Fine threads of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The need to ensure that the Employers comply with laws on Sexual harassment, in letter and spirit, came to be discussed and implemented by the Hon’ble Supreme Court of India in Vishaka & Ors Vs State of Rajasthan, (1997) 6 SCC 241. In order to maintain gender equality and to enforce the fundamental rights of working women under article 14, 19 and 21 of Constitution of India, a Writ Petition was filed to find a method to prevent sexual harassment through judicial process.

While entertaining the Petition under article 32 for enforcement of fundamental rights, the Court took note of article 15 (1) and (3) of the Constitution which states that no state shall discriminate on ground of sex and that nothing shall prevent the state from making any special provision for women and children, and article 42 which provides of making provisions for securing just and humane conditions of work. The Court considered the International Conventions on the subject for judicial interpretation. The Court considered various suggestions of the Bar and Solicitor General, and in the absence of enacted law, guidelines and norms were specified in the Judgement till a Legislation was enacted.

Having raised the bar of responsibility and accountability, the Court placed an obligation on workplaces, institutions etc., to uphold working women’s fundamental right to equality and dignity at the workplace. Three key obligations were imposed on institutions to meet that standard, namely:

a.   Prohibition

b.  Prevention; and

c.   redressal

The Court defined Sexual harassment as any unwelcome, sexually determined physical, verbal or non-verbal conduct. It also covered situations where a women could be disadvantaged by her workplace as a result of threats relating to employment decisions that could negatively affect her working life. The Court directed for establishment of redressal mechanism in form of Complaints Committee which will look into matters of sexual harassment.

In view of the Judgement and the fact that India is a party to the Convention on elimination of all forms of Discrimination (CEDAW), the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted in 2013. This Act provides for a civil remedy to women and is in addition to other laws, and therefore, a women has a right to take recourse to both civil and criminal proceedings.

A mechanism for considering a Complaint is enshrined in Section 4 which mandates that every employer shall constitute a Committee to be known as “Internal Complaints Committee” (ICC). Every Magistrate for every district shall constitute a “Local Complaints Committee” where the establishment does not have workers more than 10 or where the Complaint is against the employer.

The Act does not mandate that the members should have legal experience. Common sense, knowledge, awareness, truthfulness and principles of Natural Justice and equity are sufficient for adjudication by the Committee. It must be noted that ICC shall adjudicate upon all Complaints received by it and cannot be constituted for a specific complaint.

A Complaint has to be raised within 3 months from the date of incident. This time period is not to be considered strictly and a Complaint cannot be rejected for a delay, as it is understandable what a Women might go throw when such an incidence takes place.

Upon receipt of a Complaint, the Committee shall proceed to make an Inquiry into the Complaint in accordance with the Service rules applicable on the accused. The Committee shall have same powers as vested in a Civil Court under CPC. The Local Committee may forward the Complaint to Police for registering a case under IPC.

After Completion of the Inquiry, the Committee has to provide a Report of its findings, and if it concludes that the allegations have been proved, then as per Section 13 (3) of the Act, it shall recommend the Employer or the District Officer, as the case may be, to take action for sexual harassment in accordance with the provisions of the services rules applicable on the accused. The Rules of the establishment shall give details of how it would take action in view of recommendation of the ICC. It may conduct a Disciplinary proceeding headed by an independent officer or by an officer from the establishment. The penalty or an action in accordance with the decision of the Disciplinary authority shall be acted upon by the establishment in full spirit.

‘Complaint mechanism’ is independent of ‘disciplinary action’ and the Disciplinary authority of the establishment is not bound by the decision of ICC. It can pass its own view after considering the complete facts and evidence on record. Strict Rules of evidence are not required to be followed and the Committee and the Disciplinary authority of the Employer can adopt its own procedure and rules in conformity with the principles of natural justice. In Avinash Nagra Vs Novodya Vidyalaya & Ors 1997(2) SCC 534, the Court held that dispensing with a regular enquiry under the rules and denial of cross – examination did not vitiate inquiry on ground of violation of principles of natural justice.

Ordinarily, no Writ Court entertains a Writ Petition against the Disciplinary authority or the ICC.

The Act of 2013 does not mandate that the statement or Cross Examination has to be recorded in presence of the Accused. Infact, Section 16 of the Act bars disclosure of the identity of the Complainant and prohibits publication or making known the contents of the Complaint and the proceedings. The identity has to be kept confidential.

Accused may say that he was not granted liberty to examine the Complainant and that principles of natural justice have not been considered. This plea, however, would not work as the requirement of natural justice depends on the circumstances of each case, the nature of the inquiry in question, the subject matter that is being dealt with, sensitivity of case etc,. In sexual harassment cases, keeping in view the sensitivity of the position which the women would be in, plea by the accused of Natural justice would not work as long as:

a.   The accused knew of the nature of the accusation made on him:

b.  Accused was given equal opportunity to state his case in a free and fair environment:

c.   The Authority has acted in good faith.

Rule of natural Justice cannot remain the same to all conditions. Care should be taken to see that the witnesses who give statement are not be identified, otherwise no witness will come forward to give evidence in the presence of the accused who may have built some pressure. The girl who was harassed may not be in a position to come forward to give evidence and if a strict enquiry like the one that is conducted in Court of law was to be imposed in such matters, the girl may not come before the Committee/ authority under fear of seeing the Accused. Thus, the course followed by the authority, if done in good faith, would be a wise one.

A person held guilty under such situation usually approaches the High Court under Writ Jurisdiction. Needless to state that both the authorities, i.e., ICC and the authority of the Employer have to act independently and are not bound to accept the decision of ICC. Therefore, trail takes place on two occasions. After this, unless the Court comes to the conclusion that the penalty imposed is shockingly disproportionate to the misconduct by the Respondent, the Court usually do not interfere in the decision of either authorities.

When a Statute gave discretion to an administrator to take a decision, which in this situation is the authority appointed by the Employer, the scope of judicial review would remain very limited. Interference by Court can be called for in case of illegality or procedural irregularity and/or irrationality, i.e.;

a.   when the Order of the authority is contrary to Law: or

b.  relevant factors were not considered by the authority: or

c.   irrelevant factors were considered: or

d.  decision was one which no reasonable person could have taken:

e.   Quantum of punishment by the authority was arbitrary:

f.    Party was not given adequate opportunity to present his side of the story.

Each incident of Sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty. Once findings of fact based on evidence are recorded, the Courts in Writ jurisdiction should not interfere unless the findings were based on no evidence or the findings were perverse. Sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her.

While the legislature was necessary at that time, in todays world however where people may use law as a tool for their own benefit, like for example, when a lady wishes to use this law for her personal grudge, the need to determine the guilt should be based on strict rules of evidence.