1.

MEANING OF SEXUAL HARRASSMENT

Sexual harassment can be defined as any unwanted conduct of sexual nature. Such conduct can
either be in form of quid pro quo harassment, where a sexual favor is made a condition to secure a
work related benefit like promotion, confirmation etc and denial to such favour may be met with a
work related detriment like demotion ,transfer etc or such harassment may take form of creation of
a hostile working environment where no direct sexual favours are asked for but a hostile working
conditions are created e.g display of obscene graffiti, making sexual comments, physical touches,
brushing against etc.

2. Magnitude and Effects

Each incident of sexual harassment at work place is an example of human rights violation. It results
in violation of the fundamental right to gender equality and the right to live with dignity which is
an essential part of Right to life and liberty, the most precious fundamental right guaranteed by the
constitution of India. However such violations are taking place in every kind of workplace- organized,
unorganized sectors, government offices, private organizations etc. Mostly, affected women do not
report such incidents due to fear, stigma, insecurities etc. Such harassment forces women to suffer
humiliation, reduces their job performance and forces many of them to even quit their jobs. It can
also lead to insecurities, frustration, irritation, anger bouts or depression in women.

3 Existing legal framework

3.1 Role Of Judiciary In Combating sexual harassment-

It’s surprising that despite the need till 2013 there was no specific legislation or any specific
provision in Indian Penal Code(IPC) dealing with sexual harassment. Indian Judiciary particularly the
Supreme Court played a creative role in this regard and felt the need for some law in this field and
this was answered by the Apex court in the celebrated judgement of the Vishaka v. State of
Rajasthan.

The judiciary in the above case has exalted the dignity of working women by issuing directions for
providing safe environment at the work place to ensure protection of female employees from
sexual harassment. The Supreme Court took upon itself the task of preparing a comprehensive set
of guidelines and norms and stressed that such guidelines be treated as law within the meaning of
Article 141 of the Constitution.

The Court defined sexual harassment very clearly as well as provided guidelines for employers to
redress and prevent sexual harassment at workplace. While the Apex Court has given mandatory
guidelines, known as Vishaka Guidelines for resolution and prevention of sexual harassment
enjoining employers by holding them responsible for providing safe work environment for women.

Provisions In Indian Penal Code-

Recognizing the much felt need of laws specifically dealing with the issue of sexual harassment,
legislature by The Criminal Law (Amendment) Act, 2013introduced S.354A, dealing with sexual
harassment in Indian Penal Code,1860 and in 2013 passed the Sexual harassment (Prevention,
Prohibition and Redressal) Act.

Legislation On Sexual Harassment

With quick grievance redressal in mind , inducting a work environment free of sexual harassment
and protection of women from sexual harassment the legislature introduced The Sexual Harassment
Of Women At Workplace (Prevention, Prohibition and Redressal) Act in 2013.The preamble of the
Act makes the object of the act very clear

3.3.1 -Definitions-

The Act provides adequate definitions of various concepts

A. Sexual Harassment -An inclusive definition of sexual harassment is provided under S2(n).It
includes unwelcome sexually determined behaviour, physical contact, advances, sexually coloured
remarks, showing pornography, sexual demand, request for sexual favours or any other unwelcome
conduct of sexual nature. Such harassment may include one or more of the above mentioned acts
whether done directly or impliedly. Section 3 which deals with prevention of sexual harassment adds
to the definition and makes it amply clear that both quid pro quo claims and hostile working
environment are included in the definition of sexual harassment

B. Aggrieved woman- in relation to a workplace means any woman whether employed or not who
alleges to have been subjected to any act of sexual harassment and in relation to a dwelling place or
house, a woman of any age who is employed in such a dwelling place or house. Thus the definition
includes all employed women, domestic servants and by implication students, research scholars in
educational institutions etc.

C. Employee – Defined under S 2 (f) an employee means a person employed at a workplace whether
regular, temporary, ad hoc, on daily wage, on contract working on voluntary basis, probationer,
trainee or apprentice and it also includes a co worker.

D. Workplace- As defined under S.2(o) workplace includes:-

i-any government organization, a local authority, a co-operative society, Government company.

ii-any private sector organization, society, trust, non-governmental organization, unit or service
provider.

iii-hospitals or nursing homes;

iv-any sports institute, stadium, used for training, sports or other activities relating thereto used for
sport training and other sport activities

v- any place visited by the employee arising out of or during the course of employment including
transportation provided by the employer for undertaking such journey

vi-a dwelling place or a house.

E. Internal and local Committee Internal and local committee means an Internal Complaints
Committee and Local Complaints Committee

Prevention Of Sexual Harassment

Section 3 Declares that no woman shall be subjected to sexual harassment at any workplace. It also
gives examples of acts or behavior that may amount to sexual harassment like implied or explicit
promise of preferential or detrimental treatment in her employment, threat about her present or
future employment status, creating an intimidating or hostile work environment for her or
subjecting her to a humiliating treatment likely to affect her health or safety.
Complaint mechanism –

The Act provides for setting up an internal complaints committee and a local complaints committee.
A. Internal Complaints Committee-

The setting up of internal complaints committee is much on the lines of the Vishaka’s guidelines. It
provides under section 4(1) that “for the purpose of this Act, every employer of a work place shall
constitute, by an Office Order in writing, an Internal Complaints Committee.

B. Constitution of the Internal complaints committee-

Section 4(2) provides for the constitution of the committee. The Committee shall consist of a
Chairperson, from amongst employees, who shall be a senior level woman, committed to the cause
of women. In case a senior level woman employee is not available in that department then the
Chairperson shall be appointed from other departments or offices of the same employer or other
department or organization. Committee shall also consist of atleast two members from amongst
employees committed to the cause of women or who have had experience in social work; and one
member from amongst such non governmental organizations or associations committed to the
cause of women, as may be specified. However at least fifty per cent of the members so nominated
shall be women.

C. Local Complaints committee- The Act contains a provision for appointment of a district officer to
deal with the complaints arising out of the act. Such officer would be appointed by the appropriate
government from amongst District Magistrate or Additional District Magistrate or the Collector or
Deputy Collector as the case may be. Moreover Apart from constitution of an internal complaints
committee, The Act also contains a provision for a local complaints committee as well. It provides
that a local complaints committee shall be constituted by the district officer in every district to
receive the complaints of sexual harassment where an internal complaints committee has not been
constituted at the workplace as the number of employees are less than ten, or where the complaint
is against the employer himself.

Who can complain?

Now on the point of who can make a complaint section 9 of The Act provides that an aggrieved
woman may make a complaint of sexual harassment at workplace to the Committee or the Local
Committee, as the case may be, in writing however where such complaint cannot be made in
writing, the Chairperson or any member of the Committee or the Local Committee, as the case may
be, shall render all reasonable assistance to the woman making the complaint to reduce the same in
writing. Where the aggrieved woman is not able to make a complaint on account of her physical or
mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed
may make a complaint.

Section 16 provides for prohibition in publication of such complaints. If any person who is incharge
of dealing with complains publishes it shall be penalized as per section 17.

Conciliation-Section 10 of the Act provides for conciliation. At the request of the aggrieved woman,
the complaints committee may take steps to settle the matter between her and the respondent
through conciliation. If a settlement is arrived then it must be recorded by the committee and has to
be forwarded to the employer, in case the internal complaints committee is handling the matter or
to the district officer, in case the local complaints committee is handling the matter. In case
conciliation is arrived then no inquiry would be carried on.
Inquiry-Section 11 of the Act deals with provisions relating to Inquiry. Inquiry must be completed
within 90 days of filing the complaint, if enquiry is conducted it must be conducted as per the service
rules and in case no service rules are applicable then as per the manner prescribed in the rules.

Punishment- The Act also makes a provision for punishment in case of false and malicious
complaints under section 14 Where the Complaints Committee , arrives at a conclusion that the
allegation against the respondent is malicious or the aggrieved woman or any other person making
the complaint has made the complaint knowing it to be false has produced any forged or misleading
document, it may recommend to the employer or the District Officer, as the case may be, to take
action against the woman or the person who has made the complaint as the case may be, in
accordance with the provisions of the service rules applicable to her or him or where no such service
rules exist, in such manner as may be prescribed. However provided that a mere inability to
substantiate a complaint or provide adequate proof shall not attract action against the complainant
under this section. The malicious intent on part of the complainant shall be established after an
inquiry before any action is recommended.

3.3.4Compensation- Section 15 deals with quantum of punishment. Payment of compensation to

the aggrieved woman shall have regard to the mental trauma, pain, suffering and emotional distress
caused to the woman, the loss in the career opportunity, medical expenses incurred by the victim
for physical or psychiatric treatment, the income and financial status of the respondent and
feasibility of such payment in lump sum or in installments.

Penalty for non-compliance with provisions of Act- Section 26 provides that if the employer fails to
constitute an Internal Committee or does not take action under relevant provisions and contravenes
or attempts to contravene or abets contravention of other provisions of this Act or any rules made
thereunder he shall be punishable with fine which may extend to fifty thousand rupees.