Sexual Harassment

In India, the law on Sexual Harassment has been shaped by the iconic judgement of The Hon’ble Supreme Court in Vishaka V/s State of Rajasthan, where the Apex Court laid down 12 guidelines to effectively deal with the problem. Latest studies have shown that an alarming percentage of working women in India have suffered sexual harassment at their workplace and continue to do so. The issue has come to the forefront of late with many companies facing the ire of NGOs, Political Parties and the media with regard to sexual harassment cases. Following are the guidelines that have been laid down in the Vishaka judgment by the Supreme Court:

1. Duty of the Employer at work places:
It shall be the duty of the employer to prevent or deter the commission of acts of sexual harassment and take all steps required for the resolution, settlement or prosecution of acts of sexual harassment:

2. Definition:
Sexual Harassment shall include the following unwelcome acts:
a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where, any of these acts is committed in circumstances where the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work such conduct can cause humiliation and may constitute a health and safety problem for the victim. Further, it is discriminatory when the woman has reasons to believe that her objection to such acts would disadvantage her at work and that it might create a hostile work environment and that she might face adverse consequences if she does not consent to the conduct in question.

3. Preventive Steps:
All employers or persons in charge of a work place either in the public or private sector should take appropriate steps to prevent sexual harassment. The following steps must be taken:

(a) Acts of sexual harassment as defined above should be expressly prohibited via notifications, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should prohibit sexual harassment and provide for appropriate penalties against offender.

(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action:
Appropriate disciplinary action w.r.t acts of sexual harassment should be initiated by the employer in accordance with the organisation’s service rules.

6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure timely treatment of complaints.

7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.

The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:
Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness:
Female employees should be made aware of their rights with regard to matters of sexual harassment by prominently notifying these guidelines in a suitable manner.

10. Third Party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including laws to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Some tips on effectively tackling Sexual Harassment in an organization: 
1. The Sexual Harassment Policy of an establishment must be gender neutral, protecting both males and females against sexual harassment. The Policy must cover the 12 guidelines laid down by the Vishaka judgement completely.

2. The Policy must mention all the members of the Complaints Committee.

3. The Complaints Committee must make an annual report to the Government Department concerned of the complaints and actions taken by them. 

4. Where any conduct that is sexual harassment also amounts to a specific offence under the Indian Penal Code or under any other law, the employer should initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

5. Victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

The Protection of Women Against Sexual Harassment at Workplace Bill, 2010 was passed recently by the Lok Sabha. The Bill makes it mandatory for the constitution of Internal Complaints Committees, creation of Local Complaints Committees in every district and twin mechanisms for redressal of complaints. Its ambit is wide and it covers, in keeping with the above stated guidelines laid down in the Vishaka matter, the unorganised sector.