New sexual harassment law difficult to implement

Loopholes and inadequacies could well lead to overall ineffectiveness of the new Act to prevent sexual harassment at workplace in addressing the issue

minu

Minu Dwivedi | January 8, 2014


Protests in the aftermath of the Dec 16, 2012 gang rape in Delhi led to the new law.
Arun Kumar/ Governance Now

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.

Comments

 

Other News

A trowelful of empowerment

When her husband died last year, 60-year-old Chakkamma was not sure whether she would be able to have some money of her own: she has a son who looks after her, but she wanted to maintain a degree of independence. Opportunity came knocking when the Tamil Nadu government, as part of its Pudhu Vaazhvu (or new

Should Shiv Sena MP Ravindra Gaikwad be arrested for assaulting an Air India employee?

Should Shiv Sena MP Ravindra Gaikwad be arrested for assaulting an Air India employee?

Railways suffered over Rs 33,000 crore loss on passenger service: CAG

  The Railways was unable to meet its operational cost of passenger and other coaching services. During 2014-15, there was a loss of Rs 33,821.70 crore on passenger and other coaching services. The freight services earned a profit of Rs 38,312.59 crore which indicated that 88.28 percent

“Return land to tribals after mining is over”

Seasoned BJP parliamentarian Nand Kumar Sai, who took charge as the chairperson of the National Commission for Scheduled Tribes (NCST) on February 28, has his work cut out for him. Archana Mishra caught up with Sai, 71, on his first day in office where he

Should there be automatic termination as member of parliament if that person takes oath as minister/chief minister in a state?

Should there be automatic termination as member of parliament if that person takes oath as minister/chief minister in a state?

Ganga, Modi and people’s unwavering faith

When the truth was a few steps away from Modi’s gaze In November 2014, prime minister Narendra Modi made his first visit to his constituency Varanasi and launched a massive cleanliness drive at Asi ghat, which was covered in mud and silt. When locals sa

Video

Current Issue

Opinion

Facebook    Twitter    Google Plus    Linkedin    Subscribe Newsletter

Twitter