Critical Analysis of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal ) Act, 2013
Sexual harassment has been recognized as a violation of human rights and it is considered as a crime which violates the dignity and respect of a women. Sexual harassment which was otherwise invisible menace until quite recently, has now become a major social problem with the widespread entry of women as a work force. Sexual harassment is bullying or coercion of a sexual nature or the unwelcome or inappropriate promise of rewards in exchange f sexual favours. Presently in modern contexts sexual harassment is illegal and it is unlawful to harass a person of that person’s sex. Thus, harassment can include, sexual harassment or unwelcome sexual advances, requests for sexual favours and other verbal and physical harassment of a sexual nature. This paper is an attempt to highlight the retrospective development (National and International) responsible to compel the Parliament to pass the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Moreover, the Act has also been critically analysed to remove the lapses for the proper implementation of this law in its true letter and spirit.
Meaning of the Term, Sexual Harassment
Sexual Harassment of women is a form of exploitation which covers physical as well as mental exploitation, which affects her status in society, her relationships and also her performance at workplace. Sexual Harassment is behaviour of a sexual nature when unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature is made either explicitly or implicitly as condition of employment of an individual, such conduct or submission to such conduct is called sexual harassment. Submission to or rejection of such conduct by an individual employee is used as a basis for employment decisions affecting such individual, or such conduct has the purpose or effect of unreasonably interfering with an individuals working performance or creating an hostile, or offensive work environment. According to European Commission, Sexual Harassment means, the Unwelcome, unreasonable and offensive nature of the conduct, and includes conduct that is hostile, intimidating or humiliating to the recipient. The Equal Employment Opportunity Commission (EEOC) of United States which oversees the enforcement of title has defined that “Unwelcome sexual advances, requests for several favours, and other verbal and physical conduct of a sexual nature constitute sexual harassment.” As per the Australian Human Rights and Equal Employment Opportunity Commission, “Sexual Harassment is an unwelcome conduct, such as sexual advances and requests for sexual favours, when a reasonable person would feel offended, humiliated or intimidated by the conduct.” The Convention on Elimination of Discrimination Against Women further says that Sexual Harassment includes such unwelcome sexually determined behaviour as physical contacts and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion or when it creates a hostile working environment. The ILO (International Labour Organisation) definition of ‘Sexual Harassment’ is a clear form of gender discrimination based on sex, a manifestation of unequal power relations between men and women.” Moreover the Supreme Court of India in Vishaka and Others vs. State of Rajasthan define the Sexual Harassment by drawing support from CEDAW. It defines that : “Sexual Harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: Physical contact and advances; A demand or request for sexual favours; Sexually coloured remarks; Showing pornography; Any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Moreover, Sexual Harassment defined in Apparel Export Promotion Council vs. A.K. Chopra case made an analysis of this definition formulated in Vishaka case as under:
“Sexual Harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had effect of creating an intimidating or hostile working environment for her.”
Thus, these are some of the legal definitions of Sexual harassment of Women at workplace, which defines the ‘Sexual Harassment’ is basically the violation of human rights and the dignity of a woman.
Constitutional Perspective of Sexual Harassment of Women at Workplace
The Constitution of India guarantees all the basic and fundamental human rights set out in the universal Declaration of Human Rights, 1948 to its citizens and other persons. The meaning and content of the Fundamental Rights guaranteed in the Constitution of India are of sufficient aptitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. Each such incident of sexual abuse results in violation of “Gender Equality” and the “Right to Life and Liberty” and also the “Right to practice any profession.”
The Preamble is the key to the Constitution. It does not discriminate men and women but it treats them alike. The framers of the Indian Constitution were well aware of unequal treatment meted out to the fair sex, from time to time immemorial. In India, the history of suppression of women is very old and long which is responsible for including for general and special provisions for upliftment and development of the status of women. Certain provisions are specifically designed for the benefit of women. Undoubtedly, the preamble appended to the constitution of India, 1950, certain various objectives including the equality of status and opportunity to all the citizens. This objective has been inserted with the view to give equal status to men and women in terms of the opportunity. The Constitution of India guarantees equality of status and opportunities to men and women, preamble to the Constitution resolves to secure to all its citizens with Justice, Liberty, Equality and Fraternity
The Preamble of the Constitution declares to secure justice social, economic and to secure equality of status and opportunity in the field of education, public employment and participation in political field. There is also specific constitutional protection which prohibits the state from discriminating against women on the ground of sex in such areas as education and public employment and also directs the state to take special care to promote women’s welfare, particularly by protecting their health as mother and dignity as individuals.
Under Part III of the Constitution Fundamental Rights, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment. Part III of the Constitution of India Deals with the fundamental rights. The provisions regarding fundamental rights have been enshrined in Article 12 to 35, which are applicable to all the citizens irrespective of sex. However certain provisions protect the rights of women. The fundamental rights are regarded as fundamental because they are most essential for the attainment by the individual or his full intellectual, moral and spiritual status. per Justice Bhagwati,
These fundamental rights represent the basic values cherished by the people of this country (India) since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent”.
The Constitution of India guarantees a dignified status of every woman. Fundamental Rights are of sufficient amplitude to encompass guarantees against any kind of abuse, including sexual harassment of women at workplace.
Except it, The Directive Principles, in short, do not create any legally enforceable reaction for the enforcement of Directive Principles of the State Policy. The Court has time and reiterated the position that Directives.... are not enforceable in court as they do not create any justifiable rights in favour of any person; but the courts have a responsibility in so interpreting the Constitution as to ensure implementation of the Directives and to harmonise the social objective underlying the Directives with the individual rights.
So the Court has been trying to draw a balance and harmony between the fundamental rights and directive principles, because the directive principles of state policy are equally important as the fundamental rights. Directive Principles of State Policy provides the principles under Articles (Article 38(2)), 39 (d) etc. for the protection of women from sexual harassment at workplace
Article 51-A of the Constitution of India provides for a Fundamental Duty ‘To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or diversities; to renounce practices derogatory to the ‘dignity of women. ’So The Constitution of India, 1950 protects the women from sexual harassment at workplace.
National Legislations Dealing with Sexual Harassment of Women at Workplace
In the recent past the government has taken some positive steps to eliminate sexual violence against women both in public and private life. In 1983, the Criminal Law (Amendment) Act was passed with a view to protect women from certain categorises of Sexual exploitation.Although many forms of abuse against women have received more public attention in recent years, the sexual harassment which is just forms of abuse and which shares many similarities with other forms of abuse that women face has received a little or perhaps no public attention despite our commitment to protect women from all forms of exploitation and abuse.
Section 294 of Indian Penal Code covers the offence of doing of any obscene acts and singing, reciting or uttering any obscene songs in public place and provides punishment for doing so as three months imprisonment or with fine. This section has a very narrow application on sexual harassment and is primarily meant for checking eve-teasing.It is essential for the offence under this section that the offence must be committed in or near a public place. An Indecent exposure of one’s person in an omnibus, a public urinal, a public house or in a place where public goes no matter if they have any right to go or not, would be punishable under this section of IPC.
There are two Sections in the Indian Penal Code, which protects women against the sexual lust of men. One is section 376 which punishes the forcible ravishment of women, called rape, while section 354 punishes lesser acts of indecency such as solicitation for sexual intercourse, or the like. It is not the act of outraging the modesty that is made an offence under section 354 of IPC; in order to constitute an offence under this section, there must be an assault or use of criminal force to any woman with the intention or knowledge that the woman’s modesty will be outraged.
Under Indian Penal Code, 1860 Except Section 354, Section 354-A is inserted under the head of Sexual Harassment. Now Sexual Harassment is an offence under Indian Penal Code for which prescribed punishment is rigorous Imprisonment for a term of three years. Sexual Harassment includes Physical Contact and advances favour, showing pornography; making sexual coloured remarks. This section was inserted in Indian Penal Code after the Nirbhaya Case (Delhi Gang Rape) for the protection of women from eve- teasing and sexual exploitation. It protects the women from sexual harassment, whether at ‘workplace’ or outside. Moreover, Sexual Harassment also includes assault or use of criminal force to any women with the intention of disrobing or compelling her naked. Section 354B holds a great importance in rural areas where in many cases of disrobing a woman have been reported in the past.
Voyeurism is also a form of Sexual Harassment. Voyeurism is an act of watching, or capturing the image of a woman engaging in a private act. Private act includes such acts for which, in all circumstances, privacy is demanded. Such acts are of ‘doing sexual acts’ that is not of a kind ordinarily done in public. The same act is also punishable under IT Act 2000 because it is an offence by the means of camera and Mobile phones, but Section 354-C specifically provides punishment for Voyeurism. Section 354-C also covers those cases where a woman give consent to a man to capture and watches her private images but the said consent does not include to disseminate those captured photos to the third person.
Thus after the Criminal Law (Amendment) act 2013, Sections 354- A, 354-B, 354-C and 354-D provides the protection to women from sexual harassment at workplace or outside the workplace. It also includes the sexual harassment by the means of Internet, email and by the use of computer technology. A person who insults the modesty of a woman in a public place is guilty of public nuisance, one whose act goes beyond the words and gestures may be guilty of assault or use of Criminal force punishable under Section 354 IPC. Section 509 applies only to an act which is not punishable either as one or the other but which is nevertheless an outrage on female modesty. Such would be the singing of an obscene song, the making of an indecent proposal, or the exposure of one’s nude person.
Sexual Harassment and Rape are two coincide of the same coin. Both show the power of the man to dominate that of woman. Both have one victim ‘women’. Both are barbaric in nature, but many people extenuate sexual harassment to rape, just because the victims are not physically harmed. But both have the same objective- to undermine the integrity of victim; physically as well as mentally.Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassment on women) would try their desire. However it is also not true that all cases of sexual harassment are such – where the accused is guilty of conceiving the intention of sexual intercourse.
The Criminal Procedure Code, 1973 provides certain provisions for the protection of women from sexual harassment, so that a woman cannot be sexually harassed by the police Officers, who are engaged in the duty of making Arrest, search and taking the statement of the witnesses in the due process of the law For this purpose Criminal Law (Amendment) Act 2008, Criminal Law (Amendment) Act 2010 and Criminal Law (Amendment) Act 2013 plays a very important role. Accordingly, if a woman confined in such circumstances as appear to amount an offence, then any District Magistrate, sub-Divisional Magistrate or a Magistrate of 1st Class may issue a search warrant and the person to whom such search warrant is directed may search for the person so confined and the person, if found, shall be immediately taken before a Magistrate who shall make such order as in the circumstances of the case seems proper. For the purpose of avoiding the sexual harassment by the police Officer, special provisions for the arrest of a woman has been made under the Criminal Procedure Code. In making an arrest the police officer or the other person making the same shall actually touch or confine the body of the person to be arrested unless there is a submission to the custody by word or action. But where a woman is to be arrested, she could be touched only by the female police officer, and for making an arrest of a woman after sunset and before sunrise, the woman police officer shall obtain the prior permission in writing of the Judicial Magistrate of the first Class. Similarly, where there is a need of a search of a woman who is reasonably be suspected of concealing about her person any article for which search should be made, then the search of that woman should be made by another woman with strict regard to decency. It is a well settled rule of the Criminal Procedure that at the time of Investigation, a police officer who is doing such investigation can call a person to his or any adjoining police Station but a woman cannot be called to a police station for the purpose of recording her statement. Such police officer has to visit her residence for recording her statement
It is pertinent to mention here that the Criminal Law (Amendment) Act, 2013 has amended the Code of Criminal Procedure (CrPC) by inserting many provisions consistent with the new provisions and sections added under IPC. The offences under Section 376, Section 376A, Section 376B, Section 376C, Section 376D and Section 376E of the Indian Penal Code, 1860 shall be tried as far as possible by a Court presided over by a women, as per new proviso inserted under Section 26 of CrPC, taking into account the sensitivity of the case and degree of understanding that a woman may exhibit in these cases. Taking into account the fear element and insecurity in a woman below the age of eighteen years who has been subjected to rape or other sexual offence in giving evidence, the same shall be recorded in the absence of the accused while at the same time ensuring the right of cross-examination of the accused, as stated after the amendment of Section 273 of CrPC.
There has been substitution of new Section for Section 114A in the Indian Evidence Act, presuming the absence of consent in certain prosecution of rape under section 376 of IPC, wherein women alleges orally before the court about the absence of consent. Indian Evidence Act consists certain provisions for the prevention of sexual harassment against women. There have been few changes under Indian Evidence Act, bought by Criminal Law Amendment Act, 2013 for the protection of women. Non-inclusion of the character of the victim or any of her previous sexual experience with any person in considering the issue of consent by the victim in a prosecution for offence under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D or Section 376E of the Indian Penal Code, 1860, quashes the means adopted by the accused for trying to escape liability on these grounds. In addition, during the cross examination of the victim, it shall not be permissible to adduce evidence or to put questions as to general immoral character, or previous sexual experience with any other person for proving such consent or the quality of consent. This may even ensure that a victim may not be subjected to repeated mental torture and embarrassment for being inflicted upon such heinous offence.
Thus, these are the provisions under the criminal Law for the protection of women from sexual harassment, so many changes have been introduced in the Criminal Law under Criminal Law (Amendment) Act 2013, but these changes are not enough to provide the safe environment to women at Workplace or at any other place. It becomes essential to introduced strict or corporeal punishment to the accused of the outraging and insulting the modesty of a woman and for the incidents of rape and also to protect the women from sexual harassment.
Except the above mentioned law’s, there are some other important legislations which deals with the sexual harassment of women at workplace. A law on ‘Indecent Representation of Women (Prohibition) Act 1986’ was passed to combat this evil, but women continued to be exploited for economic gain. This Act is also applicable on the companies. If any company or manufacturing establishment used any indecent label and make any indecent representation or advertisement, then such company etc. can be held liable under this Act. The Information Technology (Amendment) Act 2008 has reformed the law of obscenity in India to a greater extent. The combined effect of Sections 66-E, 67, 67-A and 67-B are that online obscenity has been brought within the legal regime. Information Technology Act 2000 contains certain provisions for preventing the Sexual harassment against women. Section 66-E of the Act provides the punishment for the violation of privacy. Section 66-E of the Information Technology Act, 2000 provides punishment for capturing, Publishing or transmitting the image of private area or the image of naked person. If any woman feels that her image was captured or transmitted by any person of her workplace, she can take an action under Section 66-E of Information Technology Act, 2000. It is an Act which provides protection to her from sexual harassment at workplace. Thus, Information Technology Act, 2000 enlarges the area of obscenity and includes within, depiction of sex activities.Similarly this Act provides the protection to women from ‘Stalking.’ Stalking is a form of sexual harassment of women as it contains the element of monitoring the women through Internet, e-mails and computer technology.
Highlighting retrospectively, keeping in view the desirability of a Commission for Women at the national level, the National Commission for Women Act, 1990, was passed. The Protection of Human Rights Act, 1993 also provides the protection to the women from sexual harassment at workplace. The ‘Sexual Harassment of Women (Protection, Prohibition and Redressal) Act, 2013 was passed taking in view and the protection of human rights and the dignity of women. Even, Immoral Traffic (Prevention) Act, 1956 provides the punishment for the sexual exploitation and harassment of women. If a girl or woman forcibly keeping in the work of prostitution or flesh market by any person, such person can be punished under Immoral Traffic (Prevention) Act 1956.
Judiciary on the menace of Sexual harassment of Women at Workplace
The vibrant judiciary exalted the dignity of working women by issuing directions for providing safe environment at the workplace to ensure protection of female employees from sexual harassment. These directions were given in the Vishaka case. In the absence of specific legislation on the subject, the Supreme Court took upon itself the ‘guidelines and norms’ and stressed that such guidelines be treated as law within the meaning of Article 141 of the Constitution. The Court has defined, having regard to the definition of “women rights” in the Section 2(d) of the Protection of Human Rights act 1993. “Sexual Harassment” as including any unwelcome sexually determined behaviour (whether directly o by implication) like physical contact and and advances, a demand request for sexual favours, sexually coloured remarks, showing pornography and any other unwelcome physical, verbal or non-conduct of sexual nature. After this landmark case, the Supreme Court of India in number of cases tried to define and prevent the evil of sexual harassment of women at workplace through its various decisions.
The Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013:
Actually, it was the case of Medha Kotwal Lele and Ors. vs. Union of India (Writ Petition (Criminal) Nos. 173-177), which led to the making of the Act. In this judgment, the Hon’ble Supreme Court highlighted the non-compliance and non - adherence to the Vishaka guidelines in workplaces in India and urged the need for legislative enactment in this direction.The main objective of the passing of Act was that with more and more women are joining workforce, so as to ensure safe, secure and enabling environment to every women, irrespective of her age, or employment status, free from all forms of sexual harassment by fixing the responsibility on the employer is the objective of the Act. Chapter-1 of the Act provides the conceptualised terms including the definition of employer, employee and workplace etc. It is a duty of every employer to prevent the Sexual Harassment of Women from his organisation. It also provides that the promise of preferential treatment or the threat related to the employment by the employer will also counted as Sexual Harassment of women.
Chapter–II of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 requires an employer to set up an ‘Internal Complaints Committee at each office or branch of an organisation employing at least 10 employees to hear and redress grievances pertaining to sexual harassment.
Chapter-III of the Act provides the provisions related to the Constitution and Jurisdiction of Local Complaints Committee. The Act provides for the constitution of Local Complaints Committee for the redressal of complaints of sexual harassment at workplace. It is the duty of every District Officer to constitute in the concerned district a local Complaints Committee for dealing with the cases of sexual harassment of those establishments where the internal complaint Committee has not been constituted. The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive the complaints of Sexual harassment. Such nodal officer is under obligation to forward such complaints of sexual harassment to the concerned local committee within 7 days, so that the committee can take action against the harasser as soon as possible.
Chapter-IV of the Act provides the procedure of making the complaint of Sexual Harassment. A Woman aggrieved of sexual harassment can make a complaint to the Internal complaints Committee or Local Complaints Committee along with the supporting documents and the names of the names and addresses of the witnesses. Chapter V of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 empowers the Internal Complaints Committee or Local Complaints Committee during the pendency of the inquiry to recommend to the employer, at the request of the aggrieved employee, interim measures for the prevention of any further harassment of a woman. These are the basic things which should be taken into consideration at the time of determining the quantum of compensation. Though the monetary compensation cannot restore the dignity of a woman but it may help her only in coming out of distress and meet other expenses which may arises out of the incident of Sexual harassment.
Thus, to ensure that the protections contemplated under the Sexual Harassment Act do not get misused, provisions for action against “false or malicious’ complaints have been made. The Sexual harassment Act provides that if the Internal complaints Committee or the Local Complaint Committee concludes that the allegations made was false, malicious, the complaint was made knowing it to be untrue or forged or misleading has been provided during the inquiry, disciplinary action in accordance with the service rules of the organisation may be ken against such complainant. Chapter VI of the Act provides the Employer’s Obligations and Duties. Chapter VII of the Act provides the duties and powers of District Officer to monitor the timely submission of reports furnished by the Local Committee; or to take such measures as may be necessary for engaging non- governmental organisations for creation of awareness on sexual harassment and the rights of the women. Chapter VIII of the Act contains the miscellaneous provisions which provide that the Committee should prepare and submit the annual reports to the employer and the District Officer. It also provides that if an employer fails to constitute an Internal Complaint Committee or does not comply with the requirements prescribed under the Sexual Harassment Act, a monetary penalty of up to 50,000 may be imposed on him. A repetition of the same offense could result in the punishment being doubled and/ or de-registration of the entity or revocation of any statutory business licenses. So it is mandatory to comply with the provisions of the Act.
To Conclude, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 is a very positive step for the protection of women from such type of crimes in India. But even after the passing of this Act there are so many high profile cases of sexual harassment happens in India. The case of Tarun Tejpal is one of the high profile cases. In a five star hotel, investigating Officer Sunita Sawant has charged Tejpal under the Offence of Sexual Harassment and for taking advantage of his official position and also for rape. From this incident it is clear that even though many legislations have been brought forwarded by the government, but it has not been able to effectively prevent Sexual harassment against women at workplaces. So for this, not just legislations are enough, an effective participation from the public side is also equally important.
The Sexual Harassment of Women at Workplace is a problem not only between the two individuals- the harasser and the harassed, but is also an organizational problem. Since it occurs within the groups, such as academic institutions, commercial organizations and government agencies, it is essential that multidimensional and intervention programmes both at individual and organizational levels, need to be emphasised. At Organisational level control strategies, the academic institutions, commercial organisations and government agencies should be required to design and set up effective complaint system to deal with the charges of sexual harassment. Under the general policy, the organizations must assume the responsibility for the sexual misconduct of their employees as regards the payment of compensation to the victims of sexual harassment. Sexual Harassment of women at workplace has become such an evil which cannot be abolished only through the passing of Legislation on it. But it demands the cooperation of the society as well as the cooperation of employer for protecting the women from sexual harassment at workplace by providing safe and healthy working environment to her. In the cases of Sexual Harassment at Workplace, sometimes women feel shy in facing of publicity, procedure and delay in criminal system, for them the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 is much effective, but it needs much alterations, so that women can easily go through the procedure provided by the Act for the disposal of complaints under the Act.
# Suman Gupta, “The Legal Issues in Sexual Harassment,” CPJ Law Journal, Volume. Iv, July 2014
# See, The Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1967; Article 1
# iber_tk14-150_418-428, Available at: http://sibresearch.org/uploads/2/7/9/9/2799227/riber_tk14-150_418 428.pdf, Visited on 12/12/2014
# AIR 1997 SC 3011
# (1999) 1 SCC 759
# Kalindri, “Women as victims of sexual harassment at workplace”, civil and Military Law Journal, Volume 49, No.3, July – September 2013, at P. 240
# Maya Majumdar, “Protecting our Women-Safeguarding Rights: The legal Response”, Vol. II, 2001, p 104
# S.R. Myneni, “Women and Law”, 2008, p.15
# Maneka Gandhi vs. Union of India, AIR 1978 SC 597.
# Sonal Shankar, “Need for specific legislation on protection of women from sexual harassment at workplace in India” Cri.L.J May 2012 at P. 132
# Supra, note 45, p. 4030
# Suman Gupta, “ The Legal Issues In Sexual Harassment”, CPJ Law Journal, Volume -4 July 2011, p.13
# Subhash Chandra Singh,” Sexual Harassment of Women in the Workplace: Need for a c\Comprehensive Legislation”, CriLJ 1998 at p.3
# The Indian Penal Code 1860, Section 294 deals with Obscene Acts and Songs
# Sonal Shankar, “Need for Specific Legislation on Protection of Women from Sexual Harassment at Workplace in India” Cri. L.J 2012, at p.133
# Hari Singh Gaur, “ Penal Law in India”, (2008) , at p. 2303
# The word ‘Rape’ has been substituted by ‘Sexual. Assault, by the Criminal Law (Amendment) Act 2013 for making the same offence gender- neutral
# Hari Singh Gaur,” Penal Law in India, (2008 )at p. 3408
# The Criminal Law (Amendment) Act, 2013
# Indian Penal Code 1860, Section 354-B
# id. Section 354-C,
# id, Section 354-C, Explanation-1
# The Criminal Law (Amendment) Act, 2013
# The Indian Penal Code 1860;see Section 294
# The word ‘Rape’ has been substituted by ‘Sexual Assault’ by the Criminal Law (Amendment) Act 2013 for making the offence of rape as gender neutral.
# Sexual Harassment and Rape, Available at – http:// www.legalserviceindia.com/articles/rape-laws.htm,
# Visited on 19-11-2014 at 12:00 pm
# The Criminal Procedure Code 1973;Section 97
# Id, Proviso, Section 46(1)
# Id, Section 46(4)
# Om Prakah Tewari,“Women’s Rights in India”,(2002), at p. 123
# The Indian Evidence Act, 1872, Section 53A
# Id, Section 7
# Inserted by the Information Technology (Amendment) Act 2008
# The word ‘Privacy’ has the same meaning as envisaged under Article 21 of the Indian Constitution, but this Act widened the scope of ‘privacy’ by including in it the ‘use of technology’, which covers the capturing , publishing or transmitting the image of any private area of any person without his /her consent.
# inserted by Information Technology (Amendment)Act 2008, Section 67-A
# Manoj Kumar Sadual, “Sexual Harassment of Women at Workplace: A Critique,” Cri. L.J MARCH 2006, at p. 75
# See at: Rupan Deol Bajaj vs. Kanwar Pal Singh AIR 1996 SC 309; Apparel Export Promotion Council v.A.K. Chopra AIR 1999 SUPREME COURT 625; Miss C.B Muthama vs. Union of India AIR 1979 SC 1868; Air India vs. Nargesh Mirza AIR 1981 SC 1829; Chairman Railway Board vs. Mrs. Chandrima Das AIR 2000 SC 988
# riber_tk14-150_418-428, Available at: http://sibresearch.org/uploads/2/7/9/9/2799227/riber_tk14-150_418-428.pdf
# Suman Gupta, “The Legal Issues in Sexual Harassment”, CPJ Law Journal, Volume-iv, July 2014, p.11
# The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013; Section 2(g)
# Id; Section 2 (f)
# Id; Section 2 (O)
# The presiding officer of the committee shall be a woman, two members shall be from amongst employees who have had experience in social wok or have legal knowledge and one member shall be from amongst non- governmental organisations committed to the cause of women. Any woman aggrieved of Sexual Harassment can file her complaint before the Internal Complaint committee.
# District Officer may be District magistrate or Additional District Magistrate or the collector or Deputy Collector as notified by the Appropriate Government.
# Women Street Vendors and the women domestic workers can make a complaint before the local complaints committee because no internal committee can be constituted for them.
# The Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act 2013,Section 6(2)
# Such complaint must be in writing and where such complaint cannot be made in writing, the presiding officer or any other member of the committee is under an obligation to render all the reasonable assistance to the woman for making the complaint in writing and if the complaint is written by any other person then it is mandatory to read over the complaint before the aggrieved woman. If the woman is unable to make a complaint because of her mental or physical incapacity, or death, then her legal heirs can make a complaint on her behalf. Such complaint must be filed within a period of three months from the date of the occurrence of the incident of sexual harassment. on the receipt of the complaint from the aggrieved woman, the Committee, before starting the Inquiry tried to settle the matter between women and the respondent through conciliation, on the request of the woman or otherwise. If settlement arrived between the parties then no further inquiry shall be conducted by the Committee but if no settlement does not arrived between the parties, the steps for further inquiry will initiated by the Committee.
The Committee, on the receipt of the complaint sent a copy of the complaint to the respondent within 7 days. Upon receipt of the copy of the complaint the respondent should file his reply to the complaint along with his list of documents and the names and addresses of the witnesses within 10 working day. The inquiry has to be completed within 90 days from the receipt of the complaint. The inquiry report has to be issued within 10 days from the date of completion of inquiry. The employer is under obligation to act on the recommendations of the Committee within 60 days of the receipt of the inquiry report. Appeal against the decision of the Committee is allowed within 90 days of the date of the recommendations
# Such measures are as: Transfer of the aggrieved woman or the respondent to any other workplace; Granting leave to the aggrieved woman up to a period of three months in addition to her regular leave entitlement; or Restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report. Such duties may be transferred to other employees.
The Act of 2013 provides following punishments to the respondent who held liable for the sexual harassment of woman at workplace -: Respondent should be punished in accordance with the service rules for the sexual harassment; If the organisation does not have any service rules, then disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service should be taken against the respondent. From the wages of the respondent deduction of compensation payable to the aggrieved woman should be made.
The Act also provide the provision for the payment of compensation to the aggrieved woman and the amount of such compensation should be determined on the basis of – The mental trauma, pain, suffering and emotional distress caused to the aggrieved employee; The loss in the career opportunity due to the incident of sexual harassment; Medical expenses incurred by the victim for the physical / psychiatric treatment; The income and status of the alleged perpetrator; and Feasibility of such payment in lump-sum or in instalments.
# Rupan Deol Bajaj vs. K.P.S Gill, AIR 1996 SC 309
# The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Section 14; Where the organisation does not have service rules then the disciplinary actions such as apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service should be taken against the complainant.
# Ibid Section 19; These obligations are as under: Provides the safe working environment to the woman employees; Display conspicuously at the workplace, the penal consequences of indulging in act that may constitute sexual harassment and also to display the composition of the Internal Complaint Committee; Display the names and contact numbers of the Complaint Committee; Organise workshops and awareness programs at regular intervals for sensitising employees on the issues and implication of the workplace sexual harassment and organising orientation programs for members of the Internal Complaint Committee; Provide necessary facilities to the Internal Complaint Committee for dealing with the complaint or conducting an inquiry; Provide assistance to the aggrieved woman as she chooses to file a complaint in relation to an offence under the IPC or any other law; Treat sexual harassment as misconduct under the service rules and initiate action for the misconduct
# Internal Complaints Committee and Local Complaints Committee
# The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013; Section 21
# Id; Section 26
# Also see Subhash Chandra Singh, “Sexual Harassment of Women in the Workplace : Ned for a Comprehensive Legislation”Cri.L.J 1998, at p.40