CHAPTER - VII

CONCLUSIONS AND SUGGESTIONS

“I measure the progress of a community by the degree of progress which women have

achieved.”

- Dr. B. R. Ambedkar

India is now a fast growing economy. Its output growth has accelerated to 7.5%. 1 As

against this scenario, regrettably, the Indian Labour market displays several striking negative

features. It is marked by a very low rate of female labour force participation with

considerable variants in rates of female labour force participation across Indian states,

exacerbated by a large share of women and men working in the informal sector. 2 All these

contribute to creation of a situation wherein gender equality in the sphere of public and

private employment is being put to jeopardy.

The importance of gender equality in the economic development of a nation has long

been acknowledged. The Global Gender Gap Report of the World Economic Forum for the

year 2015 finds a positive nexus between gender equality and per capita GDP; the level of

competitiveness and human development being the prime indicators. While we recognize the

fact that women’s participation in the work force is important for the development of our

nation, there arises a need to take a look at the share of women that are employed or seeking

to be employed. It is a proven economic reality that gender gap in labour force participation,

entrepreneurial activity or education, should not be allowed to exist, lest it would impede

economic growth and social dynamics.

1
http://www.wsj.com/articles /india’s-economic - growth - hits – 4 – year – hi – 143202911. Last visited on
19.07.2016.
2
https://www.imf.org/external/pubs/ft/wp/2015/wp1555.pdf. last visited on 29.03.2016.

233
 One major reason for lack of women’s participation in the labour force that emerges is

sexual harassment in the workplace i.e. when the work place becomes a site of violence and

sexual harassment against women. Sexual Harassment has its consequences for women in

that it denies women’s equality in the work place and is discriminatory for every woman who

has the right to work in a safe environment marked by equal pay for equal work, benefits and

opportunities for advancement. Sexual Harassment in the work places also presents an

ongoing and growing risks to any business operation. It is a form of gender based violence in

which women are targeted because of their ‘gender’. At least in part, it emanates from

women’s subordinate status prevailing in the society. Women due to their gender are usually

exposed to sexual harassment by men in the form of “unwelcome sexual advances, physical

contact, verbal suggestions or other forms of sexual harassment”, which places an obstacle on

the way to an equitable society. ILO research has suggested that the women who are most

vulnerable to sexual harassment in the work place are young, financially dependent, single or

divorced or have a migrant status in the community in which they live. 3

Women, by and large, stayed at home in the past. They were docile and generally

subordinate to men. Men were considered as the pivot, both in the family and society. With

changing times and impact of science, technology and marked increase of education among

women, the number of women in public spaces, as doctors, lawyers and other professionals

continue to swell and they tend to excel according to their capacity. However, despite having

similar working capabilities they do not always have compatible working environments. On

the contrary, quite often they face hostile working environments, not merely on account of

discrimination and wage differences, but also largely by sexual harassment at the workplace.

Such harassment comprises of a combination of incidents and occurrences with varying

degrees of intensity and frequency.

3
ILO, Sexual Harassment at work (2007), accessed March 2, 2014, http://www.ilo.org/wcmsp5/groups/public/--
-ed_norm/---declaration/documents/publication/wcms_decl_fs_96-en.pdf. last visited on 18.03.2017.

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 That sexual harassment detrimentally affects the dignity and self respect of women is

an acknowledged fact. Every woman, in different aspects and facets of her life including her

work or job or employment, is vulnerable to this phenomenon. It is largely due to the

negligible presence of women in the average workforce (25.7%)4 and consequently not being

in a position or strength to have a voice in the system as a whole.

As against the above mentioned reality, there was no specific law in India for the

prevention of sexual harassment in the work place. Hence the Supreme Court of India, when

the occasion was available in the Vishakha case, passed directions and laid down preventive

measures with a mechanism for redressal in the form of guidelines which became the law of

the land in terms of Article 141 of the Constitution of India. It is only sixteen years later that

the legislature woke up to the necessity and the Sexual Harassment of Women at Work Place

(Prevention, Prohibition, Redressal), Act 2013 was passed and brought into force.

This Act is a milestone event in the history of equality legislation that it makes

significant advances upon the Vishaka guidelines which place positive obligations upon the

employer to ensure that concrete steps are taken to spread awareness amongst the employees

about not just the existence of Complaints Committee, but also about the fact that Sexual

Harassment of Women at the work place is deprecated in no uncertain terms.

This Act, in its sum and substance puts the main directives of Vishaka judgment on a

statutory footing. It does make very congruent advances in its definitional framework, taking

cognizance of the fact that in today’s context many women work in the informal sector. The

prohibition of sexual harassment at the work place, be it public, private, formal or informal

sector of employment, is loud and clear under Section 3 of the 2013 Act. This prohibition of

sexual harassment at the work place is applicable to the country as a whole and will be a

4
2011 census of India – Data Women Participation Rate (Wpr). censusindia.gov.in last visited 28.6.2017

235
condition of employment of all persons employed in the formal or informal sectors of trade,

industry, commerce or other entrepreneurial venture of whatever nature.

Earlier, despite numerous judicial precedents closely following upon the heels of the

Vishaka Judgment, there was uncertainty in the matter and there was every possible

resistance to the application of the law against sexual harassment of women, especially in the

private sector.

While their significance cannot be underestimated, these judicial pronouncements and

the advances made by them still left a number of women in the universe of the work force

outside the protective cover of the law. This includes women working in rural areas, domestic

workers, small enterprises, the unorganized sector and those working in home based

industries. It also left out self employed women and those working in the new ‘flexible’

workplaces – out of their homes. In the global economic context, this reflected an increasing

number of women working outside the traditional workplace, characterized by the tenuous

contractual relationship and job insecurity.

This Act created an enforceable remedy for women employed in the private sector,

placing an obligation on ‘every employer of a work place’ to constitute ‘a committee to be

known as the Internal Complaints Committee: under Section 4. Failure to do so is an offence

under Section 26 of the Act’, and failure could invite a penalty of upto fifty thousand rupees.

This Act quite clearly takes into account the insecurity of employment and the

vulnerable nature of employment relationships in the new globalized economic context. It,

therefore, provides a definition of the work place comprehensively to cover workers in a

variety of employment relationships, including contract employment and outsourced jobs. In

distinction from various Labour Legislations, the applicability of the Act is not confined to

entities depending on the number of persons they employ. The definition of ‘employer’ and

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‘employee’ 5 are also inclusive and pervasive since they recognize all forms of employment

whether temporary, casual or permanent, whether contract or outsourced down the supply

chain, whether formal or informal. The organized and the un-organized sectors6 are both

covered by the law by now.

The definition of ‘workplace’ under the Act is wide enough to meet the existing and

future advances in the nature and combinations of emerging and possible future work and

economic relationships involving women workers, including within its purview any place that

may be or likely to be visited by the employed person in the course of the employment, which

includes even the transportation to and from the work place.

We can, while taking a closer look at the relevant provisions of the Act, also see that

the Act seeks to protect vulnerable workers who are otherwise not covered under or protected

by Labour laws and are also not unionized. Responding to demand raised by the women’s

movement, women domestic workers are also covered under the Act. The shortcoming,

however, being that in their case the only relief possible is a police complaint of sexual

harassment. Further where employers fail to set up Internal Complains Committees (‘ICCs’),

or where the entities are too small, the state machinery is mandated to provide Local

Complaints Committee (‘LCCs’) at the District level, with representative officers at the

Block, Tehsil, and Taluka level, to receive and inquire into complaints of sexual harassment

at the workplace. The present Act certainly has the potential to provide an effective redressal

mechanism to all affected women despite and beyond their social and economic situation,

including those who were previously unprotected by the Vishaka guidelines, such as

agricultural workers and women in rural areas. It is relevant that this potential of the new

legislation could have been realized with greater certainty if only a statutory linkage had been

5
See definition of “employer” in section 2(g) of the Act.
6
See definition of “un-organized sector” in section 2 (p) of the Act.

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created with the Unorganized Workers Social Security Act, 2008 and other legislations which

protect the rights of workers in the unorganized sector, and the mechanisms established by

each of these statues are dovetailed.

CONCLUSION

This Act is burdened by several in-built provisions which are capable of bringing

about its downfall. One negative feature of the Act is that the period of limitation for filing a

complaints under the Act is three months, which is extendable by a further three months “for

reasons to be recorded in writing.” 7 Neither Vishaka nor any of the judicial precedents which

followed Vishaka have ever envisaged laying down any period of limitation for filing

complaints of sexual harassment at the workplace, leave alone a period as restrictive as three

months extendable to a maximum of six months. The Act also provides for a process of

‘conciliation’, to be conducted by the Internal Complaints Committee “at the request of the

aggrieved woman” prior to initiating an inquiry8. It is too obvious that a provision for

conciliation is completely incongruous in a law which purports to provide a redressal

mechanism for women aggrieved by behavior which the statute itself prohibits. Apart from

that, the statute fails to adopt the more nuanced approach to conciliation which is provided in

the Civil Procedure Code, 19089, where the conciliation / mediation procedure is handled by

a body quite separate from that adjudicating the dispute. The most harmful provision which

tends to nullify the very effectiveness of this statute is section 14 that provides for

punishment for filing false or malicious complaints, leading false evidence or producing false

7
Section 9(1) of the Act.
8
Section 10 of the Act.
9
Section 89 of the Civil Procedure Code, 1908 provides for arbitration, conciliation, judicial settlement
through Lok Adalats, and mediation of disputes through specially constituted bodies set up for this purpose
under different procedures rules.

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documents. This provision has been criticized by the Verma Committee Report 10 as a “red-

tag” provision, and its existence on the statute books is most unfortunate indeed.

The statute is diluted and rendered ineffective in its provisions on the issue of

providing compensation to women who have been sexually harassed at the workplace.

Although it lays down for the first time the key guiding factors for the calculation of

compensation in such cases (such as mental pain and trauma, loss of career opportunities, and
11
so on) its failure to hold the employer himself liable to compensate a woman employee

who has been harassed unjustly spares the employer of the penal consequence for having

allowed such prohibited conduct to be perpetrated in his establishment, thereby easing the

employer of the responsibility of vigilantly maintaining a non hostile environment for his

women employees.

The present Act, as it is drafted, framed and passed, focuses primarily on employment

relationships rather than adopting a holistic approach towards the workspace and the

conditions to be necessarily created therein for the sake of multiple players therein. This is a

key limitation of the statute. This leads to immense confusion among professional, technical

and educational institutions, particularly in relation to students, who are not ‘employed’, even

while legitimately forming part of the rubric of such institutions while pursuing their

education. Questions have arisen whether the Act applies to such institutions at all.

Educational and learning related institutions and establishments as well as professions

such as practice of medicine and law are all governed by their own statutes, and continue to

be so governed, the present Act having not been extended in its applicability to such

institutions and professions and the like.

10
Supra n.3.
11
See section 15 of the Act.

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 This includes universities, which are governed by their own statutes and ordinances.

The legal framework governing the relationship of the teacher and the taught with respect to

Universities and other educational institutions which are places of learning, is built on a

slightly different foundation from other regular workplaces. Universities do not experience or

undergo the usual employment situations. Therefore, they need to have policies, frameworks

and mechanism which preserve their inclusive nature to a much greater degree, in order to

ensure that the atmosphere of academic rigour and freedom of thought are protected. Several

Universities, accordingly, have proscribed sexual harassment which can occur in respect of a

wide array of relationships and interactions beyond the pure employment scenario. In

addition, they have proscribed sexual harassment which discriminates against persons on the

basis of their sexual orientation or gender identity, and have evolved Sexual Harassment

Prevention Committees in which the different stakeholders in the university space 12 are given

representation. Members of the Internal Committees are therefore elected rather than

nominated. It may be noted that Universities have plenary law making power, and

ordinances dealing with sexual harassment have the status of law, and hence are a complete

code of legislation, independent of the Act which is not yet made applicable to such

institutions beyond pure employment situations.

Ideally, there ought to have been a specific provision in the statute making the statute

applicable to professional, technical, educational and other such institutions and public

servants and that the statute will form part of the University Ordinances and service rules and

conduct rules, where such Ordinance and service rules exist, if the same had been amended in

terms of the directions issued from time to time by the Supreme Court to amend such

12
See for instance:Rules and Procedure of the Gender Sensitization Committee against Sexual Harassment
(GSCASH), Jawaharlal Nehru University, Ordinance XV-D “Prohibition of and Punishment for Sexual
Harassment” of the University of Delhi. The mechanisms provided under both these ordinance are
representative in character, and the definition of sexual harassment is gender neutral, therefore including same –
sex harassment within its purview.

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ordinances and service rules and further that the provisions of the Act shall prevail and

whatever is contrary to and inconsistent with the Act shall be void to the extent of

inconsistency. Given that some institutions have already proceeded with a contrary

interpretation13 this question will require a quietus from the Supreme Court as and when a

suitable petition may come to be filed before it. In the alternative, it may also lie in the hands

of the Parliament to amend the Act suitably to make it applicable to professional, technical,

educational and other such institutions in respect of non employment situations as well. Until

such time, the Act must be construed to being limited to women in employment relationships,

thereby leaving intact all other regulatory regimes in place where the Vishaka judgment must

be held to have full force and effect.

An in-depth analysis of Sexual Harassment of Women At Work Place (Prevention,

Prohibition, Redressal) Act, reveals the strengths and weaknesses of the various provisions of

the Act. It can be seen that certain provisions of the Act need to be amended and certain

provisions need to be inserted in order to make the statute effective enough in its

implementation to fulfill its objectives.

Unfortunately, the Act and the rules framed thereunder fail to take into consideration

that there can be considerable difference in the social and economic status of the parties on

either side to a complaint proceeding under the Act. Consequently, the framers of the statute

have failed to see and appreciate that a third party’s intervention, if allowed by the provisions

of the Act, can play a very important role where there is considerable difference in the social

and economic status of the parties. The Act and Rules, unfortunately, go no further in taking

13
In a mistaken impression that the Act governs Universities to the exclusion of pre-existing developments in
the law, the University of Delhi has issued a notification scrapping its Sexual Harassment Ordinance and has
proceeded to set up new Committees with nominated members. This is in spite of the clear statement in the Act
that it is ‘in addition to and not in derogation of existing law (see section 28), which means that where other
legal regimes operate, they will continue to operate, provided they are not inconsistent with Vishaka See
notification dated 9th January 2014, (Ref.No.Estab.II(i)/27/ACC/2006), where the University of Delhi notified
that the Act and the Rules framed thereunder “supersede the University Ordinance XV-D with immediate
effect”.

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this understanding of the nature of sexual harassment at the work place to its logical

conclusion. By its very nature, the act of sexual harassment at the workplace is discriminatory

against women for the reason that it generates a hostile working environment which affects

all women workers, indeed all employees, and not only the victim. To restrict the notion of

‘aggrieved woman’ to the person who has been specifically targeted and to exclude from the

operation of the law all the other employees, represents a serious failure of the law to live up

to its objectives. As the Act and Rules fail to enable third parties affected by the perpetration

of sexual harassment, such as the association representing the workers and / or the concerned

trade union to raise a complaint of sexual harassment in a situation where the victim is unable

to do so or does not want to make such complaint for her own reasons, the statute fails to

cover and provide for a very possible and likely situation. Therefore, an enabling provision

as in the 2000 Act and Rules for filing of complaints by the National Commission for Women

and the State Commission for Women the associations representing the workers and or the

concerned trade unions should be inserted, making a third party provision for initiating a

complaint on behalf of the victim.

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SUGGESTIONS

2013 Act on SHWW Act Suggestions

Section 2 Definitions

2 (f) The definition of “employee” does not

“employee” means a person employed at expressly include agricultural labourers

a workplace for any work on regular, and women in the armed forces. To avoid

temporary, ad hoc or daily wage basis, a gross injustice to agricultural workers

either directly or through an agent, who are the single largest female

including a contractor, with or, without component of workforce in the country,

the knowledge of the principal employer, Section 3 (1) of the Act covers the above

whether for remuneration or not, or mentioned category by stating that “no

working on a voluntary basis or woman should be subjected to sexual

otherwise, whether the terms of harassment at any workplace”. But the

employment are expresses or implied and wordings are very general in nature and

includes a co-worker, a contract worker, do not include specific categories, and, as

probationer, trainee, apprentice or called such, may lend themselves to different

by any other such name; interpretations leading to the exclusion of

certain categories of female workers.

Therefore, the provision should be

suitably amended by expressly including

agricultural labourers and women in the

armed forces in order to do

comprehensive justice to all sections of

the people.

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2 (n)

“sexual harassment” includes any one or

There is a lacuna in the definition clause
more of the following unwelcome acts or
in respect of unwelcome conduct of
behavior (whether directly or by
sexual nature. It is important to note that
implication), namely:-
the definition requires more clarity since

the present definition lends itself to any

i) physical contact and advances; or
interpretation of the word “unwelcome”
ii) a demand or request for sexual
which may even tend to defeat the very
favours;
purpose of the legislation. “Unwelcome”
or
as contained in the said definition must
iii) making sexually coloured remarks; or
give due weight to both objective as well
iv) showing pornography; or
as subjective criteria in order to ensure
v) any other unwelcome physical, verbal
that women of different perceptions and
or
comfort levels are given appropriate
Non-verbal conduct of sexual nature.
protection.

The following explanation may be

inserted in Section 2 (n) of the Act.

“Explanation: in determining whether

the behavior or the Act complained of is

unwelcome, due weight shall be given to

the subjective perception of the

complainant”.

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 The words unwelcome acts or

behavior are not explained in the

definition of sexual harassment at

workplace defined in the Act. They can

be qualified by the phrase “directly or by

implication” in Article 2 of Vishaka

guidelines. If it is done, such acts or

behavior may be seen to constitute sexual

harassment if such behavior comprises of

acts or words that, though innocent in

themselves, have sexual overtones.

2(o) This section primarily focuses on

“workplace” includes – employment relationships leaving

professional, technical and educational

(i) any department, organization, institutions particularly in relation to

undertaking, establishment, enterprises, students, who are not employed and this

institution, office, branch or unit which is section takes this lead in Section 2(a) (i).

established, owned, controlled or wholly There needs to be a holistic approach in

or substantially financed by funds providing non-hostile working

provided directly or indirectly by the environment.

appropriate Government or the local

Hence it is necessary to bring the
authority or a Government company or a
educational and learning related
corporation or a co-operative society;
institutions and establishments as well as

245
 professions such as practice of medicine

(ii) any private sector organization or a and law and other institutions in respect

private venture, undertaking, enterprise, of non employment situations as well. It

institution, establishment, society, trust, may be pointed out that Section 2 (o) (v)

non-governmental organization, unit or of the Act appears quite ambiguous as it

service provider carrying on commercial, includes the phrase ‘any place’ which is

professional, vocational, educational, of such wide amplitude and may bring

entertainmental, industrial, health market, third party’s residence /

services or financial activities including workplace or corridors of metro, airport,

production, supply, sale, distribution or bus stop or railways station into its

service; sweep. This renders it rather impossible

to establish or measure the extent of

iii) hospitals nursing homes; relationship and confuses the distinction

between the harassment by employee or

iv) any sports institute, stadium, sports by any visitor at the work place or any

complex or competition or games venue, other place visited by the employee in the

whether residential or not used for course of employment. The same should

training, sports or other activities relating be refined further by incorporating

thereto. relevant words or phrases so as to restrict

the possible numerous interpretations.

v) any place visited by the employee

arising out of or during the course of

employment including transportation

provided by the employer for undertaking

such journey;

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vi) “unorganized sector” in relation to

workplace means an enterprise owned by

individuals or self-employed works and

engaged in the production or sale of

goods or providing service of any kind

whatsoever, and where the enterprise

employs workers, the number of such

workers is less than ten.

Constitution of Internal Complaints 1) Section 4 of the Sexual Harassment

Committee: of Women Act which provides for

Section 4 constitution of Internal Complaints

(1) Every employer of a workplace shall, Committee fails to take into account the

by an order in writing, constitute a Vishaka judgment in its inclusion of a

Committee to be known as the “Internal third party. The provision in its Sub

Complaints Committee”. Clause 4 provides for inclusion of one

member from NGO, or associations

Provided that where the offices or committed to the cause of women or a

administrative units of the workplace are person familiar with the issues relating to

located at different places or divisional or sexual harassment in the Internal

sub-divisional level, the Internal Complaints Committee. The rationale

Complaints Committee shall be being that the presence of NGO member

constituted at all administrative units or will ensure neutrality and lack of bias

247
offices. since she / he is unlikely to be influenced

by the management.

Vishaka guidelines had specifically

provided for a third party presence who is

well versed with the issue of sexual

harassment to be included on the ICC;

whereas the present act only states NGOs

committed to ‘the cause of women’,

which is a vague term. For the

committee to benefit from the skilled

resource of the NGO member, it is

imperative that the third party member

has a sound understanding and sensitivity

of addressing complaints of sexual

harassment and is perceptive to its

nuances and the legal implications,

especially when the Act has made

provision for conciliation.

The Vishaka’s guidelines providing

for third party presence have to be

incorporated in Rule 4 to remove this

anomaly.

248
(2) The Internal Committee shall consist 2) The provision for constitution of

of the following Members to be Internal Complaints Committee, as far as

nominated by the employer, namely:- it does not speak about providing training

to the ICC members, is flawed as it is.

(a) a Presiding Officer who shall be a

Hence it is just and necessary that the
woman employed at a senior level at
members of the ICC had to be trained and
workplace from amongst the employees:
the rules framed under the Act should

incorporate such provision.

Provided that in case a senior level

women employee is not available, the

Presiding Officer shall be nominated

from other offices or administrative units

of the workplace referred to in sub-

section (1):

Provided further that in case the other

offices or administrative units of the

workplace do not have a senior level

women employee, the Presiding Officer

shall be nominated from any other

workplace of the same employer or other

department or organization;

(b) not less than two Members from

amongst employees preferably committed

249
to the cause of women or who have had

experience in social work or have legal

knowledge;

(c) one member from non-governmental

organizations or associations committed

to the cause of women or a person

familiar with the issues relating to sexual

harassment:

Provided that at least one-half of the total

Members so nominated shall be women.

3) The Presiding Officer and every 3) Further the amount prescribed by the

Member of the Internal Committee shall rules prescribing that the chairperson of

hold office for such period, not exceeding the LCC shall be entitled to an allowance

three years, from the date of their of Rs.250/- per day for holding the

nominations as may be specified by the proceedings and the reimbursement of

employer. travel cost incurred; it is further

prescribed that the members shall be paid

Rs.200/- per day along with

reimbursement. In this context, the rules

fail to take the ground reality into

account. The amounts fixed are so paltry

that it reflects the total disconnect of the

250
 bureaucracy which is involved in framing

of rules, with ground reality.

Therefore, it would be proper to

upwardly revise the fees structure in

conformity with the ground realties.

(4) The Member appointed from amongst 4) This Act is aimed at promoting gender

the non-governmental organizations or equality. But in its wording it

associations shall be paid such fees or continuously uses the male nomenclature

allowance for holding the proceedings of “he” and “him” rather than being gender

the Internal Committee, by the employer, neutral in its provisions in Section 4

as may be prescribed.

(5) Where the Presiding Officer or any (5) wherein it speaks about the

Member of the Internal Committee,- constitution of Internal Complaints

Committee and the tenure and removal of

(a) contravenes the provisions of section members thereof. It is more so since the

16; or Act provides that the presiding officer

shall be a woman, then the use of the

(b) has been convicted for an offence or word ‘he’ is most inappropriate.

an inquiry into an offence under any law The provisions in the Act containing

for the time being in force is pending such inappropriate descriptions using

251
against him; or male nomenclature need to be suitably

amended to become gender neutral.

(c) he has been found guilty in any

disciplinary proceedings or a disciplinary

proceeding is pending against him; or

(d) has so abused his position as to render

his continuance in office prejudicial to

the public interest, such Presiding Officer

or Member, as the case may be, shall be

removed from the committee and the

vacancy so created or any casual vacancy

shall be filled by fresh nomination in

accordance with the provisions of this

section.

Constitution and jurisdiction of Local As far as Section 6 of Act is concerned, it

Complaints Committee: contains ambiguous guidelines for

constitution of Local Complaints

Section 6 Committee. The Act provides that every

District Officer shall constitute a Local

(1) Every District Officer shall constitute Complaints Committee in the District. It

in the district concerned, a committee to also prescribes that the District Officer

be known as the “Local Complaints shall designate one Nodal Officer in

Committee” to receive complaints or every Block, Taluka, Tehsil in rural or

sexual harassment from establishments tribal area and ward or municipality in

252
where the Internal Complains Committee the urban area to receive complaints and

has not been constituted due to having forward the same to the concerned local

less than ten workers or if the complaint committee within a period of seven days.

is against the employer himself.

There is no mechanism to supervise,

oversee and ensure the proper functioning

(2) The District Officer shall designate
of the Local Committee and the Nodal
one nodal officer in every block, taluka
Officer. An internal check system should
and tehsil in rural or tribal area and ward
be put in place by suitable statutory
or municipality in the urban area, to
alteration in order to ensure the effective
receive complaints and forward the same
functioning of the Local Complaints
to the concerned Local Complaints
Committee in every district in collecting
Committee within a period of seven days.
complaints from every Block, Taluka,

Tehsil in rural or tribal area and ward or

(3) The jurisdiction of the Local
municipality in the urban area.
Complaints Committee shall extend to

the areas of the district where it is

constituted.

9. Complaint of Sexual Harassment.- The provision under Section 9

tends to defeat the very purpose of the

(1) Any aggrieved woman may make, in Act by placing an unreasonable time

writing, a complaint of sexual harassment restraint upon an aggrieved woman in her

at workplace to the Internal Committee if effort of starting the process by filing a

so constituted, within a period of three complaint. It is pertinent that neither the

253
months from the date of incident and in Vishaka judgment nor the catena of

case of a series of incidents, within a decisions following on the heels of

period of three months from the date of Vishaka ever contemplated or spoke of

last incident. any time limitation being imposed for

filing a complaint against sexual

Provided that where such complaint harassment. The judiciary, in its wisdom,

cannot be made in writing, the Presiding clearly understood the socio economic

Officer or any Member of the Internal reality involved in the process wherein

Committee or the Chairperson or any the aggrieved woman may be fettered or

Member of the Local Committee, as the prevented against initiating action on

case may be, shall render all reasonable account of her having been thoroughly

assistance to the woman for making the traumatized or put under other kinds of

complaint in writing: situational constraints. The courts, in this

context, have directly and indirectly taken

Provided further that the Internal cognizance of the fact that sexual

Committee or , as the case may, for the harassment at work place entails a

reasons to be recorded in writing extend relationship of dominance and servitude

the time limit not exceeding three between the perpetrator and the victim,

months, if it is satisfied that the and the resultant inability of the

circumstances were such which prevented aggrieved person to register a protest in

the women from filing a complaint within view of apprehended adverse

the said period. consequences in respect of her

employment in its conditions, prospects

(2) Where the aggrieved woman is unable and related issues.

to make a complaint on account of her

It is not understandable as to how and

254
physical or mental incapacity or death or why the authors who drafted the present

otherwise, her legal heir or such other Act failed to reckon with the facts

person as may be prescribed may make a relating to sexual harassment at the work

complaint under this section. place and consequently failed to provide

for a much longer time limit with power

This clause provides for making of to extend the same in the matter of filing

complaint of sexual harassment. It of complaint by an aggrieved woman. It

provides that any aggrieved woman may, is not easy for a woman in a vulnerable

at her option, make in writing a complaint position to gather her resources and find

of sexual harassment at workplace to the and tap support structures for the purpose

Internal Committee if so constituted, or of filing a complaint of sexual harassment

the Local Committee if an internal against a person in power and the process

committee is not constituted or if the necessarily would entail spending of

complaint is against the employer quite some time in her endeavour. It

himself. would amount to travesty of justice to put

a cap of a narrow time of three or six

It further provides that in a case where months on complaints by such aggrieved

such complaint cannot be made in women as it is likely to subvert the very

writing, the Presiding Officer or any objectives the statute concerned is

Member of the Internal Committee or the supposed to achieve.

Chairperson or any Member of the Local

It would not be out of place and in fact
Committee, as the case may be, shall
would be pertinent to compare Section
provide all reasonable assistance to the
354 A of Indian Penal Code 1860, as it
woman for making the complaint in
stands amended, which deals with sexual
writing.
harassment as an offence, prescribes a

255
 limitation of one to three years 14 with

It also provides that in a case where power to the court to extend the time

the aggrieved woman is unable to make a further in the interest of justice. A

complaint on account of her physical or provision similar to that is Section 354 of

mental incapacity or death or otherwise, IPC (use of criminal force or assault to

her legal heir or such other person as may outrage the modesty of a woman).

be prescribed may make a complaint

The drafters of the present Act under
under this clause.
consideration herein could have very well

drawn inspiration from the said

provisions of the Indian Penal Code and

could have adopted the same time frame.

2) The Act has to be amended to make it

mandatory that employers should device

a very clear Sexual Harassment

Prohibition and Prevention Policy; the

same should be adequately informed so

that each employee would know the

same; women employees should be able

to prefer complaints of sexual harassment

at the initial stage of harassment itself.

The statistical details and particulars on

the subject of sexual harassment of

women at work place should be uploaded

and updated in the NCRB data so as to

256
make it available under a separate head.

Complaints in this regard should be

considered seriously and should be dealt

with in accordance with the law on the

subject without deviation.

3) Time and again, anonymous or

confidential complaints are made to

employers in this country wherein

women may complain to a superior or a

colleague or even to a member of the

Internal Complaints Committee to the

effect that she was subjected to sexual

harassment or inappropriate behaviour by

the respondent therein; at the same time a

request may be made by the victim to

keep the matter between the complainant

and the recipient of the complaint and

that the same may not be divulged to

anyone. Such vacillating and unstable

behavior may be exhibited by an

aggrieved woman if the environment at

the work place is not gender neutral or

reassuring, making the woman employee

fearful of retaliation from the perpetrator.

In such cases, the ICC member should

257
be in a position guaranteed and

safeguarded by the statute so that the

member can assure the woman employee

that the employer / organization would

endeavour to keep the matter confidential

and reassuring that the provisions of law

does provide enough safeguards to ensure

that the confidentiality is guaranteed.

Suitable amendments should be made to

ensure this aspect of the matter.

Procedure for Registering Complaints:

(i) The mechanism for registering

complains should be safe, accessible and

sensitive.

(ii) All complaints must be brought by

the complainant in person. The following

exception will be admitted:

a) In cases of forced confinement of the

person, brought by another person on

behalf of the complainant, the committee

will examine whether an enquiry,

intervention or some other assistance is

258
needed.

b) In case of appeals where it is difficulty

for the complainant to travel in person to

the location of the appellate body.

c) In exceptional cases, third party/

witness complaints may be entertained. In

such cases, the committee will ascertain

whether the woman alleged to have been

sexually harassed wishes to lodge a

formal complaint. Once such a complaint

is received the committee shall proceed to

enquire into it as per the procedure

specified.

(iii) If the complainant wishes she can

be accompanied by a representative

(iv) Complaints can be lodged directly

with any member of the relevant

Committee against Sexual Harassment, or

through existing channels for lodging

grievances, such as the NCERT

259
authorities, academic and non-academic

staff association. If the complaint is made

through any such channel, the person to

whom the complaint is made should bring

it to the notice of the Committee within

two working days of its receipt by her /

him.

(v) A complaint can be directly

referred by the Director to the NIECASH.

However, in such cases, which will be

exceptional, the Director may record the

reasons for the same.

(vi) The complaint may be oral or in

writing. If the complaint is oral, it shall

be reduced in writing by the Complaints

Committee member receiving the

complaint and the same shall be

authenticated by the complainant under

her dated signature or thumb impression

as the case may be.

(vii) All complaints made to any

Committee member must be received and

260
recorded by the member, who shall then

inform the Chairperson about the

complaint, who in turn shall call a

meeting of the Committee.

(viii) All meetings of the committee will

be called by the Chairperson and a notice

of at least 5 working days must be given

for the meeting, in exceptional cases

emergency meeting may be convened as

per the requirement.

(ix) Within ten days of the receipt of a

complaint, the concerned Committee

Against Sexual Harassment must

determine whether a prima facie case of

sexual harassment is made out. It shall

carefully consider the complaint and may

hear the complaint and the defendant and

/ or any other relevant person to

determine whether an enquiry by the

Committee is to be instituted. If the

Committee considers it necessary to hear

the defendant at this preliminary stage it

261
 shall issue a notice to him in the

prescribed form for the purpose.

(x) No person who is complainant,

witness, or defendant in the complainant

of sexual harassment shall be a member

of a committee.

(xi) Any committee member charged

with sexual harassment in a written

complaint must step down as member

during the enquiry into that complaint.

(xii) If the committee against Sexual

Harassment decides not to conduct an

enquiry into a complaint it shall record

the reasons for the same in the minutes of

the Committee meeting. The Committee

shall make the same available to the

complainant in writing.

Section 10 - Conciliation. The process of Conciliation is a

method of resolving disputes and is

(1) The Internal Committee or, as the envisaged in the present Act as a

case may be, the Local Committee, may, permissible process by the provisions of

before initiating any inquiry under Section 10 thereof at a stage where the

262
section 11 and at the request of the inquiry under Section 11 thereof has not

aggrieved woman take steps to settle the been initiated. The same is possible only

matter between her and the respondent at the request of the aggrieved woman.

through conciliation: The objective behind this provision is to

put in place a platform to resolve the

Provided that no monetary settlement impasse or to stop continuation of the

shall be made as a basis of conciliation. harassment before the complaint is

proceeded with to the next stage

(2) Where a settlement has been whereafter a conciliatory process would

arrived at under sub-section (1), the become impossibility. The provision for

Internal Committee or the Local the process of Conciliation appears to be

Committee, as the case may be, shall founded on the reality that in many cases,

record the settlement so arrived and aggrieved women simply wish and hope

forward the same to the employer or the that the inappropriate conduct on the part

District Officer to take action as specified of the perpetrator stops at some stage

in the recommendation. before it becomes very serious so as to

make it possible for either party to work

(3) The Internal Committee or the in peace, thereby avoiding escalation of

Local Committee, as the case may be, the issue into a serious matter. Wherever

shall provide3 the copies of the a matter between two people working in

settlement as recorded under sub-section the same establishment or even between a

(2) to the aggrieved woman and the worker and an outsider can possibly be

respondent. resolved amicably, no effort should be

spared by the statutory mechanism,

(4) Where a settlement is arrived at namely, the committee, to so resolve the

263
under sub-section (1), no further inquiry same. It is common knowledge that many

shall be conducted by the Internal women would be too willing to accept an

Committee or the Local Committee, as apology by the respondent or an

the case may be. expression of remorse for having

indulged in inappropriate conduct and

This clause makes provision for leave the matter at that and give it a

conciliation. It provides that before quietus. But a word of caution becomes

initiating enquiry under clause 11 and at absolutely necessary here. For a number

the request of the aggrieved woman, the of reasons like cost effectiveness and

Internal Committee and the Local saving of time, a faster resolution,

Committee may take steps to settle the avoidance of involvement of unwilling

matter between her and the respondent witnesses and the like, Conciliation is a

through conciliation and where a process that appears to be a win situation

settlement so arrived and forward the for both the sides. But the possibility of

same to the employer or the District the aggrieved woman being pushed for a

Officer to take action as specified in the compromise either out of fear of

recommendation. consequences or by cringing away from

retaliation looms large and a woman may

It further provides that the Internal agree to a Conciliation for various

Committee or the Local Committee shall collateral reasons.

provide the copies of the recorded In matters of harassment and

settlement to the aggrieved woman and humiliation of woman and attempt to

the respondent and no further enquiry compromise the same is indeed yet

shall be conducted by the Internal another way in which the dignity of

Committee or the Local Committee. women is undermined. Such conciliation

264
process as prescribed by Section 10(1) of

the Act is in violation of mandate

prescribed by the Supreme Court

Vishaka, which gave a direction to the

State to ensure a safe workplace /

educational institution for women. Hence

the attempts to get justice cannot be

muscled by attempts at conciliation.

In view of the above, it is to be noted that

the aggrieved woman should not be

subjected to too much pressure by the

members of the statutory mechanism or

other mediator and it should be ensured

that monetary consideration is not the

basis of the Conciliated resolution.

Further the mediation process should not

be at the cost of the gender policy of the

organization concerned or it is such that

in the eye of law it is unacceptable by

known standards or the even scales of

justice. For this purpose, safeguards by

way of guidelines are to be incorporated

in the statute itself.

265
Section 11 - Inquiry into Complaints: As far as section 11 (3) is concerned,

which has enabled the Internal

(1) Subject to the provisions of section Complaints Committee to be given

10, the Internal Committee or the Local powers of a Civil Court for summoning

Committee, as the case may be, shall discovery and production of documents is

where the respondent is an employee, concerned, this amounts to colourable

proceed to make inquiry into the legislation because powers of courts

complaint in accordance with the cannot be simply conferred upon

provisions of the service rules applicable domestic committees particularly when

to the respondent and where no such rules the composition of the Internal

exist, in such manner as may be Complaints Committee does not have any

prescribed or in case of a domestic legal background.

worker the Local Committee shall, if

Further the Act does not specify any
prima facie case exist, forward the
training to the committee for fulfilling
complaint to the police, within a period of
these duties.
seven days for registering the case under
This is in distinction to the
section 509 of the Indian Penal Code (45
composition of Local Complaints
of 1860), and any other relevant
committee in which at least one member
provisions of the said Code where
has to preferably have a background in
applicable:
law or legal knowledge.

Provided that where the aggrieved Section 11 (4) provides that the inquiry

woman informs the Internal Committee under sub section 1 should be completed

or the Local Committee, as the case may within the period of 90 days. In the event

be, that any term or condition of the of inquiry not being completed within the

266
settlement arrived at under sub-section stipulated period, i.e., 90 days, no

(2) of section 10 has not been complied liability has been fixed on the employer.

with by the respondent, the Internal Hence a liability be fixed on the

Committee or the Local Committee shall employer which can be included under

proceed to make an inquiry into the Section 26 dealing with penalty.

complaint or, as the case may be,

forward the complaint to the police:

Provided further that where both the

parties are employees, the parties shall,

during the course of inquiry, be given an

opportunity of being heard and a copy of

the findings shall be made available to

both the parties enabling them to make

representation against the findings before

the Committee.

(2) Notwithstanding anything

contained in section 509 of the Indian

Penal Code (45 of 1860), the Court may,

when the respondent is convicted of the

offence, order payment of such sums as it

may consider appropriate, to the

aggrieved woman by the respondent,

having regard to the provisions of section

267
15.

(3) For the purpose of making an

inquiry under sub-section (1), the Internal

Committee or the Local Committee or the

case may be, shall have the same powers

as are vested in a civil Court under the

code of Civil Procedure, 1908 (5 of 1908)

when trying a suit in respect of the

following matters, namely:-

(a) summoning and enforcing the

attendance of any person and examining

him on oath;

(b) requiring the discovery and

production of documents ; and

(c) any other matter which may be

prescribed.

(4) The inquiry under sub-section (1)

shall be completed within a period of

ninety days.

268
Section 12 - Action during pendency of It is to be noted that focus should be more

inquiry – on the victim who goes through a lot of

mental trauma and the interim reliefs

(1) During the pendency of an inquiry, on
mentioned under Section 12 were meant
a written request made by the aggrieved
to make her comfortable during the
woman, the Internal Committee or the
inquiry process. Provision should also be
Local Committee, as the case may be,
made safety and security of not only the
may recommend to the employer to –
victim but also the witnesses including
(a) Transfer the aggrieved woman or the
prevention of their victimization during
respondent to any other workplace; or
and after the inquiry proceedings. This is

(b) grant leave to the aggrieved woman in order to protect the victim and

upto a period of three months; or witnesses from all sorts of pressure and

hostility.
(c) grant such other relief to the aggrieved

woman as may be prescribed. Though these steps which an aggrieved

woman may take up during the pendency

(2) The leave granted to the aggrieved
of inquiry. It all depends on whether the
woman under this section shall be in
aggrieved woman gives a written request
addition to the leave she would be
to the employer through Internal
otherwise entitled.
Complaints Committee or the Local
(3) On the recommendation of the Complaints Committee. There is no need

Internal Committee or the Local for the aggrieved woman to give a written

Committee, as the case may be, under requisition and it is the duty of the

sub-Section (1), the employer shall employer to create a safe environment

implement the recommendations made free of violence from the perpetrator to

under sub section (1) and send the report

269
of such implementation to the Internal the aggrieved woman. Once a letter is

Committee or the Local Committee, as given by the aggrieved woman, it will

the case may be. further widen the animosity between the

perpetrator and aggrieved woman.

Instead, the Internal Complaints or Local

Complaints Committee as the case may

be, may recommend to the employer

either the transfer of the aggrieved

woman or the respondent or grant leave

to the aggrieved women.

The section under 12(2) clearly says

that the leave granted to the aggrieved

woman under this Section shall be in

addition to the leave she would be

otherwise entitled. Though it is a positive

approach, the section failed to state that

that she will be paid accordingly for the

leave taken by her during pendency

of inquiry. Unless the aggrieved

woman is supported financially during

the leave period, she may have

constraints to work for the sake of her

livelihood.

270
Section 13 – Inquiry Report. Where the Internal Committee or the

Local Committee, as the case may be,

(1) On the completion of an inquiry under arrives at a conclusion that the allegation

this Act, the Internal Committee or the against the respondent has not been

Local Committee, as the case may be, proved, it shall recommend to the

shall provide a report of its findings to the employer and The District Officer that no

employer, or as the case may be, the action is required to be taken in the

District Officer within a period of ten matter. This is a divisive provision.

days from the date of completion of the

inquiry and such report be made available

The Internal Committee or the Local
to the concerned parties.
Committee should not recommend for
(2) Where the Internal Committee or the
any action and it is the employer who has
Local Committee, as the case may be,
to take action on the report. The Inquiry
arrives at the conclusion that the
Report should contain whether the
allegation against the respondent has not
complainant’s case is proved or not and /
been provide, it shall recommend to the
or whether the respondent has committed
employer and the District Officer that no
the wrong / misconduct or not. It is for
action is required to be taken in the
the employer to take a decision on the
matter.
inquiry report as per the service rules

(3) Where the Internal Committee or the concerned. Once the power of

Local Committee, as the case may be, recommending action is given in the

arrives at the conclusion that the hands of the Internal Committee or the

allegation against the respondent has Local Committee, then there are chances

been proved, it shall recommend to the of misusing the power vested in them.

271
employer or the District Officer, as the This would lead to further more

case may be- complications.

(i) to take action for sexual harassment This provision states that if the inquiry

as a misconduct in accordance with the report recommends for the payment of a

provisions of the service rules applicable sum from the salary or the wages of the

to the respondent or where no such respondent to the aggrieved women or

service rules have been made, in such her legal heirs it is deemed to be

manner as may be prescribed; compensation. The intention is to pay a

compensation for the pain and suffering

(ii) to deduct, notwithstanding
of the aggrieved woman. But it does not
anything in the service rules applicable to
make an obligation or duty on the
the respondent, from the salary or wages
employer to pay compensation for not
of the respondent such sum as it may
providing the aggrieved woman a
consider appropriate to be paid to the
harassment free work place.
aggrieved woman or to her legal heirs, as

it may determine, in accordance with the Further by ordering for recovery of a sum

provisions of section 15: as an arrear of land revenue to the

concerned District Officer would make

Provided that in case the employer is
the aggrieved woman run from pillar to
unable to make such deduction from the
post for the recovery of the compensation
salary of the respondent due to his being
Instead, a responsibility may be cast upon
absent from duty or cessation of
the employer for payment of
employment it may direct to the
compensation.
respondent to pay such sum to the

aggrieved woman: A right to claim compensation by the

victim should not alone be the employer

272
 Provided further that in case the but also against the State since there is a

respondent fails to pay the sum referred constitutional violation of Articles, 14,

to in clause (ii), the Internal Committee 16,19 and 21, in the event that the state is

or, as the case may be, the Local unable to secure safe conditions / safe

Committee may forward the order for spaces for women.

recover of the sum as an arrear of land

Though section 13 and 15 read with rule
revenue to the concerned District Officer.
6 of the Sexual Harassment of Women at

(4) The employer or the District Work Place (Prevention, Prohibition and

Officer shall act upon the Redressal) Rules speaks about

recommendation within sixty days of its compensation to the victim, either the act

receipt by him. of the rules fail to provide any

punishment to the respondent in the case

of a domestic worker. Hence an

amendment need to be brought

accordingly.

Section 14 - Punishment for false or Though the Provisos to Section 14 seems

malicious complaints and false to be a saving clause, the language of the

evidence. section seems to be deterrent. Looking

from different perspectives, it can be said

(1) Where the Internal Committee or the
that the provisions for punishment for
Local Committee, as the case may be,
false or malicious complaint or false
arrives at a conclusion that the allegation
evidence have been incorporated in
against the respondent is malicious or the
section 14 may deter frivolous complaints
aggrieved woman or any other person

273
making the complaint has made the but at the same time, may have deterrent

complaint knowing it to be false or the effect for genuine witnesses and / or on

aggrieved woman or any other person the complainants who may not gather

making the complaint has produced any enough evidence to prove her case.

forged or misleading document, it may

Most of the sexual harassment cases
recommend to the employer or the
happen in secluded places of the office or
District Officer, as the case may be, to
within the four walls of an officer’s room
take action against the women or the
and no culprit leaves any evidence while
person who has made the complaint
committing such an offence and most of
under sub-section (1) or sub-section (2)
the offices have no surveillance cameras
of f section 9, as the case may be, in
in each and every nook and corner.
accordance with the provisions of the
Unless there are eye witnesses, it is
service rules applicable to her or him or
impossible for the complainants to
where no such service rules exist, in such
support their complaint with evidence.
manner as may be prescribed.
While this being the case, the reading of

Provided that a mere inability to section 15 of the Act needs amendments

substantiate a complaint or provide as there are cases wherein the

adequate proof need not attract action complainant has been harassed for not

against the complainant under this proving the complaint; in such cases, the

section: complainants were kept under fear of

persecution for malicious intent.

Provided further that the malicious

intent on part of the complainant shall be Also, a distinction has to be made

established after an inquiry in accordance between the false and malicious

274
with the procedure prescribed, before any complaints. The provision penalized even

action is recommended. false complaints which may not be

malicious. The complex position of an

(2) Where the Internal Committee or
aggrieved woman who has to muster
the Local Committee, as the case may be,
great courage to come forward to file a
arrives at a conclusion that during the
case of sexual harassment. Further given
inquiry any witness has given false
the unequal nature of relations with the
evidence or produced any forged or
employer, it would not be easy for a
misleading document, it may recommend
woman to prove her case. Hence a
to the employer of the witness or the
distinction needs to be made to false and
District Officer, as the case may be to
malicious complaints. For any false
take action in accordance with the
complaint, no punishment may be
provisions of the service rules applicable
prescribed. However, if it is proved that a
to the said witness or where no such
complaint has been fled with malicious
service rules exist, in such manner as may
intent, only then action against the
be prescribed.
aggrieved woman may be considered as it

affects the credibility of the accused.

Section 14 appears to penalize the woman

for filing a false complaint and such

provision is completely abusive provision

and is intended to nullify the objective of

law.

275
Section 15 - Determination of The plain reading of Section 15of the Act

compensation. would certainly give hope for the victims

of sexual harassment at work place as it

For the purpose of determining the sums considers various factors for

to be paid to the aggrieved woman under determination of compensation. But when

clause (ii) of sub-section (3) of section it speaks about the income and financial

13, the Internal Committee or the Local status of the respondent, while

Committee, as the case may be, shall determining the compensation, there is a

have regard to – possibility of negating the hardships or

agony faced by the aggrieved woman.

(a) The mental trauma, pain,

Further the section does not speak about
suffering and emotional distress
the employer’s liability on payment of
caused to the aggrieved woman;
compensation to the aggrieved woman.
(b) The loss in the career opportunity
At every stage, from section 1 to the last
due to the incident of sexual
provision of the Act there is no word
harassment;
about the employer’s obligation to pay
(c) Medical expenses incurred by the
the victim since it is the duty of the
victim for physical or psychiatric
employer to have a harassment-free work
treatment;
environment.
(d) The Income and financial status
At least when the respondent’s income
of the respondent.
and financial status are lower, an
(e) Feasibility of such payment in
amendment to the said act has to be
lumpsum or instalments.
brought in, to make the employer liable to

pay compensation according to the

276
 damage caused to the victim.

Moreover, it is the duty of the state to

ensure harassment-free workplace for the

women and hence the state has to take the

responsibility of creating a fund to

rehabilitate or compensate the victims.

Section 16 - Prohibition or making Earlier Right to Information Act can be

known contents of complaint and used for the purpose of availing

inquiry proceedings.- information regarding the case on sexual

harassment. But now the use of Right to

Notwithstanding anything contained in
Information Act for availing information
the Right to Information Act, 2005 (22 of
regarding the sexual harassment cases has
2005), the contents of the complaint
been barred by the 2013 Act.
made under section 9, the identity and

address of the aggrieved woman, Justice secured by any victim can be

respondent and witnesses, any accessed as it is a matter of public

information relating to conciliation and interest. Only the identity of victim is not

inquiry proceedings, recommendations of to be disclosed. There is no question of

the Internal Committee or the Local highlighting only the reported cases and

Committee, as the case may be, and the hiding the other cases, the employer is

action taken by the employer or the required to include the information

District Officer under the provisions of regarding cases filed and their disposal in

this Act shall not be published, the annual report of the organization.

277
communicated or made known to the

public, press and media in any manner:

Provided that information may be

disseminated regarding the justice

secured to any victim of sexual

harassment under this Act without

disclosing the name, address, identity or

any other particulars calculated to lead to

the identification of the aggrieved woman

and witness.

Section 17 - Penalty for publication or Where any person entrusted with the duty

making known the contents of to handle or deal with the complaint,

complaint and inquiry proceedings.- enquiry or any recommendations or

action to be taken as per the Act,

Where any person entrusted with the duty
contravenes the provisions of Section 16
to handle or deal with the complaint,
relating to prohibition of publication or
inquiry or any recommendations or action
making known the contents of complaints
to be taken under the provisions of this
and inquiry proceedings, he or she shall
Act, contravenes the provisions of section
be liable for penalty in accordance with
16, he shall be liable for penalty in
the provisions of service rules applicable
accordance with the provisions of the
to the said person or where no such
service rules applicable to the said person
service rule exist in such a manner as
or where no such service rules exist, in
prescribed by rule 12 of the said Act; the
such manner as may be prescribed.

278
 employer shall recover a sum of

Rs.5,000/- as penalty from such person.

But in any case, the employer has to

submit his annual report containing the

details of complaints and action taken

upon that and hence without disclosing

the identity of the complainant, the victim

of sexual harassment can be disclosed

and that does not warrant any penalty.

Section 18 - Appeal The Act gives a right of appeal to the

person aggrieved. It is always better if

(1) Any person aggrieved from the onus or proving the case be on the

recommendations made under sub- employer.

section (2) of section 13 or under clause

(i) or clause (ii) of sub –section (3) of

section 13 or sub –section (1) or sub

section (2) of section 4 or section 17 or

non-implementation of such

recommendations may prefer an appeal to

the Court or tribunal in accordance with

the provisions of the service rules

applicable to the said person or where no

such service rules exist then, without

prejudice to provisions contained in any

279
other law for the time being in force, the

person aggrieved may prefer an appeal in

such manner as may be prescribed.

(2) The appeal under sub-section (1) shall

be preferred within a period of ninety

days of the recommendations.

Section 19 - Duties of employer.- Every The role and duty of the employer in the

employer shall – matter of prevention of incidences of

sexual harassment and in the matter of

(a) provide a safe working environment at the process to deal with the complaints of

the workplace which shall include safety sexual harassment is a vital role played

from the persons coming into contact at from a position of high responsibility.

the workplace. That is why the Hon’ble Supreme Court

laid so much of stress on how the

(b) display at any conspicuous place in employer has to do his duty / discharge

the workplace, the penal consequences of his responsibilities in matters of sexual

sexual harassment; and the order harassment. Put in the very own words of

constituting, the Internal Committee the Supreme Court as contained in the

under sub-section (1) of section 4; Vishaka judgment, the court held, “it is

necessary and expedient for employers in

(c) organize workshops and awareness work places as well as other responsible

programmes at regular intervals for persons or institution to observe certain

280
sensitizing the employees with the guidelines to ensure the prevention of

provisions of the Act and orientation sexual harassment of women”. The

programmes for the members of the Supreme Court further found that it is the

Internal Committee in the manner as may duty of “the employer, other responsible

be prescribed; person in work places or other institutions

to prevent or deter the commission of the

(d) provide necessary facilities to the acts of sexual harassment and to provide

Internal Committee or the Local the procedures for the resolution,

Committee, as the case may be, for settlement or prosecution of acts of

dealing with the complaint and sexual harassment by taking all steps

conducting an enquiry; required”

Therefore, it is necessary that the

(e) assist in securing the attendance of
emphasis of the Act should be on
respondent witnesses before the Internal
‘prevention’ of sexual harassment rather
Committee or the Local Committee, as
than on the post facto remedial measures
the case may be;
after the incidents have occurred. As

prevention is always better than cure, the

(f) make available such information to
Act should have made provisions for
the Internal Committee or the Local
effectively preventing incidences of
Committee, as the case may be, as it may
sexual harassment from taking place and
require having regard to the complaint
the present stress on the inquiry process
made under sub-section (1) of section 9;
should be shifted to the process of

prevention of the mischief. In this

(g) provide assistance to the woman if

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she so chooses to file a complaint in context, the emphasis must have been on

relation to the offence under the Indian the responsibility of the employer rather

Penal Code (45 of 1860) or any other law than on the duty of the employer in order

for the time being in force; to create, maintain and promote a healthy

and non hostile conduct at the work

(h) cause to initiate action, under the place. It is desirable that it is ensured no

Indian Penal Code or any other law for incidence of sexual harassment ever takes

the time being in force, against the place. That the process after it takes place

perpetrator, of if the aggrieved woman so will be effective is not a guarantee or

desires, where the perpetrator is not an deterrent against the commission of the

employee, in the workplace at which the misconduct. Unless provisions for

incident of sexual harassment took place; prevention are made and implemented

effectively the harassment will happen

(i) treat sexual harassment as a and would repeat. It will be extremely

misconduct under the service rules and difficult to remedy the situation at a later

initiate action for such misconduct; stage. Prevention of sexual harassment

provides a better work place with better

(j) monitor the timely submission of productivity and therefore would amount

reports by the Internal Committee. to sound sense of business. It is so

because sexual harassment will have a

The clause lays down duties of terrible negative impact for the employer

employer. It provides that every and his establishment apart from being a

employer shall – menace, a grave threat for the women

employees.

provide a safe working environment at

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the workplace which shall include safety The language used in Section 19 has lost

from the persons coming into contact at sight of the difference between duty and

the workplace; (b) display the order responsibility and failed to emphasize the

constituting the Internal Committee at prevention of sexual harassment on the

any conspicuous place in the workplace; part of the employer. Merely imposing a

(c ) organize workshops and awareness duty on employer to build awareness,

programmes at regular intervals; (d) train or display an office order about a

provide necessary facilities to the Internal Committee’s existence is not the same as

Committee or the Local Committee, as enrolling them to responsibly do so.

the case may be, for dealing with the

The Act should have put more emphasis
complaint and conducting inquiry; (e)
on prevention by placing it prior to the
assist in securing the attendance of
chapter on ‘Inquiry into Complaints’.
respondent and witnesses before the
There is a need to emphasise
Internal Committee or the Local
‘responsibility’ of the employer over
Committee, ass the case may be; (f) make
‘duty’ so as to promote healthy
available such information to the Internal
workplace conduct.
Committee or the Local Committee as it
 Both Section19 (g) and (h) speaks
may require having regard to the
about lodging of complaint of sexual
complaint; (g) provide assistance to the
harassment before the law
woman, if she chooses to file a complaint
implementing agency and the
in relation to the offence under the Indian
employer’s duty in assisting the
Penal Code or any other law for the time
aggrieved woman. If the perpetrator
being in force; and (h) initiate action,
is an employee of workplace, unless
under the Indian Penal Code or any other
the victim so chooses to file a
law for the time being in force, against

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the perpetrator, where the perpetrator is complaint in relation to the offence

not an employee in the workplace at under Indian Penal Code or any other

which the incident of sexual harassment law for the time being in force, the

took place. employer need not file a complaint

before the police.

Section 19 (h) of the act is ambiguous as

it does not clarify whether the employer

can lodge a complaint of sexual

harassment only if the aggrieved woman

so desires or even otherwise if the

perpetrator is not an employee in the

work place at which the incident of

sexual harassment took place. But the

reading of Section 19 (g) would mean

that if the offence of sexual harassment

against the aggrieved woman happens

inside the precincts of workplace, the

employer has to assist the victim in

lodging the complaint. But 19(h) it is

both ways; that is, if the aggrieved

woman so desires or / and if the

perpetrator is not employee in the

workplace at which the incident of sexual

harassment took place. Hence the

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 ambuiguity has to be cleared

Section 20 - Duties and powers of On a comparative analysis of this

District Officer. provision with Section 19 of the Act, we

can see that a number of duties are cast

The District Officer shall, - upon the employer. Those duties are not

considered appropriate enough to be

(a) monitor the timely submission of assigned to the District Officer. This is a

reports furnished by the Local serious anomaly resulting in non delivery

Committee; of justice to aggrieved woman. Absence

of duties like providing necessary

(b) take such measures as may be
facilities to Local Complaints Committee
necessary for engaging non –
for dealing with the complaint and
governmental organizations for
conducting inquiry, assisting in securing
creation of awareness on sexual
the attendance of respondents and
harassment and the rights of the
witnesses before the complaints
women.
committee and making available the

require information to it cannot be

considered acceptable.

Therefore, it is just and necessary to

categorically enumerate the various

duties to the District Officer as prescribed

by Section 19 on the employer.

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Section 23 - Appropriate Government This section provides for monitoring,

to monitor implementation and implementation and maintenance of data

maintain data. on the number of cases filed and disposed

of in respect of all cases of sexual

The appropriate Government shall
harassment at work place by the
monitor the implementation of this Act
appropriate government.
and maintain data on the number of cases

filed and disposed of in respect of all There is no centralized monitoring

cases of sexual harassment at workplace. mechanism to compile the data and in the

absence of such centralized monitoring

mechanism for data collection, the

implementation of the Supreme Court

guidelines in the private sector could not

be ascertained. It is necessary that an

effective monitoring mechanism has to be

put in place if the objective of the law to

be achieved.

The responsibility of monitoring the

implementation of various provisions of

the Act had to be given to the National or

State commissions for women who would

be better equipped for handling such a

task in view of their experience and

expertise of working for the cause of

women.

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Section 24 - Appropriate Government The idea of giving the responsibility to

to take measures to publicize the Act. the government to take measures to

publicize the Act is a welcoming one. But

The appropriate Government may, at the same time, the implementation of

subject to the availability of financial and publicizing the Act is diluted by adding a

other resources, - clause ‘subject to the availability of

financial and other resources’.

(a) develop relevant information,

education, communication and The definition clause under Section 2 (b)

training materials, and organize – appropriate government means – in

awareness programmes, to relation to a work place which is

advance the understanding of the established, owned, controlled or wholly

public of the provisions of this or substantially financed by funds

Act providing for protection provided directly or indirectly by the

against sexual harassment of Central Government or Union Territory

woman at workplace. Administration, the Central Government

Formulate orientation and training and by the State Government, the State

programmes for the members of the Government.

Local Committee.

It is to be noted that nowhere in the Act

an obligation is cast upon the Central

government or State governments to

allocate resource for the implementation

287
 of the Act. Unless the governments

allocate funds there cannot be an

effective measure to publicise the Act. To

educate, develop relevant information,

create communication and training

materials and to organize awareness

programs the governments have to

allocate money for the same. When a

duty is cast upon the employer with

regard to the above mentioned activities

to enlighten the provisions of the law and

to give confidence to the women workers

about a work place free of sexual

harassment, the governments cannot be

asked to take measures to publicise the

Act depending upon the availability of

financial and other resources.

Section 25 - Power to call for On the cases of sexual harassment

information and inspection of records. handled by an establishment will be

submitted to the State government

(1) The appropriate Government, on annually and the appropriate government

being satisfied that it is necessary in the is also mandated to monitor the

public interest or in the interest of women implementation of the Act and maintain

employees at a workplace to do so, by data on the number of cases filed and

288
order in writing,- properly disposed off. Provision in

Section 25 authorizing any officer to

(a) Call upon any employer or inspect an establishment in public interest

District Officer to furnish in or in the interest of women employees on

writing such information relating the part of the appropriate government

to sexual harassment as it may seems to be somewhat unjustified. Such a

require; power may be given only in case of an

(b) Authorize any officer to make extreme case of sexual harassment taking

inspection of the records and place and not being handled properly by

workplace in relation to sexual the concerned authority and a specific

harassment, who shall submit a complaint / report being made by the

report of such inspection to it complainant / Complaints Committee /

within such period as may be State Commission for Women.

specified in the order.

(2) Every employer and District Further there is no word about

Officer shall produce on demand appointment of an officer as per the Act

before the officer making the for the implementation / inspection of the

inspection all information, records records. Under the provisions of

and other documents in his custody Protection of Women from Domestic

having a bearing on the subject matter Violence Act, the government has

of such inspection. appointed Protection Officers to receive

applications from the aggrieved women

and to proceed further until the case is

taken to the concerned magistrate. In

almost all the states District Social

289
 Welfare Officers are appointed as the

Protection Officers. Likewise, Special

Officers may be appointed to look into

the information regarding cases of sexual

harassment against women and to give

information when the appropriate

government calls for the information.

The state governments which are

over burdened with various other

worksmay be finding it difficult to send

an officer either for inspection or for

information. There is no Nodal Agency

appointed under the Act for the

implementation of the provisions by the

government and the employer. Unless

that lacunae is filled the provision will

remain redundant.

Section 26 - Penalty for non The cancellation or withdrawal of

compliance. registration for non compliance of the

with provisions of Act. provisions of the Act under Section 26

would result in the closure of the business

(1) Where the employer fails to – operations of the work place and would

result in loss to exchequer in the form of

290
(a) constitute an Internal Committee loss of revenue from Octroi valued added

under sub-section (1) of section 4; tax, income tax etc. It would also affect

(b) take action under sections 13, 14 and the employees and vendors, dependent on

22; and the operations of the work place, in spite

(c) contravenes or attempts to contravene of their non committing any uncalled for

or abets contravention of other provisions actions. It is to be noted that industry is a

of this Act or any rules made thereunder. human centric place. Employer’s licence

(2) If any employer, after having been withdrawal / renewal / approval or

previously convicted of an offence cancellation of registration due to non

punishable under this Act subsequently compliance with the law would lead to

commits and is convicted of the same shutting down of units making thousands

offence, he shall be liable to – of employees jobless. Hence this

provision needs to be modified or

(i) Twice the punishment, which might removed so that the guilty will be

have been imposed on a first conviction, punished but it should not adversely

subject to the punishment being affect the harmless people.

maximum provided for the same offence;

It is a strong deterrent for the

Provided that in case a higher employer who commits an offence under

punishment is prescribed under any other the Act for the second time. Instead an

law for the time being in force, for the alternative provision may be included

offence for which the accused is being that indicates revocation, suspension of

prosecuted, the Court shall take due any licence / registration for such period

cognizance of the same while awarding as may be specified, issued under any law

the punishment: for time being in force, provided that an

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(ii) cancellation, of his licence or opportunity to the employer / respondent

withdrawal, or non-renewal, or approval, to be afforded before initiating any

or cancellation of the registration, as the action.

case may be, by the Government or local

authority required for carrying on his

business or activity.

Rule 7 - Manner of Inquiry into The Rules under the present Act

Complaint emphatically provide that no party shall

be allowed to bring in any legal

(6) the party shall not be allowed to bring practitioner to represent such party at any

in any legal practitioner to represent them stage of proceeding before the

in their case at any stage of the Complaints Committee. Consequently,

proceedings before the Complaints advocates stand excluded from

Committee representation in respect of the inquiry

proceedings. Such prohibition upon the

appearance of advocates is founded on

the idea that advocates may resort to

delay tactics and prolong the litigation.

What the rule makers have forgotten is

that advocates are duty bound to present

their client’s case effectively and to plead

on the principle of presumption against

guilt. Further, advocates do assist courts

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and other authorities or bodies where

evidence is recorded and law is applied to

factual situations and thereby render great

help in the process of arriving at proper

conclusions based on evidence on the

issues involved / framed. This is on

account of the high skills they developed

in study of facts and the law, counseling

or advising of the clients, dealing with

witnesses and actively engaging

themselves in the process of adjudication.

It is pertinent that even in domestic and

departmental enquiries conducted

according to the government servants’

conduct and service rules, legal aid by

advocates is permitted. Further by the

recent notification bringing into force

Section 30 of the Advocates Act,

advocates are entitled to appear before all

authorities before whom evidence is

taken. Therefore, the ban on appearance

of advocates incorporated in the Rules as

above said appears to be based on

erroneous presumptions and is not

293
 reasonable.

Therefore, it is suggested that wherever

the members of the Internal Complaints

Committee or the Local Complaints

Committee as the case may be, are not

well versed or properly trained in the

conduct of enquiry proceedings,

provision must be made for availing the

services and assistance of advocates so

that the process of inquiry can be

conducted in accordance with the

principles and tenets of law and would

stand the scrutiny of courts whenever the

findings or the process itself is

challenged.

Rule 13 Sexual Harassment of women at Rule 13 (a) of the Rules made

Work Place (Prevention, Prohibition and under the present Act renders it

Redressal) Rules 2013. mandatory for the employer to promote

gender sensitive safe places and remove

Manner to organize workshops, etc. – the underlying factors that contribute

Subject to the provisions of section 19, towards a hostile work environment

every employer shall – against women, formulate and widely

disseminate an internal policy for

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(a) formulate and widely disseminate an prohibition and prevention and redressal

internal policy or charter or resolution or of the sexual harassment at work place.

declaration for prohibition, prevention But it appears that Section 19 of the

and redressal of sexual harassment at the present Act, by its language, has failed to

workplace intended to promote gender provide for prevention of incidences of

sensitive safe spaces and remove sexual harassment at work place. The

underlying factors that contribute towards provision merely speaks of and imposes

a hostile work environment against certain duties on the employer by way of

women; making certain arrangements alone at the

work place. At the best, compliance with

(b) carry out orientation programmes the provision under Section 19 would

and seminars for the members of the stop short of actual prevention of the

Internal Committee; mischief dealt with by the Act. Even

there the employer may comply with the

(c) carry out employees awareness requirements willy-nilly for fear of penal

programmes and create forum for consequences under Section 26 of the

dialogues which may involve Panchayati Act. As rightly pointed out by Naina

Raj Institutions, Gram Sabha women’s Kapur, “merely imposing a duty on

groups, mothers’ committee, adolescent employers to build awareness, train or

groups, urban local bodies and any other display an office order about a

body as may be considered necessary; committee’s existence is not the same as

enrolling them to responsibly do so.

(d) conduct capacity building and skill

building programmes for the members of

the Internal Committee;

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(e) declare the names and contact details

of all the Members of the Internal

Committee;

(f) Use modules developed by the State

Governments to conduct workshops and

awareness programmes for sensitizing the

employees with the provisions of the Act.

It is more than three years since the Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013 came into force (22.4.2013), replacing the

Vishaka guidelines of the Supreme Court which were effective till then. By the very nature of

things, a statute made by the Parliament and implemented by the Executive ought to have

been very effective, particularly in a sphere that is very sensitive and rather volatile. But it

has not been so. Even now there are widespread reports on the incidences of sexual

harassment at several work places, particularly small and medium enterprises. There exist

practically no Local Complaints Committee in many districts of states across India and

despite the knowledge of the majority of employers of the existence of the Act, so many have

not implemented the same in their work places as they are unaware and not sure of what they

should do by way of duty or responsibility under the law in order to prevent or deal with

sexual harassment. Small and medium enterprises doing business on a limited scale appear to

have an impression that their premises are not likely to be infested by sexual harassment

problems. But it is not so. The ground reality, coming to be known through reports, has

shown that women are made the objects of sexual remarks or innuendo on account of the

296
unprotected and informal work place environment. These businesses have a tendency to have

no official policy on sexual harassment nor program for training in this aspect, which results

in the administrations being ignorant of or indifferent to the fact of sexual harassment taking

place under their very nose and consequently do not at all deal with the menace.

The suggested remedy can be to hold training programs for those in the reins of power

and responsibility in small enterprises in the matter of prevention and prohibition of sexual

harassment and in processing the complaints of sexual harassment whenever received at their

work places. They have to be educated to bring the matter to the knowledge of the Local

Complaints Committee and the Committee may, in turn, give directions of appropriate nature

to these enterprises to make their employees aware of the existence of Local Complaints

Committees and the ways and means to approach them for remedy. Further the employers

should be made to be diligent and responsible enough to never to fail reporting of cases of

sexual harassment in their respective work places.

It is true that the introduction of the Act on Sexual Harassment Against Women at

Workplace has come as a boon to the working women. As the days of patriarchal monopoly

are coming to an end and the percentage of women in the work force is on the increase day

by day, women are bound to be disturbed by several manifestations of patriarchal rebound

which includes sexual harassment. In this scenario, the existence of legislation by itself

cannot be adequate safeguard against the said misdemeanor or other forms of gender based

difficulties. Further to the legislation and the creation of mechanism for redress thereunder,

what remains to be done is to change the mindset and prejudices of men which is adverse to

women for no reason but bred by a fading feudal culture which remains un-reconciled to the

reality of the male of the species having to lose a considerable portion of the power hitherto

possessed and wielded. It is a matter of dealing with the socially conditioned urge for psychic

/ sexual dominance and a phobia born of a new insecurity created by an imagined threat to

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hegemony. It is a complex phenomenon manifesting itself in derogatory remarks, nasty jokes,

inappropriate comments and the like which has come to disturb and affect the Indian women

of the current ethos. These are either ignored as normal or reconciled to on account of

apprehensions of ridicule or lambast. All these are deep rooted social difficulties. They will

not vanish by themselves nor can be wished away. They have to be dealt with, not only by

enacting legislation, but by enforcement thereof and by creation of great awareness among

people of both the genders. It is a long process, consistency, courage and support. The law is

but only a part of it.

What is needed to be done is to empower women to have courage in the assertion of

their rights conferred upon them by the law, creation of an awareness of the remedies

available together with the knowledge of how to move the redress mechanism; persuasion of

the employers to create and maintain a mechanism for prevention coupled with a definite

implemented plan of reeducating employees, both male and female, so that the sexist

overtones in work relationships would be done away with and sexual harassment as a menace

and mischief affecting women and creating a non productive and uncreative work atmosphere

is eliminated in due course. Whatever be the threat, be the violence, be the obstacles, they are

not going to deter womenfolk from taking up jobs and employment on account of their socio

economic necessities; and women are equipping themselves with better knowledge and

continue to vie with men to occupy their due spaces in all walks of life. This reality demands

that the process, both legal and social, of eliminating sexual violence against women

anywhere including in the workplaces, as an imperative warranted by the modern times.

At this point in the history of this country, there is a categorical imperative warranting

that a clear message in unequivocal terms is conveyed to both men and women being

constituents of the workforce of the nation that sexual harassment being unacceptable to

constitutional governance of which equality of sexes is fundamental. That alone would ensure

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that men will come to understand and acknowledge the devious and diabolical nature of the

act of sexual harassment, a manifestation of gender related violence. This understanding, in

turn, will lead to the realization that they should undertake the process of banishing this

serious mischief both from the workspace and the domestic front concurrently.

It is apt to quote Swami Vivekananda, who said, “Just as a bird could not fly with one

wing only, a nation would not march forward if the women are left behind”. Considered from

the perspective emerging from the foregoing analysis of the subject as contained hereinabove,

the conclusion is inescapable that sexual harassment being a complex phenomenon with its

roots running wide and deep in the social structure, with its subtleties, still it is incongruous

and anachronistic to the present and future socio economic context and bound to be

prohibited and prevented with the aid of an effective legal machinery, which alone can

guarantee a safe working environment which would be conducive to the empowerment of

women and gender harmony resulting in and necessary to the economic development of the

country.

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