It’s over a month since the sexual harassment of women at workplace (prevention, prohibition and redressal) Act-2013 and the rules made under it were made effective on December 9, 2013. While this is a significant milestone in India’s attempts to take the idea of women at workplaces and reinforcing gender equality measures more mainstream, implementation of the new law in its current form is fraught with several challenges.

The Indian Penal Code, 1860, makes sexual harassment a cognisable criminal offence (loosely put, a crime in which the accused can be arrested without a warrant). Under IPC, an employer can get an FIR 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 the 2013 Act, though it is the statutory duty of an employer to provide a safe working environment at the workplace (including insuring safety of women colleagues from persons coming into contact at the workplace), an employer is not authorised to take suo motu cognisance of acts of sexual harassment at workplace.

Consequently, as per the Act, 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 IPC for sexual harassment at workplace against an alleged perpetrator only if the aggrieved woman so desires, and not otherwise.

There is a thin dividing line between healthy sexual attraction and sexual harassment which is unwelcome and unsolicited. The Act ignores this reality by not even touching upon intra-office consensual relationships between work colleagues and thereby, gives rise to multiple cases where mutual consenting intimate relationships gone sour have led to sexual harassment complaints.

The Act requires every establishment employing 10 or more persons to constitute an internal complaints committee (ICC) for each workplace. This committee needs to have at least four members, of which three should be employees and one should be a non-employee. Besides, at least half the members of the ICC should be women and it should be headed by a senior-level woman employee of that workplace.

In case a senior-level woman employee is not available for a particular workplace then such a person can be nominated from another workplace of the establishment, according to the Act. Hence, an establishment with departments, units, branches or offices on different premises needs to constitute an ICC for each such department, unit, branch or office, as the case may be.

But these riders make the Act completely overlook the fact that a particular workplace (department or branch office) may have no senior-level woman employee, or the requisite number woman employees to constitute the ICC. Many establishments are facing practical difficulties in constituting a committee.
The Act takes care to exclude monetary settlements for a victim and the accused to arrive at conciliation. However, there are no checks to prevent unscrupulous employers from misusing the conciliation provisions to avoid an inquiry and brushing the matter under the carpet by convincing or coercing a victim to opt for conciliation and thereby settle the issue discreetly.

In addition, the Act does not prescribe any timeframe to conduct and complete this conciliation, or to implement the settlement, if any, arrived at through conciliation. Hence, a complaint can gather dust for months till an inquiry is initiated into it under the Act.

Further, no appeal can be made against an order of settlement arrived at through conciliation. Thus, an employer aggrieved with such an order has no alternative but to implement it.

While the rules prescribe disciplinary action(s) that may be taken against a perpetrator found guilty of sexual harassment, or a complainant who makes a false or malicious complaint or submits forged or misleading documents, it omits to prescribe disciplinary action(s) that may be taken against a witness who makes a false or malicious complaint or submits forged or misleading documents.

The Act is not clear on whether a second conviction for the same offence will make an employer liable to be punished with twice the amount of fine previously imposed or cancellation, withdrawal or non-renewal of the business licence or registration, or with both.

Lastly, though the Act requires an annual report to be filed by the ICC on cases of sexual harassment filed and disposed of during each calendar year, no timeframe is prescribed for such filing. The Act is also not clear on whether an employer needs to prepare an annual report concerning the sexual harassment cases pertaining to his organisation.

These loopholes could well lead to overall ineffectiveness of the Act and rules in addressing sexual harassment at workplaces. To prevent this, the legislative machinery should consider making suitable amendments to the Act.