What is sexual harassment: What the laws of the land say
New Delhi, Oct 10: Several women have been coming out in the open and calling out influential men, including actors, journalists among others for alleged sexual harassment.
In this context it would be interesting to examine the law relating to sexual harassment and what exactly defines it. The offence is covered under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013. While defining sexual harassment, it lays down the procedure on how a complaint has to be filed and also the action to be taken.
The Vishaka guidelines:
- In a 1997 judgment, the Supreme Court had laid down guidelines. A public interest ligitation was filed over the alleged rape of a social worker from Rajasthan. She prevented the marriage of a 1 year old girl, which led to the gang-rape.
- The verdict laid down three key obligations on institutions-prohibition, prevention, redress. The court ordered that a Complaints Committee, which would look into matters of sexual harassment of women at the workplace be constituted.
The Act of 2013:
Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013, it is mandatory for every employer to constitute an Internal Complaints Committee at each office or branch where there are 10 or more employees.
The act also lays down the procedure and defines sexual harassment. A woman "of any age whether employed or not", who "alleges to have been subjected to any act of sexual harassment", which means the rights of all women working or visiting any workplace, in any capacity, are protected under the Act.
Definition of sexual harassment:
- Sexual harassment includes "any one or more" of the following "unwelcome acts or behaviour" committed directly or by implication:
- Physical contact and advances
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The Women and Child Development Ministry published a Handbook on Sexual Harassment of Women at Workplace. It went on to broaden the definition of sexual harassment. It said:
- Sexually suggestive remarks or innuendos; serious or repeated offensive remarks; inappropriate questions or remarks about a person's sex life
- Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails
- Intimidation, threats, blackmail around sexual favours; also, threats, intimidation or retaliation against an employee who speaks up about these
- Unwelcome social invitations with sexual overtones, commonly seen as flirting
- Unwelcome sexual advances.
What is unwelcome behaviour:
The handbook says unwelcome behaviour is when a victim feels bad or powerless, causes anger/sadness or negative self esteem. It also says unwelcome behaviour is one which is illegal, demeaning, invading, one sided and power based.
The five circumstances that amount to sexual harassment are:
- Implied or explicit promise of preferential treatment in her employment
- Implied or explicit threat of detrimental treatment
- Implied or explicit threat about her present or future employment status
- Interference with her work or creating an offensive or hostile work environment
- Humiliating treatment likely to affect her health or safety.
How a complaint is filed:
- A complaint has to be made within 3 months from the ate of the incident. However the act has not made it rigid and says that the timeframe can be extended if circumstances were such that she was unable to file the complaint.
- The Act says the aggrieved victim "may" make, in writing, a complaint of sexual harassment. If she cannot, any member of the ICC "shall" render "all reasonable assistance" to her for making the complaint in writing. And if the woman is unable to make a complaint on account of her "physical or mental incapacity or death or otherwise", her legal heir may do so.
- The ICC "may", before inquiry, and "at the request of the aggrieved woman, take steps to settle the matter between her and the respondent though conciliation" - provided that "no monetary settlement shall be made as a basis of conciliation".
- The ICC may forward the complaint to the police under IPC Section 509 (word, gesture or act intended to insult the modesty of a woman; maximum punishment one year jail with fine). Otherwise, the ICC can start an inquiry that has to be completed within 90 days.
What about a false complaint:
Under Section 14 it is stated that if a false or malicious complaint is filed the ICC may recommend to the employer to take action against the woman. However action cannot be taken for mere inability to substantiate the complaint or provide adequate proof.