The Sexual Harassment at Workplace Bill 2012 was passed in Lok Sabha on September 2012 and in Rajya Sabha on February 2013. 15 years after a landmark judgment by Supreme Court in 1997 and guidelines famously known as Vishaka Guidelines which set forth processes for handling sexual harassment against women at workplace and years of campaign against sexual harassment at workplace, the act provides a legal framework for complaints related to sexual harassment. Among other features, the Act calls for implementation of Internal Complaints Committee in enterprises having more than 10 workers and Local Complaints Committee for small enterprises and unorganized sector. The bill defines sexual harassment as
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature
We discuss with Madras High Court Advocate Vaigai on the background of the bill and provisions of the bill.
Can you give background of the Sexual Harassment at Bill and how it came about?
When Bhanwari Devi’s case came to the court, there was no law dealing with sexual harassment at workplace. There was only the criminal law regarding violence against women. However there were difficulty in prosecuting under the criminal law. An NGO took it(Bhanwari Devi’s case) to court and Supreme Court for the first time viewed the problem as work related issue and not merely as a crime against women. This is significant because it involves women’s economic independence and impacts women’s financial independence notwithstanding the criminal aspect. In an innovative judgment, the SC invokes the CEDAW principle (International Convention of the elimination of all forms of discrimination against women).The core of the convention is to eliminate all forms of violence against women one of which is violence at workplace. Normally the court is not bound by the international concepts unless the parliament adopts it through a legislative measure. But in this case, the court said for the first time that it is bound by the CEDAW using the endorsement under judicial norms and principles.
Since no law had been passed in this regard(sexual harassment against women), SC evolved a method of dealing with this guideline using the judicial norms. The court also invoked the principle under the Article 14 stating that any such vitiated environment in which a woman does not feel safe to work actually deprives her of equal opportunity to employment, which the state is mandated to provide. This gave rise to Vishaka Guidelines under which the employer should provide safety
Does the sexual harassment bill provide a comprehensive measure for sexual harassment against all working women?
The existing bill draws up on the Vishaka Guideliness but falls short in several areas. One such shortcoming is the nature of unorganized sector itself. Even though the bill provides for district and taluk level committees for handling complaints where the companies do not setup internal complaints committee (For ex where company is less than 10), what about agricultural sector and remote locations such as plantations?
Even in organized sector such as the garment sector, because of unfair labour practices, the employers have ghettoised the working place such that there is no unionisation taking place. In one of the cases involving Sumangali scheme, very young girls are being employed and there is no permanent work force. These girls live in hostels within the premises and work in deplorable conditions. In the Sumangali case, when we asked why the Vishaka Guidelines is not implemented in the factory and hostel, the employers replied that there are no male workers involved.
The other major lacuna in the bill is the absence of Labour department in the bill. Any workplace act should strengthen the existing institutions that deal with labour. But the Labour department is nowhere in the picture in this bill. It is left to the rules of the bill if any to include the department. In my opinion, any Labour law should mandatorily include the Labour department and the enactment of the bill should be also brought under the Labour department. Such an effort could also address yet another lacuna in the department itself. i.e the lack of women officers in Labour department and lack of women inspectors.
The malicious intent clause is a major problem of the law. This should not have been included in the bill even though it states that when a woman is unable to substantiate her case with evidence, it is not malicious intent. This(malicious intent clause) will impede women from speaking out on the issue. As it is, the victims usually have a problem speaking on this with their colleagues let alone their supervisors. Already normal processes of law deal with issues such as false documentation. There is no need to include this explicitly.
The Act is also silent on establishments such as judiciary, legislature, and army. Already, there was a case in Madras High Court where there has been exemption sought against implementation of Vishaka Guidelines in judiciary.
There is no mechanism for ensuring the broad awareness of the law. Earlier we used to have broadcasts of such important laws in movie theaters, Doordarshan and All India Radio. Poor enactment of the law also stems from poor awareness of the law.
There is an intent towards conciliation and/or monetary compensation in the Act. Is this desirable?
The SC judgment and the subsequent Vishaka Guidelines does not provide for conciliation and hence this intent in the act is quite surprising. I am not happy at the conciliation process of the Act. You cannot use compensation as a mechanism for injustice in such cases. This will only help the employers to pressurize the victim to accept a compensation and withdraw or close the case. See what happened in the 4 year old rape case(In Delhi). When the parents went to file a case, one of the police officer asked them to accept a cash of Rs 2000 and not file the case. And given the mindset of our community, there is no guarantee that that women is not pressurized to accept the compensation. Most of the time, this pressure comes from the family itself, who ask the women to either keep quiet, look for alternate employment rather than pursue justice.
What is the appeal process for the woman if she feels that her case has not been sufficiently handled by the committee?
Then the woman has to access the court.
For more information on the Act,