Inappropriate behaviour at the workplace does not only make the workplace unreliable and threatening for women, but it also discourages their ability to convey themselves in the present contending world in accordance with the circumstances. The nature of social construct a male member has in the society continuesto justify the violence that is happening against women.
“The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was India’s first legislation that particularly raised the issue of sexual harassment at the workplace. In this year, 2013 there was also the promulgation of the criminal law amendment act (2013), which has criminalized offences such as sexual harassment stalking and voyeurism
In 1997, in the landmark verdict of Vishaka and others v. the State of Rajasthan, the Supreme Court of India defined sexual harassment at the workplace, well-definedanticipatory, prohibitory and redressal measures, and gave directions towards a legislative authorization to the guidelines proposed.
Sexual Harassment includes but is not limited to the following:
1. Actual or attempt of rape or sexual assault.
2. Unwanted intentional touching, leaning over, cornering or pinching.
3. Unwanted sexual banter, jokes, remarks or questions.
4. Whistling at someone.
5. Kissing sounds, howling and smacking lips.
6. Touching an employee’s clothing, hair or body.
7. Touching or rubbing sexually against another person.
The scope of the present Act
The present Act prescribes the constitution of internal committees comprising of a female as the presiding officer and other members made up of one-half females. There is also provision for another district level ‘local complaint committee’ for receiving complaints from workplaces with less than ten employees. Internal Complaint Committee or Local Complaint Committee members will hold their position not exceeding three years from the date of their nomination or appointment. But this Act falls short of Vishakha’s judgment on numerous critical fronts and due to these controversial clauses in the Act; the Government has come in for sharp criticism by the Justice Verma Committee Report. The Act prescribes that The Internal Committee, before initiating an investigation under Section 11 and at the request of the pained woman take steps to reconcile the matter between her and the respondent through conciliation.
However, taking into consideration the unequal position of women in society, this provision may be abused. This also violates the mandate that is prescribed by the Supreme Court in Vishakha, which was a guiding force to the State ‘to ensure a safe workplace/ educational institution for women’. Apart from it, according to this Act, it has also been clearly provided that information related to the inquiry cannot be provided under the Right to Information (RTI) and it is the third subject, after the National Nuclear Safety Regulatory Authority Bill and National Sports Development Bill- where restrictions have been imposed particularly on the RTI. Additionally, though it is made mandatory for the employers by this Act to constitute internal complaints committees for looking into all cases of sexual harassment in the workplace,the Act is faulty as it also envisions a situation in which the offender may be an employer, as in the Tehelka case thereby making in almost all cases the autonomous and unprejudiced functioning of the internal complaints committees impossible.
The Act also puts some emphasis on seeking to punish false and malicious complaints along with the new rule that has been framed under this clause stating that the committee that has been formed by an employer on finding theaccusation of sexual harassment to be malevolent or based on forged papers can punish the women even with the cessation of their jobs. Though it is clearly outlined in the Act that simple incapability to authenticate a claim would not be punishable, it has been found out that the existence of this clause along with the latest rule of punishing for false and malicious complaints will inexorably deter the women complainants from filing any complaints as it is sought by the executor to ascertain in almost every complaint that the complaint is bogus and woman may be hounded for her inability to prove their allegations. Section 14 stipulates to penalise a woman for filing a bogus complaint. Such a stipulation is a completely insulting provision and is intended to nullify the purpose of the law.
However, implementing a restraint does not mean creating antagonistic surroundings which will make every employee anxious about filing a complaint. Employees must be confident to bring into picture everything, which is uncomfortable and disagreeable to them. The ambition is to avert the exploitation of the provisions designed to guard women at the workplace. This deterrence cannot be made by setting an illustration of someone who was punished for filing a malicious complaint as every employee who files a complaint under this Act is protected by the provision providing for secrecy.
First significant instrument here is that of awareness. The employer needs to generate alertness amongst its employees regarding the penalty of filing a malicious complaint. Employees need to be appropriately trained about the dissimilarity between complaints, which are not proven, and complaints which fall under the class of being malicious. Every instance a complaint is filed/ is about to be filed, the employee needs to be reminded of the cost of filing a malicious complaint. If guidance events (conferences, seminars, awareness programs etc) are held on the subject of Sexual Harassment, consequences of filing a malicious complaint under the Act also needs to be made clear.
Requisites after filing the complaint
Once a complaint has been filed, it is very significant to not assume maliciousness. If the administration has any intelligence or information that indicate a conspiracy or spiteful intent behind a grievance, it is practical that conciliation be encouraged and appropriately guided. Conciliation should not be suggested or imposed by the organization, but the person who brings the charges should know that she has a right to choose for conciliation. Conciliation is an alternating means of dispute resolution where an effort is made to resolve the dispute without a face-off or further hardship. If the person who filed the complaint indicates a purpose to opt for conciliation, an impartial and experienced conciliator should meet the parties independently in an endeavor to resolve their differences. This procedure needs to be properly monitored in order to diminish the violence of the settlement procedure and extortionist claims. Focal point needs to be on condition that suitable apology and arriving at an agreement; and not on monetary compensation – which is in any case barred by law. But if it doesn’t work out as intended, one needs to remain for the ICC to submit its Inquiry Report before taking any pace.
Due to the character of the work at hand, ICC needs to do its job very well. This is not very simple because it is hard to differentiate a complaint with no virtues with that of a complaint with malicious intent. Therefore, it is greatly suggested that the members of ICC are trained about how proof needs to be appreciated and what are the recommendations, which need to be prepared.
Evidence, which comprise accounts of behaviour, messages & e-mails, should not be taken out of their framework, but considered contextually. The state of affairs that led to such proof needs to be appreciated and correlated appropriately to the matter at hand so that its context can be comprehended.
Vishakha v. State of Rajasthan-In this case, the petitioner, was employed with an Indian government-owned development bank who had filed a complaint of sexual harassment against the General Manager of the Bank who was also her supervisor. However, there was no action on the part of the employer. Thus, to get justice, she took her case to the Trial Court where the Court acquitted the accused for a reason stated as lack of the medical shred of evidence. By virtue of which so many women’s groups and organizations went for appeal against the judgments, and finally public interest litigation was filed in theSupreme Court of India against sexual harassment at the workplace. Therefore, the contentions put forward by the employee however challenged the validity of the order before the Court under Article 226 of the Constitution of India and that a higher punishment should be imposed on the Supervisor as well. This landmark case raised so many issues in the state of affairs of sexual harassment that took place at a workplace and the subject which was raised stated that whether the employer had any liability in the case of sexual harassment by its employee or to its employees at a workplace or not. Therefore, the Supreme Court held that the occurrence of sexual harassment of a woman at a workplace would be a violation of her fundamental rights of gender equality and right to life and liberty. The court concluded in its judgment that such an act would be considered as a violation of women’s human rights.
Usha C.S v. Madras Refineries– In this case, the Madras High Court witnessed a complaint of sexual harassment made by the employee of Madras Refineries Ltd, which was a public sector undertaking. The employee stated that she was denied her study leave with pay, salary, and promotion since she refused the advances of the general manager of her department. Further, the complaint committee was established, but the employee continuously delayed the inquiry hence it was stated that her allegations of sexual harassment were purely a weapon used to negotiate for a promotion, study leave and pay which was opposed to company policy. After inspecting the facts, the court held that the employee’s allegations with regards to her promotion and study–leave was unjustified as both decisions arose in accordance with the company policy. The bench further urged the other courts to carry in mind the facts of each case individually without assuming that the woman is a victim and also stated that similar to Domestic Violence Cases and Dowry Harassment Laws there are a massive number of people who are jeopardized with false prosecution. It is equally difficult for a man who has been falsely implicated in proving his innocence in a similar way as a woman find it burdensome to accept and tell the people if she has been assaulted sexually
The Delhi High Court, in Anita Suresh v. Union of India & Ors,in recent times imposed a fine of INR 50,000 on a lady who had filed a grievance of workplace sexual harassment but was unable to establish any evidence or witnesses to authenticate her case. The petitioner was functioning as an Assistant Director with ESI Corporation. The petitioner filed a complaint to the Director-General of ESI Corporation claiming workplace sexual harassment by the accused. A second occurrence was mentioned stating that the accused told the petitioner to come unaccompanied in the male toilet to confirm the shortcomings in the presence of the employees and other members. An Internal Complaints Committee was constituted to scrutinize the grievance of the petitioner
The Committee scrutinized the petitioner, who could not remember the names of any of the persons present at the instance of the aforesaid incidents. The petitioner was shown the appropriate papers relating to the staff members present on that day but still, she could not remember the names.
Failing to prove anything that was even slightly associated with her case made the case look like a frivolous one. It became an effort to outline and contaminate the record of the accused. The employee record of the petitioner also was brought forward, which evidently pointed that she was not an worker who regularly followed the rules of manner, and the complaint hence reeked of ‘ulterior motive’. The case was decided against the accused to prove him not guilty, as it was found that none of the witnesses corroborated with the petitioners’ testimony from the day when the alleged workplace sexual harassment had taken place. Hence, she was fined INR 50,000 for filing the frivolous complaint.
Regardless of many years of consideration, lawful activity, and support, this examination of information, research, and experience demonstrate that inappropriate behavior stays a genuine and inescapable issue crosswise overall industry areas and work environments. We found that no division stays immaculate by lewd behavior, nor unaffected by its effects: Sexual badgering harms the lives, wellbeing, monetary freedom, and chances of innumerable exploited people, and costs organizations in lawful charges, however in lost efficiency, spirit, viability, and talent. By and by the time is over of talk to verify the working women against lewd behavior; it’s a high time to adhere to the laws to shield the working ladies which will, finally, offer a positive hint to set up a created and dynamic culture.
Even though it is beyond the realm of imagination to expect to prepare and change the demeanor of everybody, it is surely conceivable to prep and changes the frame of mind methodologies of some based. Further, women’s associations should assume an urgent job to make lawful mindfulness among the majority. They ought to associate with neighborhood individuals in spreading mindfulness about their genuine rights and responsibilities.
The POSH Act, 2013 was enacted with the reason of helping the sufferers of sexual harassment seek speedy justice. But, it is awful to see the unashamed misuse of the law in order to satisfy some individual vendetta and needs stringent measures, such as one imposed by the Honourable High Court in this case. Frivolous cases squander the time of the Court and augment the burden of pendency as well. Substantial fines and restrictions/prohibition need to be imposed for filing fake cases so that there is no loss of reputation of the individual being accused of such atrocious crime and no loss of court time as well
Due to these reasons, the question of enforcing this legislation in informal, unregulated workplaces would remain.
The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practicing advocate having experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience, he wants to share this beneficial information for the individuals having any issues with respect to their related matters .
Kishan Dutt Kalaskar
Advocate (Retired Judge)
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