Eliminating sexual harassment at the workplace: broadening the discourse on gender equality

AbstractIn India, women are entering the formal labour workforce in unprecedented numbers, yet as a proportion of the workforce, the percentage of women workers is declining [Twelfth Five Year Plan (2012–17), Planning Commission, Government of India, Volume III – Social Sectors; Table 22.8 at page 133 notes that the labour force participation rate of women workers has declined both in the rural as well as in the urban areas from 2004–05 to 2009–10]. More than ever before, India as a country of contradictions presents a challenge to women in the work force. Deep-rooted ideologies of gender bias and discrimination remain the most pervasive and persistent form of inequality in the world today. The global economic crisis, characterised by increasing de-regularisation, privatisation and outsourcing of jobs down the supply chain is leading to a transformation of employment relationships. These changes resonate in Indian workplaces as well, creating a counter movement towards the invisibilisation of workers, more particularly women, what we call in India the movement of women workers from the formal sector to the informal sector. The rapidly changing work environment also reinforces the increasing importance of job security, social protection, decent work, financial regulation and fair taxation as the key to a more just world order enhancing the participation of women in the workforce. It is in this context that we must view the emerging challenges that working women face. In the light of these developments, there is, more than ever before, a pressing need for the rights of women to be respected, protected and fulfilled, particularly in the workplace. The right to work encompasses the right to work free from sexual harassment. This article examines the key provisions of the Sexual Harassment at The Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act) and the Sexual Harassment at The Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (The Rules) [The 2013 Act came into force on 9 December 2013, vide notification issued by the Central Government (S.O. 3606(e)). On the same date, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 have also been notified]. The article scrutinises some of the weaknesses and strengths of the said law and it is from this perspective that it approaches the rights of working women, attempting to include within this rubric the widest possible range of women. NotesThe article was written with research and editing contributions by Katie Rose, Lawyers Collective, New Delhi. For a more comprehensive analysis of the issues raised herein, see chapters 1 and 5 in Indira Jaising (ed), The Law Relating to Sexual Harassment at the Workplace (2nd edn, Universal Law Publishing Co, due for release May 2014).1 Vishaka v State of Rajasthan (1997) 6 SCC 241.2 Ibid., [17].3 Ibid., [18].4 (1999) 1 SCC 759.5 Ibid., [28].6 (2013) 1 SCC 297.7 (2009) 2 SCC 210.8 Ibid., [19]. Interestingly, it appears that while passing this judgment, the Supreme Court was unaware of the interim directions passed by a cognate bench of the same court in Medha Kotwal Lele whereby the two-tier enquiry procedure had been dispensed with, and the Internal Committee was deemed to be the disciplinary enquiry committee.9 (n 6).10 Ibid., [16(i)].11 (n 6) [16(v)].12 S 354-A of the Indian Penal Code, 1860, as introduced by the Criminal Law (Amendment) Act, 2013 defines the offence of sexual harassment as follows: 354A. Sexual harassment and punishment for sexual harassment. A man committing any of the following acts – (1) physical contact and advances involving unwelcome and explicit sexual overtures; or (2) a demand or request for sexual favours; or (3) showing pornography against the will of a woman; or (4) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.13 S 2(a) of the 2013 Act.14 S 2(f) of the 2013 Act.15 S 2(g) of the 2013 Act.16 S 2(o) of the 2013 Act.17 (2010) 3 SCC 786.18 S 26(1)(a) of the 2013 Act. Sub-cl (2) of the same section provides that an employer who has been previously convicted of an offence under this Act, for a subsequent offence will face double the punishment, and may also invite cancellation of licence, or withdrawal of approval or registration for carrying on his business or activity.19 S 27(1) of the 2013 Act.20 S 4(2) of the 2013 Act.21 R 4 of the 2013 Rules.22 S 5 of the 2013 Act.23 S 6(1) of the 2013 Act.24 S 6(2) of the 2013 Act.25 S 7(1) of the 2013 Act.26 S 4(5) and 7(3) of the 2013 Act.27 S 9(1) of the 2013 Act.28 N 1 [13].29 Deirdre McCann, Conditions of Work and Employment Series No. 2 – Sexual Harassment at Work: National and International Responses, (Conditions of Work and Employment Programme, International Labour Organisation, 2005) 4.30 S 468 of the Code of Criminal Procedure, 1973.31 S 473 of the Code of Criminal Procedure, 1973.32 S 9(1) of the 2013 Act read with r 7 of the 2013 Rules.33 S 9(2) of the 2013 Act read with r 6 of the 2013 Rules.34 The term 'special educator' is defined under r 2(f) of the 2013 Rules as 'a person trained in communication with people with special needs in a way that addresses their individual differences and needs.'35 R 7(4) of the 2013 Rules.44 S 13(3)(ii) of the 2013 Act.45 S 12 of the 2013 Act read with r 8 of the 2013 Rules.46 S 12(2) of the 2013 Act.47 S 13(3) of the 2013 Act.48 S 15(3)(ii) of the 2013 Act.49 S 15 of the 2013 Act.50 See Proviso 1 and 2 to s 13(3)(ii) of the 2013 Act.51 S 10 of the 2013 Act.52 See J Verma (Retd), J Seth (Retd.), Subramanium (Member), 'Report of the Committee on Amendments to Criminal Law' (23 January 2013).53 Ibid., para 21 (ch 4).54 General Recommendation 19 to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) notes that, 'equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace'.55 Muthiah v CIT (1955) 2 SCR 1247. Provisions in regard to fundamental rights are contained in Part III of the Constitution. See also DD Basu, Introduction to the Constitution of India (20th edn, Nagpur, Wadhwa Sales Corporation, 2008).56 Some states in the West Indies have a conciliation clause. In Australia, s 46PH of the Australian Human Rights Commission Act, 1986, gives the President the power to terminate complaints, for example, if the complaint is lacking in substance or there is no reasonable prospect of the matter being settled through conciliation. This provision has been criticised on much the same grounds as applicable to the provision under the 2013 Act.57 S 10(4) of the 2013 Act.58 S 16 of the 2013 Act.59 S 17 of the 2013 Act read with r 12 of the 2013 Rules.60 S 14 of the 2013 Act.61 S 14 read with s 26(1)(b) of the 2013 Act.62 Para 4, Statement of Objects and Reasons of the 2012 Bill as placed before Parliament.63 R 9 read with r 10 of the 2013 Rules enables the ICC/LCC to recommend action be taken against such aggrieved woman or witness including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, termination from service, counselling or community service.64 See for instance, Sodhi v Union of India and Ors (2011) I LLJ 371 Del. and Suseela v Tamil Nadu Electricity Board & Anr., WP No 19,134 of 2009 dated 27 January 2012, Madras High Court.65 N 52 128, para 22.66 S 18(1) of the 2013 Act, and r 11 of the 2013 Rules.67 R 10 of the 2013 Rules.68 S 18 of the 2013 Act, read with r 11 of the 2013 Rules.69 Under s 13(2) of the 2013 Act.70 Under s 13(3)(i) of the 2013 Act.71 Under s 13(3)(ii) of the 2013 Act.72 S 14 (1) of the 2013 Act.73 S 14(2) of the 2013 Act.74 S 17 of the 2013 Act.75 S 26(1) of the 2013 Act.76 S 26(2) of the 2013 Act.77 The Department of Personnel and Administrative Reforms, Government of Manipur, has passed a notification No 1/3/2013 – Rules/DP(c) on 28 January 2014, where it has appointed the Deputy Commissioner/Additional Deputy Commissioner of every District to exercise powers and discharge functions of a 'District Officer' under the 2013 Act.78 S 5 of the 2013 Act. Experience indicates that putting the executive machinery in place for implementation of social welfare legislations is often so low on the priority of the executive that it requires directions in the nature of mandamus just to commence operations. For example, the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 was passed in Parliament in June 1993, but was brought into force only in January 1997. Executive authorities under the Act, imperative for its implementation to commence, were not in place in 2003, when a writ petition was filed in the Supreme Court (Safai Karamchari Andolan v Union of India, WP (C) No 583 of 2003, Supreme Court of India). It took eight years during which the Court treated the matter as a continuing mandamus, and numerous directions including the threat of contempt proceedings, merely to ensure that the State governments appoint the Executive authorities for commencement of implementation of the Act.79 S 23 of the 2013 Act.80 S 24(a) of the 2013 Act.81 S 24(b) of the 2013 Act.82 S 25(1)(a) of the 2013 Act.83 S 25(1)(b) of the 2013 Act.84 S 8(4) of the 2013 Act.85 At the time of going to print, District Officers had been notified in only one State, being Manipur, and LCC had not been set up anywhere in the country.