of Sexual Harassment of women discussed all above, following are the other penal provisions for perpetrators of Harassment.
n
nThe Indecent Representation of Women
(Prohibition) Act (1987).
It is an Act to prohibit
indecent representation of women through advertisements or in publications,
writings, paintings, figures or in any other manner and for matters connected
therewith or incidental thereto.
Main purpose of the legislation and also the wrong that it is
intended to prevent and punish.
Section 3 specifically prohibits publication of any sort of
advertisement which contains indecent representation of women as for instance;
pornographic image or video, etc. and thereby, harasses women.
Section 4 prohibits publication or sending by post of books,
pamphlets, etc. containing indecent representation of women.
n
Section 6 on the other hand imputes criminal
liability on the harasser by making it punishable with imprisonment which may
extend to two years
and with fine which may extend to two
thousand rupees on the first conviction and in the event of a
second or subsequent conviction with imprisonment for term of not less than six
months but which may extend to five years and also with a fine not less than
ten thousand rupees but which may extend to one lakh rupees.
nTHE INDIAN
PENAL CODE, 1860
nSections
354, 376 & 509 are the penal provisions relating to crime against women
nSection 354
of the Act says that whoever
assaults or uses a criminal force to any woman with an intention of outraging
her modesty or with a prior knowledge that his act is certain to outrage the
modesty of the woman commits an offence under this section and is liable to be
punished with an imprisonment of either
description for a term which may extend to two years, or with fine, or with
both.
nSection 376
provides punishment for rape
of a woman and the punishment is imprisonment for a term which shall not be
less than 7 years and may extend for life or for a term which may extend for 10
years and shall also be liable to fine unless the woman raped is his own wife
and is not under twelve years of age, in which case, he shall be punished with
imprisonment of either description for a term which may extend to two years or
with fine or with both.
n
Section 509. Word, gesture or act
intended to insult the modesty of a woman.--Whoever, intending to insult the
modesty of any woman, utters any word, makes any sound or gesture, or exhibits
any object, intending that such word or sound shall be heard, or that such gesture
or object shall be seen, by such woman, or intrudes upon the privacy of such
woman, shall be punished with simple imprisonment for a term which may extend
to one year, or with fine, or with both.
n
nAmendments in Indian Penal Code
Recent Amendment has recognized very important acts as
offences and has incorporated them into the Indian Penal Code,1860. These are
:-
1. Section 326A is a new section which has been added into the IPC and is
aimed at
punishing the offence of acid throwing or acid
attack. It is a gender neutral
offence and has been made cognizable and non-bailable and is triable by
the Court of Session. This section requires that there should be a voluntary
causing of grievous hurt by use of acid, etc.
Punishment- Imprisonment for not less than 10 years but which
may extend to imprisonment for life and fine to be paid to the victim.
2.Section
326B also added which says that if a person voluntarily
throws or attempts to throw acid, then an offence under this section is
committed and is punished with an
imprisonment for 5 years and which may extend to 7 years and with fine. This
offence is also cognizable, non-bailable and triable by the Court of Session.
n
2.Section 354A
a new section is added as it defines and punishes acts of sexual
harassment is aimed at the prevention and prohibition of sexual harassment of
women.
Following are the ingredients of offence of
sexual harassment under this section :
I.physical
contact and advances involving unwelcome and explicit sexual overtures; or
II.a demand or
request for sexual favours; or
III.making
sexually coloured remarks;
or
IV.forcibly
showing pornography; or
V.any other
unwelcome physical, verbal or non-verbal conduct of sexual nature.
Punishment- Imprisonment which may extend to 3
years or with fine or with both in case of sexual harassment of nature of
unwelcome physical contact and advances or demand or request for sexual favours, showing
pornography or;
Imprisonment
which may extend to 1 year or with fine or with both in case of sexual
harassment of the nature of making sexual colored remarks.
This offence is cognizable but bailable unlike
under section 354 of the IPC,1860.
n
4.Section
354B punishes an act which is committed with an intent to disrobe a woman.
Assaults or use of criminal force to any woman or abetment of such act with the
intention of disrobing or compelling her to be naked is made punishable with an
imprisonment of not less than 3 years but which may extend to 7 years and with
fine. The offence under this clause is again cognizable but non-bailable.
5.Section
354C defines and punishes Voyeurism. It says watching or capturing a woman in
“private act”, which includes an act of watching carried out in a place which,
in the circumstances, would reasonably be expected to provide privacy, and
where the victim's genitals, buttocks or breasts are exposed or covered only in
underwear; or the victim is using a lavatory; or the person is doing a sexual
act that is not of a kind ordinarily done in public amounts to voyeurism.
Punishment-
( I ) In case of first conviction, imprisonment of not less than 1 year,
but which may extend to 3 years, and with fine. The Offence is bailable.
( ii ) In case of
second or subsequent convictions, imprisonment of not less than 3 years, but
which may extend to 7 years, and with fine. The offence is non-bailable.
n
6.Section 354D defines the offence of stalking:-
To follow a woman and contact, or attempt to
contact such woman to foster personal interaction repeatedly despite a clear
indication of disinterest by such woman; or monitor the use by a woman of the
internet, email or any other form of electronic communication. There are
exceptions to this section which include such act being in course of preventing
or detecting a crime authorised by State or in compliance of certain law or was reasonable
and justified.
Punishment- ( I ) In case of first conviction,
imprisonment up to 3 years and with fine. The offence is cognizable but bailable.
( ii ) In case of second or subsequent convictions, imprisonment up to 5
years or with fine. The offence is cognizable but non-bailable.
n
nRAPE
(SECTION 375 ) NOW HAS A WIDER DEFINATION AND INCLUDE SEXUAL ASSAULT.
Changes in the definition of rape under section 375 of the IPC,1860:-
vThe word rape has been
replaced with sexual assault in Section
375.
v
vNow
penetration other than penile penetration is an offence under this section.
vThe
definition of sexual assault is gender neutral in some aspect, with acts like
penetration of penis, or any object or any part of body to any extent, into the
vagina, mouth, urethra or anus of another person or making another person do
so, apply of mouth or touching private parts constitutes the offence of sexual
assault.
vpenetration
now means penetration to any extent, and lack of physical resistance is
immaterial for constituting this offence.
n
vA new
section 376A has been added which states that if a person committing the
offence of sexual assault, "inflicts an injury which causes the death of
the person or causes the person to be in a persistent vegetative state, shall
be punished with rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment for life, which shall mean
the remainder of that person’s natural life, or with death”.
vIn gang
rape cases, persons involved regardless of their gender shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but
which may extend to life and shall pay compensation to the victim which shall
be reasonable to meet the medical expenses and rehabilitation of the victim.
v The age of
consent in India has been increased to 18 years, which means any sexual
activity irrespective of presence of consent with a woman below the age of 18
will constitute statutory rape.
n
vOnly in certain aggravated situations,
punishment will be imprisonment of not less than seven years but which may
extend to imprisonment for life and shall also be liable to fine else, in
aggravated situations, punishment will be rigorous imprisonment for a term
which shall not be less than ten years but which may extend to imprisonment for
life, and shall also be liable to fine.
nTEJPAL OF TEHELKA CASE
nIn a graphic email the
victim accused Tejpal of assaulting her in a
hotel lift during a festival in Goa.
njustify his behaviour. Initially, he admitted a
"bad lapse of judgment" and "recused"
himself from the editorship of Tehelka for six months.
nMeanwhile, managing editor Shoma Chaudhury downplayed - calling it an
"untoward incident" to be dealt with internally.
nThen a further email of
"unconditional apology" from Tejpal to the
victim emerged, in which he spoke of attempting a "sexual
liaison" despite her "clear reluctance".
nFaced with a barrage of criticism,
Chaudhury also quit, along with six
other Tehelka staffers.
nIn the latest development,
Tejpal was this week summoned to
Goa for questioning by police and is on bail until Saturday morning.
nHOW CAN IT HAPPEN
nThere has been much
introspection about how a man like Tejpal could
have assaulted a young woman.
nThere has been even more
angst about how a respected female journalist, and feminist, could argue
that sexual assault was simply an internal matter.
nThis kind of behaviour happens not just at Tehelka; most Indian workplaces are completely
ill-equipped to deal with working women. Often a culture of omerta prevails, and
powerful men escape punishment.
nARE JUDGES ABOVE IT ALL?? NO!!
nRecently, a supreme court
judge has been accused of sexual assault by a young female intern, who
allegedly remains too intimidated to file a case.
nAnd IT honcho Phaneesh Murthy has been involved in
three sexual
harassment claims, yet continues to find employers.
nOn the other hand, victims often
find it difficult to be hired once they speak up, and are viewed as
troublemakers.
nRESULT: WOMEN ARE NOT HIRED
nJustice Ganguly faces 3
yrs in jail under Section 354A
nNew Delhi: Just as the
widened definition of rape has made journalist Tarun Tejpal liable to a serious charge,
former Supreme Court judge A K Ganguly may be booked under a
stringent provision introduced in the Indian Penal Code in the wake of the Nirbhaya case. This one relates to
“sexual harassment” which is punishable under Section 354A IPC with
imprisonment up to three years.
The definition of sexual harassment as a criminal offence broadly tallies with the report of the Supreme Court committee which said that the law intern’s statement “prima facie discloses an act of unwelcome behavior”. In a further indication, it was announced on Thursday that Ganguly’s behavior with the intern in a five-star hotel room last December constituted “unwelcome verbal/non-verbal conduct of sexual nature”.
Following such serious observations from the Supreme Court panel, the Delhi police initiated the process of booking Ganguly by asking the intern to record her statement with them. The obvious provision for the contemplated FIR would be Section 354A as it penalizes unwelcome behavior of sexual nature, whether verbal or physical.
The definition of sexual harassment as a criminal offence broadly tallies with the report of the Supreme Court committee which said that the law intern’s statement “prima facie discloses an act of unwelcome behavior”. In a further indication, it was announced on Thursday that Ganguly’s behavior with the intern in a five-star hotel room last December constituted “unwelcome verbal/non-verbal conduct of sexual nature”.
Following such serious observations from the Supreme Court panel, the Delhi police initiated the process of booking Ganguly by asking the intern to record her statement with them. The obvious provision for the contemplated FIR would be Section 354A as it penalizes unwelcome behavior of sexual nature, whether verbal or physical.
nHaving come into force in April, this provision criminalizes
nany of the four specified
acts of sexual harassment:
• Physical contact and advances involving involving unwelcome and explicit sexual overtures,
• A demand or request for sexual favours,
• Showing pornography against the will of a woman,
• Making sexually coloured remarks.
Going by the Supreme Court’s disclosure on the administrative front, the alleged behavior of Ganguly may fit any of the statutorily specified acts barring perhaps the one pertaining to pornography.
For the first three acts, which are physical, the punishment may be imprisonment extending to three years. For the purely verbal overture of making sexually coloured remarks, the maximum sentence is one year. Given the significant difference in the gravity of the offence, it remains to be seen if the police will accuse the former Supreme Court judge of not just verbal conduct but also non-verbal conduct.
In any event, once the FIR is registered, the police will also have to arrest the accused person, who is currently holding a statutory post as chairman of the West Bengal Human Rights Commission. Since sexual harassment is a much lesser offence than rape, Ganguly may find it easier than Tejpal to obtain bail.
The criminal offence of sexual harassment was introduced around the same time that Parliament enacted a law on sexual harassment at workplace, incorporating the 1997 Vishakha guidelines which stipulate the appointment of an internal complaints committee in every organization.
• Physical contact and advances involving involving unwelcome and explicit sexual overtures,
• A demand or request for sexual favours,
• Showing pornography against the will of a woman,
• Making sexually coloured remarks.
Going by the Supreme Court’s disclosure on the administrative front, the alleged behavior of Ganguly may fit any of the statutorily specified acts barring perhaps the one pertaining to pornography.
For the first three acts, which are physical, the punishment may be imprisonment extending to three years. For the purely verbal overture of making sexually coloured remarks, the maximum sentence is one year. Given the significant difference in the gravity of the offence, it remains to be seen if the police will accuse the former Supreme Court judge of not just verbal conduct but also non-verbal conduct.
In any event, once the FIR is registered, the police will also have to arrest the accused person, who is currently holding a statutory post as chairman of the West Bengal Human Rights Commission. Since sexual harassment is a much lesser offence than rape, Ganguly may find it easier than Tejpal to obtain bail.
The criminal offence of sexual harassment was introduced around the same time that Parliament enacted a law on sexual harassment at workplace, incorporating the 1997 Vishakha guidelines which stipulate the appointment of an internal complaints committee in every organization.
nWHAT NEXT? REFINE THE LAW!!!
IMPLEMENT FULLY!!!
nWe need a better law that
defines harassment properly and makes every workplace obligated to deal with
it.
nWe need to speak out and
call it assault, as the Tehelka journalist has done. And,
most importantly, we need more women in the workplace, so they don't feel the
need to be part of an old boys' club to get ahead.
Sharada Avadhanam is a Director APFSL and Senior most trainers for police department
having served APPA / PTC for more than 15 years and visiting faculty at NPA,
JUDICIAL ACADEMY, NISA, NIA, UOH, OSMANIA UNIVERSITY, GSO, IICT and the like.
She is the president of internal committee on sexual harassment in APPA. She has an expertise in the matters of Sexual Harassment, Rape,
Matrimony, 498-A IPC, Domestic Violence, etc. he undertakes workshops and
training on various corporate issues as well as gender sensitization and he can
be contacted # 0-
9440904356
sharada.avadhanam@gmail.com
and
directorapfsl@yahoo.com
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