Index:

• What is Sexual Harassment?
• Pre Vishakha Case
• Post Vishakha Case
• Who is an aggrieved woman?
• Employer and its duties
• What is a workplace?
• Complaint Contains
• Internal Complaints Committee (ICC)
• Local Complaints Committee (LCC)
• Action by the ICC or the LCC after receiving a complaint
• Grounds for deciding a compensation by ICC or LCC
• How will a complaint be made?
• District Officer
• Scope and process for Conciliation and Settlement (Section 10)
• What can the Internal Complaint Committee or Local Complaint Committee recommend to the employer during the pendency of an inquiry? 
• Power of Court

Introduction:

Sexual Harassment means an unwelcome behavior of sexual nature. Sexual Harassment in the Workplace is a widespread problem in the world. Whether it be a developed nation, a developing nation, or an underdeveloped nation, atrocities against women are common everywhere. It is a universal problem negatively impacting both men and women in society. Sexual Harassment, in simple meaning, is "any unwanted or inappropriate sexual attention. It includes touching, looks, comments, or gestures".

The Indian Constitution provides "equality of status and opportunity" for all citizens. Article 14 of the Constitution guarantees equality for every person under the law, and Article 21 provides to live with personal liberty. It is a legal right for a woman to have a safe workplace. These articles ensure a person's right to live a life free from discrimination on any ground, equal protection under the law, and protect life and personal liberty.

Sexual Harassment in the Workplace leads to poor productivity and negatively impacts lives and livelihoods. Despite women being self-dependent and holding good positions, they face Harassment, inequity, and injustice even in today's modern era. The security at the workplace will improve women's participation in work, resulting in their economic empowerment and inclusive growth. 

What is Sexual Harassment?

Sexual Harassment means:

An unwelcome sexual behavior 
Behavior must be offensive, humiliating, or intimidating in nature.
That behavior may be in any form, i.e., written, verbal or physical, and also it can happen either in person or online(through the internet).

Anybody can experience sexual Harassment, regardless of their gender. When it occurs at the workplace or school, Sexual Harassment may amount to a form of discrimination.

Effect of sexual Harassment:

• Feel stressed, anxious, or depressed
• Withdraw from social situations
• Lose confidence and self-esteem
• Stress, such as headaches, overthinking, backaches, or sleep problems
• Become less productive and unable to concentrate.

Sexual Harassment includes if someone:

• Making comments that have a sexual meaning
• Asking you for sex or sexual favors.
• Cracking sexual jokes and comments around or to you.
• Insulting you with sexual words.
• Behavior that makes you feel uncomfortable.
• Serious or repeated offensive remarks.
• Displaying sexist or abusive pictures, posters, MMS, SMS, WhatsApp, or e-mails. 
• Intimidation, threats, blackmail around sexual favors. 
• Unwelcome social invitations with sexual overtones are commonly understood as flirting. 
• Unwelcome sexual advances may or may not be accompanied by explicit or implicit promises or threats.
• Physical contact such as touching or pinching. 
• Caressing, kissing, or fondling someone against her will (could be considered assault). 
• Invasion of personal space (getting too close for no reason, brushing against or cornering someone). 
• Persistently asking someone out, despite being turned down. 
• Stalking an individual. 
• Abuse by authority or power to threaten a person's job or undermine her performance against sexual favors.

Pre Vishakha Case

Before the Vishakha guidelines, the women had to take matters of Sexual Harassment at the Workplace by complaining under Sec 354 and 509 of IPC. Sexual Harassment was a severe issue, and it still is. Everybody wants to prevent Sexual Harassment as prevention is the first step to prohibiting or abolishing any dangerous thing from society. The international community has recognized in their international treaties and documents the freedom from Sexual Harassment as a human right of women. Until the Vishakha judgment came, there was no law to govern this matter in India.

Case: Vishaka and others VS. State of Rajasthan and others (1997)
In 1992, Bhanwari Devi was appointed as an agent by the state of Rajasthan and worked as a Satin to work toward the prevention of the practice of child marriages. She prevented the union of a union of-old girls in the community during the work. Men of that community raped her. She reported this to the local authority, but no action was taken. That omission came at a high cost. Those very men subsequently raped Bhanwari Devi. The case revealed the ever-present sexual harm. Millions of working women are exposed across the country, everywhere every day, irrespective of their location.

Vishaka and other women filed a Public Interest Litigation (PIL) against the State of Rajasthan and the Union of India before the Supreme Court of India. It proposed that sexual Harassment be recognized as a violation of women's fundamental right to equality and that all workplaces/ establishments/ institutions are made accountable and responsible for upholding rights.

After 16 years of the Vishaka case, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 was enacted. This Act aims to protect women against Sexual Harassment in the Workplace.

Post Vishakha Scenario
In India, there was no Act for the protection of women from Sexual Harassment that was moved in the Indian Parliament in the year 2005. After a ten-year gap in 2010, the Bill was in the Lok Sabha with slight changes to the old Bill, and then the new Bill defined "sexual harassment" and also provided for a redressal mechanism through an "Internal Complaint Committee" in the Workplace or "Local Complaint Committee" at the district level. The biggest problem regarding the action against the false complaint and negative charges or complaints. As a solution to this issue, the Parliamentary Standing Committee, in June 2011, submitted recommendations to remove false and hurtful accusations. Then the new Bill retained the action against false and malicious charges by Internal Complaint Committee or Local Complaint Committee under section 14.

Vishaka Guidelines Against Sexual Harassment at the Workplace

• It is necessary and reasonable for employers in workplaces and other responsible persons or institutions to observe specific guidelines to protect women from Sexual Harassment.
• It is the employer's duty or other responsible persons in workplaces and other institutions.
• It is the employer's duty of the employer or other responsible persons in workplaces or other institutions to prevent the commission of acts of Sexual Harassment and provide the procedures for the resolution, settlement, or prosecution of doing, of Sexual Harassment by taking all steps required.

Who is an aggrieved woman?

The definition of aggrieved woman is given under Section 2(a).

• Any aggrieved woman may make a complaint of Sexual Harassment at the Workplace to the Internal committee/ Local Committee within three months from the date of the incident or the date of the last incident in case of a series of an incident.
• The Internal Complaint Committee and the Local Complaint Committee can extend the time limit not exceeding another three months if it is satisfied that the circumstances prevented the woman from filing the complaint within the said period.
• If the aggrieved woman cannot make a complaint on account of her physical or mental incapacity or death, her legal heirs or another person as may be prescribed may do so.

Employer and its duties

According to Section 2(g), employer means:

 
Duties of the employer:  According to Section 19 of this Act, every employer shall

• Provide a safe working environment for the woman at the Workplace, including safety from the persons coming into contact at the Workplace.
• Organize workshops and awareness programs regularly to sensitize the employees about this Act. 
• Organize the orientation programs for the members of the Internal Complaint Committee.
• Provide necessary facilities to the Internal Complaint Committee or Local Complaint Committee to deal with the complaint and conduct an inquiry.
• Assistance in securing the attendance of respondents and witnesses before the Internal Complaint Committee or Local Complaint Committee.
• Make available such information to the Committees about the complaint.
• Assist the woman in filing a complaint under IPC or any other law for the time being in force.
• Treat Sexual Harassment as misconduct and take action against such misconduct.
• Monitor the submission time of reports by the Internal Complaint Committee.

What is a workplace?

A workplace means "any place visited by the employee arising out of or of employment. It includes transportation provided by the employer for undertaking such a journey." 
According to this definition, a workplace includes both the organized and unorganized sectors and consists of all workplaces owned by an Indian or foreign company place of work in India. As per the Act, the Workplace consists of:

• Government organizations, including Government companies and cooperative societies.
• Private sector organized organizations; associations trust NGO or service providers, etc., providing commercials, vocational, educational, sports, entertainment, industrial, health-related or financial activities like production, sale, supply, distribution, or service.
• Any Hospitals/ Nursing Homes.
• Any Sports Institutes/ Facilities.
• Places visited by the employee (including while on travel), including transportation provided by the employer.
• A dwelling place or house.

Complaint Contains:

Internal Complaints Committee (ICC): 

• According to Section 4(1) of this Act, every workplace employer shall constitute a committee known as the Internal Complaint Committee by an order in writing. 

• When ten or more employees constitute the Internal Complaint Committee.
• At least one-half of the total committee members shall be women.
• The tenure of these members should not exceed three years.

Local Complaints Committee (LCC):

• According to Section 6(1) of this Act, the District Officer of a district shall constitute a committee known as the Local Complaint Committee by an order in writing.
• When less than ten employees constitute the Local Complaint Committee.
• As per Section 7(2), the tenure of the Chairperson and every member of the Local Committee is three years from the date of nomination.

Action by the ICC or the LCC after receiving a complaint:

• The Internal Complaint Committee or Local Complaint Committee must proceed to inquire under the service rules applicable to the respondent.
• If there are no such service rules, proceed with rules framed under this Act.
• Forward the complaint to the Police for registering the case under the IPC Section 509 or any other relevant provisions of the Indian Penal Code within seven days.
• In case of non-compliance by the respondent to the terms and conditions of a settlement agreed upon. When the aggrieved woman informs the Internal Complaint Committee or Local Complaint Committee about it, the ICC or the LCC may inquire or forward the complaint to the Police.

Grounds for deciding a compensation by ICC or LCC:

Suppose the ICC or the LCC concludes that the allegation against the respondent has been proved. In that case, recommend to the employer and the District Officer to deduct from the salary or wages of the respondent such sum to be paid to the aggrieved woman or her legal heirs. Suppose the employer cannot make such deductions from the respondent's salary due to his absence or employment cessation. In that case, the ICC or the LCC may direct the respondent to pay such an amount to the aggrieved woman. 

According to Section 13(3), if the respondent fails to pay the amount, Committees may forward the order as an arrear of land revenue to the concerned District officer to recover the sum. 
Determination of Compensation: 

• Suffered an emotional distress caused to the woman
• Loss of a career opportunity due to a sexual harassment case
• Her medical expenses
• Income and financial status of the respondent
• The feasibility of such payment.

How will a complaint be made?

• According to Section 9, any aggrieved woman may complain of Sexual Harassment at the Workplace to the Internal Complaint Committee/ Local Complaint Committee within three months from the date of the incident or the last incident date in case of a series of incidents.
• Section 9(2) states that if an aggrieved woman is unable to make a complaint on account of her death, her physical or mental incapacity or death, her legal heirs or complaints relative, friend, co-worker, or any person who knows about the incident with the written content of the complainant.
• The Internal Complaint Committee and the Local Complaint Committee can extend the time limit to three months if it is satisfied that the circumstances prevented the woman from filing the complaint within the said period.

District Officer:

According to Section 2(d) and 5 of this Act, State Governments will notify:

• The District Magistrate,
• The Additional District Magistrate,
• The Collector or
• The Deputy Collector is a District Officer at the local level.

 
The District Officer will carry out the powers and functions under this Act at the district and district levels, including every block, taluka, tehsil, ward, and municipality.
The District Officer forwards a brief report on the annual reports to the appropriate State Government. Such statements must include the following information: 

• Number of complaints received; 
• Number of complaints disposed of; 
• Number of workshops/awareness programs carried out; 
• Nature of the action taken by the employer/ District Officer.

The Report of ICC is forwarded to the District Officer through the employer.

Scope and process for Conciliation and Settlement (Section 10):

• Before initiating an inquiry, the Internal Complaint Committee or Local Complaint Committee may take steps to arrive at a settlement between the parties at the request of the aggrieved woman.
• Suppose no monetary settlement can be made as to the basis of such conciliation. The Internal Complaint Committee or Local Complaint Committee records the settlement where such a settlement has been arrived at. It forwards the same to the employer or the District officer to take action as specified in the recommendation. 
• Duty of a Committee to provide copies of the settlement to the aggrieved woman and the respondent.
• If a settlement is arrived at, the Internal Complaint Committee or Local Complaint Committee shall conduct no further inquiry.
• However, suppose the aggrieved woman informs the Internal Complaint Committee or Local Complaint Committee that any terms or condition of the settlement has not been complied with by the respondent. 
• In that case, the Internal Complaint Committee or Local Complaint Committee shall proceed to inquire into the complaint or, if necessary, forward the complaint to the Police.
• The inquiry must be completed within 90 days.

What can the Internal Complaint Committee or Local Complaint Committee recommend to the employer during the pendency of an inquiry? 

During inquiry pendency, the Internal Complaint Committee or Local Complaint Committee, on a written request by the aggrieved woman, the Internal Complaint Committee or Local Complaint Committee can recommend the following: 

• Transfer respondent the or the aggrieved woman or 
• Grant leave up to three months to the aggrieved woman or 
• May grant such other relief to the aggrieved woman is required.
• The leave granted to the aggrieved woman is in addition to the leave that she is otherwise entitled to. 
• The employer shall be made the implementation recommended by the Internal Complaint Committee or Local Complaint Committee and send the report of such performance to the Internal Complaint Committee or Local Complaint Committee.

Power of Court: 

According to Section 27(2), a Metropolitan Magistrate or a Judicial Magistrate of the first class are competent courts to try the offense under this Act.

Punishment with fine:

Punishment with a fine of up to Rs- 50,000/- (fifty thousand) can be done to the employer in the following circumstances: 

• Failure to constitute Internal Complaints Committee as per subsection (1) of Section 4; or
• Failed to act upon recommendations of the Complaints Committee, and the employer has not taken action under sections 13, 14, and 22; or
• In case of fails to file an annual report to the District Officer where required; or 
• The employer has attempted to contravened or contravene or abet the contravention of this Act's other provisions or any rules made under the Act.
• Twice the punishment:

If an employer previously convicted of an offense punishable under the Act commits and is convicted of the same offense.

• According to Section 26(2)(ii), there can be cancellation of license or withdrawal or no approval or renewal or cancellation of registration by the Government of India or the local authority, in case the employer, after having been previously convicted of an offense, commits and is convicted of the same offense.

To read this article in Hindi- Sexual Harassment

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