The Sexual harassment of Women at Workplace Act, 2013 – Critical Appraisal


Critical appraisal of The Sexual harassment of Women at Workplace Act 2013

                                                                                               

By Shiva Tiwari and Abhineet,
B.A.LL.B. 2nd Year,
Aligarh Muslim University Murshidabad Centre.



“You took away her worth, her privacy, her energy, her time, her safety, her intimacy, her confidence and her own voice”




The Sexual Harassment of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that seeks to prevent the sexual harassment against women at variegated workplace. The Act came into force from 9thDecember, 2013. The Act aims to provide protection against sexual harassment of women at workplace and for the prevention and redressal of sexual harassment and for the matter connected therewith or incidental thereto. This act grants women protection against the violation of fundamental right of a woman to equality under article 14 and 15 of the constitution of India as well as her right to life and live with dignity under article 21 of the constitution. By this act all employers are required to constitute an internal complaint committee at a workplace by an order in writing. This Act is primary superseded the vishaka Guidelines that is on case law of vishaka v. State of Rajasthan[3]. Vishaka guidelines were also sanctioned by Apparel Export Promotion Council v. A.K. Chopra[4]. As every coin has 2 duly effect i.e. positive and negative this act has also some critique in it. Several famous personalities like Manoj Mitta of Times of India, as well as Nishith Desai Associates, a law group as well as several tribunals also commented on the constitutionality of this statue. This paper also evaluates the report of Indian labour organization regarding that why very few Indian employers were compliant to this statute. Report by FICCI-EY which clearly state that 36% of Indian companies and 25% of MNCs are not compliant with this Act.


 Introduction


Sexual harassment is an illegal act in a form of unwelcome behavior such as insulting someone with sexual comments, leering and staring someone even touching grabbing or making other physical contact without anyone consent. Sexual harassment is treated as a criminal offence. Sexual harassment can be in written form, verbal form or even in virtual form i.e. online. This is a common phenomenon from which both men and women are suffering. It is common in workplace where low grade employee are been harassed by high grade employee. Due to the fear of losing their jobs they generally endure the harassment. The rate of Sexual harassment in the workplace gradually increases day by day. As a consequences an Act was implement by the government i.e. Prevention of Sexual Harassment at workplace Act 2013. The Prevention of Sexual Harassment Act, 2013 is meant for the hindrance, protection, and redressal of sexual harassment which occurs within the workplace. Any company with over ten staff is remitted to represent an Interior Complaints Committee (ICC) that gives a channel for addressing sexual harassment at the workplace[5]. It has been obligatory for the employer to provide coaching and awareness among staff. The Prevention of Sexual Harassment Act isn’t restricted, within the sense that it’s broad coverage that features all women regardless of their work standing, whether or not operating in unionized or unorganized, public or non-public, sectors, notwithstanding hierarchy. The domestic staffs are enclosed among its orbit.

How this Act came into existence


Gender-based discrimination is one of the abrasive, frigid social phenomenons which our country tries to eliminate as it became one of the constitutional edifices of India. The principle of gender inequality is enshrined in the statutory provision of Article 14 of our constitution. It is also enshrined in our preamble as well.

Vishaka v. State of Rajasthan[6]

The Supreme Court explicitly underlined the meaning of Sexual Harassment, which passes on any undesirable or excluded physical touch or lead or appearing of erotic entertainment or any determinable sexual remarks or messages will go under the ambit of Sexual Harassment. As per me any such lead done specifically hampers the privilege of ladies to life and it likewise influences there respect to live. It likewise thwarts the psychological and physical soundness of ladies. Inappropriate behavior will be maintained a strategic distance from and the uniformity between the sexes will be built up at working environment. The Supreme Court held out rules that, the individual accountable for the specific foundation, association or office whether be it private or open, will be capable in finding a way to anticipate lewd behavior. Punishments will be charged from the denounced individuals for leading inappropriate behavior. Where any of these demonstrations are submitted in conditions under which the casualty of such lead has a sensible fear that in connection to the unfortunate casualty’s business or work (regardless of whether she is drawing pay or honorarium or then again deliberate administration, regardless of whether in government, open or private endeavor), such lead can be mortifying and may establish a wellbeing and security issue, it adds up to inappropriate behavior in the working environment. It is biased, for example, when the lady has sensible grounds to trust that her protest would hindrance her in association with her business or work (counting enlisting what’s more, advancement), or when it makes a threatening working condition. Unfriendly outcomes may result if the unfortunate casualty does not agree to the lead being referred to or then again raises any protest thereto.’

Apparel Export Advancement Council v. A.K Chopra[7]

The Supreme Court repeated the law laid down in the Vishaka Judgment and maintained the rejection of an unrivaled officer of the Delhi based Apparel Export Promotion Council who was discovered blameworthy of explicitly pestering a subordinate female worker at the work environment. In this judgment, the Supreme Court expanded the meaning of inappropriate behavior by decision that physical contact was not basic for it to add up to a demonstration of lewd behavior. The Supreme Court clarified that “sexual provocation is a type of sex segregation anticipated through unwelcome lewd gestures, ask for sexual favors and other verbal or physical lead with sexual suggestions, regardless of whether straightforwardly or by suggestion, especially when accommodation to or dismissal of such lead by the female worker was fit for being utilized for influencing the work of the female worker and nonsensically meddling with her work execution and had the impact of making a scary or unfriendly work condition for her.”

Medha Kotwal Lele v. Union of India[8]

Letter composed by Dr. Medha Kotwal of Aalochana (a NGO) featured a number of individual instances of lewd behavior expressing that the Vishaka Guidelines were not being successfully executed. Changing over the letter into a writ appeal, the Supreme Court took comprehension and embraced checking of usage of the Vishaka Guidelines over the nation by guiding State Governments to record sworn statements stressing on the means taken by them to execute the Vishaka Guidelines. In its judgment, the Supreme Court saw that “the execution of th
e Vishaka Guidelines needs to be in frame as well as in substance and soul in order to make accessible sheltered and secure condition for ladies at working environment in each viewpoint and in this manner empowering working ladies to work with respect, goodness and due regard.’ Not being happy with the execution of the Vishaka Guidelines, it guided States to set up adequate components to guarantee compelling usage of the Vishaka Guidelines. At last, the Supreme Court stated that if there should be an occurrence of rebelliousness or on the other hand non-adherence of the Vishaka Guidelines, it is available to the abused person.

In 2007, the Protection of Women against Sexual Harassment at Workplace Bill was introduced and gets approved by union cabinet. In year 2010, this bill was first introduced in Lok Sabha. In 2012 this bill was re-introduced in loksabha and in September 03, 2012. In February 26, 2013 this bill was passed in rajya sabha. This bill got president assent in April 23, 2013 and published in the Gazette of India. In December 09, 2013 by the notification of Indian Ministry of Women and Child Development this Act came into effect.

Complaint Filling and Hearing


Any aggrieved lady can document a grievance of inappropriate behavior to IC inside 3 months of the occurrence. The period inside which one can document the dissension can likewise be reached out to another time of three months. Likewise, where the bothered lady can’t make a grievance because of her physical insufficiency, her lawful beneficiary, relative or companion, associate, an officer of the National Commission for Women or State Women’s Commission may make an objection to the IC for her sake, with her consent. Likewise, if the lady is experiencing mental insufficiency, a qualified therapist or analyst or the watchman or specialist under whose care she is getting treatment or care, can record an objection before the IC.

IC, before it starts request, may attempt to concile between the gatherings, if the bothered lady asks for yet money related repayment can’t be the premise of assuagement. On the off chance that assuagement is absurd, IC will ask into the grumbling and allow the two gatherings to be heard and finish the request in 90 days. Amid the request procedure of being heard, neither one of the parties will be permitted to bring their attorney. Post request, IC should set up a request report giving proposals on the issue, in 10 days, and give a duplicate of the equivalent to the association/organization and the concerned gatherings. The association/organization should follow up on the suggestions in 60 days. The Act likewise gives that if an unfortunate casualty is disappointed with the discoveries of IC, she can interest a Court/council. IC has been allocated with the obligation to present a yearly give an account of the no. of cases that emerged and got settled amid the year to the organization and the organization further has been commanded to incorporate this data in its yearly report and in instances of organizations which don’t plan yearly report, the organizations are required to personal such number of cases to the District Officer.

Confidentiality under this statute


Perceiving the affectability connected to issues relating to inappropriate behavior, the  Sexual harassment of Women at Workplace Act, 2013  connects noteworthy significance to guaranteeing that the dissension and associated data are kept secret. The  Sexual harassment of Women at Workplace Act, 2013  explicitly stipulates that data relating to working environment inappropriate behavior will not be liable to the arrangements of the Right to Information Act, 2005. The Sexual harassment of Women at Workplace Act, 2013  further disallows spread of the substance of the dissension, the personality also, locations of the complainant, respondent, witnesses, any data relating to pacification and request procedures, suggestions of the IC/LCC and the activity taken to people in general, press and media in any way. All things considered, the Sexual harassment of Women at Workplace Act, 2013  permits scattering of data relating to the equity that has been anchored to any injured individual of lewd behavior, without revealing the name, address, character or some other specifics which could result in the distinguishi
ng proof of the complainant or the witnesses. Disclosure of the equity anchored couldn’t just prevent different people from taking part in demonstrations of inappropriate behavior, yet in addition ingrain in the brains of representatives and open that the manager is not kidding about giving a safe workplace and harbors zero resilience for any type of inappropriate behavior at the workplace. Break of the commitment to keep up secrecy by an individual depended with the obligation to deal with or manage the protest or lead the request, or make suggestions or then again take activities under the resolution, is culpable as per the arrangements of the administration rules appropriate to the said individual or where no such administration rules exist, a fine of INR 5,000.29
[9]

Punishment and compensation


The Sexual harassment of Women at Workplace Act, 2013  endorses the accompanying disciplines that might be forced by a boss on a worker for enjoying a demonstration of lewd behavior:

  •  discipline endorsed under the administration standards of the association;
  •   on the off chance that the association does not have benefit rules, disciplinary activity including composed statement of regret, cautioning, criticize, rebuff, retaining of advancement, retaining of pay rise or additions, ending the respondent from administration, experiencing an advising session, or completing network benefit; and
  •   Derivation of remuneration payable to the wronged lady from the wages of the respondent.[10]


 The Sexual harassment of Women at Workplace Act, 2013  likewise conceives installment of pay to the abused lady. The pay payable will be resolved in view of:

  • The psychological injury, torment, enduring and enthusiastic misery caused to the distressed representative;
  • The misfortune in profession opportunity due to the occurrence of inappropriate behavior;
  • Therapeutic costs brought about by the person in question for physical/mental treatment;
  • The salary and status of the affirmed culprit; and
  • Attainability of such installment in single amount or in installments[11].

If the respondent neglects to pay the previously mentioned total, IC may forward the request for recuperation of the aggregate as an arrear of land income to the concerned District Officer.

Critics of this act


1.      Biased Act
       
      It’s nothing but a sexually unbiased Act by any means. It is a non-extensive Act men can be exposed to unseemly conduct at the workplace as well, and furthermore trans-sex and transsexual people. Concerning this wrongdoing, urban communities in India are unbiased and ladies are frequently on the ruling end simply like men. The demonstration leaves a wide extension for false claims and the impact of such charges ought not to be seen just on the person on inquiry however his whole family as well. This not simply transforms into a wellspring of unsettling influence to the man, however it likewise discolors their notoriety. This thus results in dangers that the nuclear family may go up against.


2.     No Suo Motu cognizance of Acts                
                                                           
       The Indian Penal Code, 1860, makes sexual harassment a cognizable criminal offence. Under Indian Penal Code, an employer can file a First Information Report for sexual harassment registered with the police without requiring consent or approval of the aggrieved woman and the alleged perpetrator can be arrested by the police without a warrant. However, under the2013 Act, though it is the statutory duty of an employer to provide a safe working environment at the workplace, an employer is not authorized to take Suo Motu cognizance of acts of sexual harassment at workplace. Consequently, an employer has no option but to wait till he/she receives of an oral or written complaint from an aggrieved woman to initiate appropriate action. Further, in terms of the Act, an employer can initiate action under Indian Penal Code for sexual harassment at workplace against an alleged perpetrator only if the aggrieved woman so desires, and not otherwise.

3.      Monetary compensation

As per the enshrined provision of this statutory the committee established should imposes the penalties in form of money on culprit. It is based on the discretion of the committee to impose the amount of fine on the culprit. The committee also rewards the incentive to the victim.

4.      conciliation

The arrangement for appeasement accommodates the Committee to make an endeavor to determine the complainant through assuagement continuing attempted at the unfortunate casualty demand and continue to make
request, just if a settlement isn’t reached. Be that as it may, this arrangement swindles tries to achieve equity in dissolving the nobility of ladies by exchanging of on ladies’ provocation It is boundless and silly why an explicitly bothered lady may need to accommodate with her guilty party. The Act mulls over, restricting cash related settlements for an unfortunate casualty and the denounced to touch base at appeasement. In any case, there are no checks to shield the businesses from manhandling the assuagement game plans to dodge any damage and brushing the issue a long way from anybody’s standard field of vision by inducing or forcing a injured individual to pick pacification and thusly, settle the issue circumspectly. The Act does not prescribe whenever assignment to lead and complete this pacification, or to execute the settlement, expecting any, touched base at through placation. Thus, a complaint can aggregate residue for an extensive timeframe till a request is started under the Act. Notwithstanding it, no intrigue can be made against a request of settlement landed at through mollification. Hence, a business oppressed with such a request has no option however to actualize it.


FICCI-EY Report 2017


An as of late led study demonstrates that vulnerability, alert and contemplation are still profoundly pervasive among organizations:

§  The overview demonstrates that 31% of the respondents were not consistent with the Act (after its authorization), which orders ICCs being comprised to address objections. Resistance among Indian organizations was 36% though MNCs were possibly better, remaining at 25%.

§  40% of the respondents are yet to prepare their ICC individuals. Indian organizations fared low with 47%. On the other hand, MNCs remained at 34%.

§  35% organizations overviewed were uninformed of the punitive ramifications for rebelliousness while comprising ICCs. Shockingly, the issue was progressively articulated among MNCs with relatively 38% expressing their obliviousness.

§  44% of the respondents’ associations did not show the reformatory outcomes of lewd behavior in their premises. SME part fared low with 71% did not show such alerts obviously at their place.

§  An inside protestations board of trustees (ICC) is compulsory in each private or open association that has at least 10 representatives, as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. In any case, 36% of Indian organizations and 25% of worldwide organizations had not yet established their ICCs, the 2015 research consider, Fostering Safe Workplaces, by the Federation of Indian Chamber of Commerce and Industry (FICCI) appeared. About half of the in excess of 120 organizations that partook in the examination conceded that their ICC individuals were not lawfully trained.

National Public Radio survey 2018
The results, discharged in a report, demonstrate that 77 percent of ladies had encountered verbal lewd behavior, and 51 percent had been explicitly contacted without their authorization. Around 41 percent said they had been explicitly bugged on the web, and 27 percent said they had endure sexual assault .However, 38 percent of ladies said they encountered inappropriate behavior at the working environment. Thirty-five percent said they had encountered it at their habitation



Conclusion


We have to quit regarding these insights as simple numbers. A great deal of people, think that it’s difficult to turn out and report examples of lewd behavior since they are terrified they will lose their positions. These cases are on the ascent, and it is time associations assumed more prominent liability and implemented stricter principles and methods set up to help secure their workforce. These provisos could well provoke general inadequacy of the Act and principles in tending to inappropriate behavior at work environments. To keep this, the administrative apparatus should consider making appropriate and sensible changes to the Act. The general impression given by the Act is that it is definitely not extremely very much drafted, with satisfactory sensible prescience of the fierce effects of its utilization. These risky arrangements and unanswered request present an issue for use of the Act and remains to be cleared up.                                                                                                                                                          

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[1] Author, 3rd semester BALLB, Aligarh Muslim University Centre Murshidabad, phone number-9953630909 Email-shiva20121998tiwari@gmail.com
[2]Co-Author, 3rd semester BALLB, Aligarh Muslim University Centre Murshidabad, phone number-8809229746 Email-aneetsingh.singh0@gmail.com
[3] (AIR 1997 SUPREME COURT 3011)
[4] ((1999) 1 SCC 759)
[5] Section 5 of Prevention of Sexual Harassment at workplace Act, 2013
[6] (AIR 1997 SUPREME COURT 3011)
[7] ((1999) 1 SCC 759)
[8] (2013) 1 SCC 297
[9] Section 17 of the Prevention
of Workplace Sexual Harassment Act and Rule 12 of the Prevention of Sexual Harassment Rules
[10] Section 13 of the Prevention of Workplace Sexual Harassment Act
[11] Section 15 of the Prevention of Workplace Sexual Harassment Act


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