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

2013
Synopsis
1. Background
2. Legislative initiations
3. Judicial initiations
4. Object of the Act
5. Definitions
6. Prevention of sexual harassment
7. Setting up of Complaints Committees
a. Internal Complaints Committee
b. Local Complaints Committee
8. Complaints
9. Conciliation
10.Inquiry
11. Appeal
12.Duties of employer
13. Annual report
14.Duties of appropriate govt.

As a nation, we can no longer stay silent standby when women are subject to sexual
harassment and other gender-based discrimination at the workplace. Earning a
livelihood with dignity and harassment-free work environment is a basic human right
recognised as a fundamental right by the Indian Constitution.
To provide a definitive legal construct to combat the issue of sexual harassment at
workplace India enacted the sexual harassment of women at workplace (prevention
prohibition and redressal) Act 2013 which is modeled on the Supreme Court
judgement in Vishaka vs State of Rajasthan.
Legislative Evolution
In the field of protection of women against sexual harassment at the workplace for
the longest time in India did not have any legislative development. Aggrieved women
are very often depended on writ petitions to seek justice for themselves. Apart from
filing writ petition women also depended on a few provisions of IPC which are
section 354 and 509 of IPC to file complaints with respect to sexual harassment
suffered by them. A civil suit under tort can be filed if the basis for the filing of the
case were mental anguish physical harassment loss of income and employment etc.
If an employee suffers unfair dismissal or is denied employment benefits as a
consequence of the rejection of sexual advances which amounts to unfair labour
practices as specified in schedule V of industrial disputes act 1947 for which the
employee can approach the Labour Court for necessary remedy.
Judicial Initiations
Vishaka v. State of Rajasthan
Each incident of sexual harassment of woman at workplace results in violation of the
fundamental rights of "Gender Equality" and the "Right to Life and Liberty". It is a
clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of
the logical consequences of such an incident is also the violation of the victim's
fundamental right under Article 19(1)(g). The meaning and content of the
fundamental rights guaranteed in the Constitution of India are of sufficient amplitude
to encompass all the facets of gender equality including prevention of sexual
harassment or abuse.
It shall be the duty of the employer or other responsible persons in workplaces or
other institutions to prevent or deter the commission of acts of sexual harassment
and to provide the procedures for the resolution, settlement or prosecution of acts of
sexual harassment by taking all steps required.
In the absence of any statutory definition of the term "sexual harassment", it was left
to the Supreme Court to do the needful. Relying on international conventions and
norms, particularly General Recommendation No. 19 of the CEDAW constituted by
the United Nations, the
Supreme Court defined the term "sexual harassment" for the first time in the year
1997 in Vishaka v. State of Rajasthan. The definition is almost in pari materia with
the one proposed by the CEDAW, United Nations and reads:
Sexual harassment includes such unwelcome sexually determined behavior
(whether directly or by implication) as:
(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 whereunder the victim
of such conduct has a reasonable apprehension that in relation to the victim's
employment or work whether she is drawing salary, or honorarium or
voluntary, whether in government, public or private enterprise such conduct
can be humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable grounds to
believe that her objection would disadvantage her in connection with her
employment or work including recruiting or promotion or when it creates a
hostile work environment. Adverse consequences might be visited if the victim
does not consent to the conduct in question or raises any objection thereto.
Object of the Act
The intention of this legislation is to provide protection against sexual harassment of
women at workplace and for the prevention and redressal of complaints of sexual
harassment and for matters connected.
Definitions
Aggrieved Women
In relation to a workplace
a. Women of any age
b. Employed or not
c. Alleges to have been subjected to any act of sexual harassment
In relation to dwelling house
a. Women of any age
b. Employed in such dwelling house
Women of any age
Union of India V. Sujith suklabaidya 2007
Teenage girls of a school filed sexual harassment complaint against a peon in the
school. The question before the court was that whether Vishaka guide lines are
applicable for teenage girls? The court held that the underlying message of the case
is that the entire environment at workplaces should be free from sexual harassment.
Employed or not
Jaya kodate V. Rashtrasant tukdoji Maharaj Nagpur University
The court held that the definition of an aggrieved woman contains the phrase
whether employed or not, an aggrieved woman to be a woman always under a
contract of employment with the workplace and said that the in the definition
emphatically rules out any need of Master servant relationship between such
aggrieved women and the respondents
• Applies to third parties
Srinivas Rajan V. The Director of Matriculation Schools, Chennai
The act is applicable to third parties as well, since the definition specifically
mentioned that an aggrieved woman will be women of any age whether employed or
not so it is applicable to sexual harassment faced by third parties or outsiders in the
employer's premises it is the obligation of the employer to take action against such
acts.
• Domestic Worker Sec 2(d)
1. a woman
2. Who is employed
3. To do the household work in any household
4. For remuneration, whether in cash/ kind
5. By an agency/directly or temporary/permanent, part time/fulltime
6. Does not include member of the family of the employer
• Employee Sec 2 (f)
1. A person
2. Employed at a workplace
3. For any work on regular/ temporary/ad hoc/daily wage
4. Either directly/ through an agent including a conyractor With or without the
knowledge of the principal employer
• Employee Sec 2 (f)
1. A person
2. Employed at a workplace
3. For any work on regular/ temporary/ad hoc/daily wagE.
4. Either directly/ through an agent including a contractor
5. With or without the knowledge of the principal employer
6. Whether for remuneration or not/ voluntary basis/ otherwise
7. Terms of employment is express or implied
8. Includes a co-worker, contract worker, probationer, trainee, apprentice or called
any such name.
T. R. Sahrawant V. K. V. Sangatham
Central Administrative Tribunal Delhi held at even though the respondent may be a
part-time temporary employee, his services cannot be terminated on the ground of
sexual harassment without any inquiry and such action taken against the
respondent, in this case, was considered against the principles of natural justice.
Employer Sec 2 (g)
"employer" means—
(i) In relation to any department, organisation, undertaking, establishment,
enterprise, institution, office, branch or unit of the appropriate Government or
a local authority, the head of that department, organisation, undertaking,
 establishment, enterprise, institution, office, branch or unit or such other
officer as the appropriate Government or the local authority, as the case may
be
(ii) In any workplace not covered under sub-clause (i), any person responsible for
the management, supervision and control of the workplace.
(iii) in relation to workplace covered under sub-clauses (i) and (ii), the person
discharging contractual obligations with respect to his or her employees;
(iv) in relation to a dwelling place or house, a person or a household who employs
or benefits from the employment of domestic worker, irrespective of the
number, time period or type of such worker employed, or the nature of the
employment or activities performed by the domestic worker;

When the employer is considered to be an employee

Jaya Kodate V. Rashtrasant Tukdoji Maharaj Nagpur University
Unless the context otherwise requires the employers also need to be treated as
employees and every person who can be placed as an employer if he is a
respondent and falls under the otherwise wider definition of term employee will be
considered to be an employee the court also noted that the concept of either
employee or employer as defined must be understood in a way conducive to further
the object of enactment and unless otherwise necessitated. Hence appropriate
circumstances the employer can be recognised as employee
When the employer turns the harasser
S. Srikant Joshy V. Board of Management
In this case, the employer was charged for sexual harassment. The High
Court of Karnataka had held that no one is entitled to be granted any relief who been
the protector has himself turned into predator. Respondent Sec 2 (m)
"respondent' means a person against whom the aggrieved woman has made a
complaint under section 9;
Workplace Sec 2 (o)
"Workplace" includes —
i. Any department, organisation, undertaking, establishment, enterprise,
institution, office, branch or unit which is established, owned, controlled or
wholly or substantially financed by funds provided directly or indirectly by the
appropriate Government or the local authority or a Government company or a
corporation or a co-operative society;
ii. Any private sector organisation or a private venture, undertaking, enterprise,
institution, establishment, society, trust, non-governmental organisation, unit
or service provider carrying on commercial, professional, vocational,
educational, entertainmental, industrial, health services or financial activities
including production, supply, sale, distribution or service;
iii. Hospitals or nursing homes;
iv. Any sports institute, stadium, sports complex or competition or games venue,
whether residential or not used for training, sports or other activities relating
thereto;
v. Any place visited by the employee arising out of or during the course of
employment including transportation by the employer for undertaking such
journey;
vi. A dwelling place or a house;
Definition covers both organized and unorganized workers
Sub clause (i), (ii), and (vi) clearly indicates the intention of the Act to bring the
unorganized sector under the ambit of the act and thereby afford the protection of
the Act to vast majority of the woman working in the unorganized sector.

Transport provided by the employer

The language of sub-clause (v) provides two qualifiers which must be satisfied in
order for the transport to be considered as a workplace.
1. The journey must be arising out of or during the course of employment and
(2) The transport must have been provided by the employer

Residential apartment where tenant is harassed by the landlord

Dr. Anil Sethi V. Commission of Women and others
The act has enacted to prevent sexual harassment at the workplace. A complaint of
sexual harassment made by a tenant against her landlord cannot be considered
under this Act. Since a landlord cannot be an employer of the tenant and tenant
cannot be an employee.

Residential place provided by the employer

Sourabh kumar Mallik V. The controller and Auditor General of India
The court held that it was not necessary that a workplace would be only a place
where actually office work is performed. Any extension of the place of work or any
institution whether a hostel or a mess, where the employer has control for
management would be treated as a workplace
Any place visited for official purpose is workplace
Women employee may face harassment not only within the physical boundaries of
the workplace but even outside it, which may be during or in course of employment
this may include harassment from a co-worker for from an employee of the one place
visited by her in course of employment or by the third party of such workplace.

Sexual Harassment Sec 2 (n)

1. Any one or more of the following
2. Unwelcome acts or behavior (directly or by implication)
a. physical contact and advances or
b. demand or request for sexual favors or
c. making sexually coloured remarks or
d. showing pornography or
e. any other unwelcome physical, verbal or non-verbal contact of sexual
nature.
Manisha Sharma V. U.O.I
• Sexual harassment cannot be construed in a narrow sense as it may include
sexual advances and other verbal or physical harassment of a sexual nature
I.L.O.'s observation
The kinds of behaviour considered sexually harassing appear to vary among
different cultures. the degree of physical contact tolerated between colleagues for
instant may be more extensive in some culture than others sexual harassment is
essentially a subjective concept. Any other standard would amount to an intolerable
infringement of individual autonomy.
Unwelcome Acts
Hall and ors V. A.A. Sheiban Ltd (1989)85 ALR 503
Whether the behavior was unwelcome is a subjective question from the perspective
of the particular person alleging sexual harassment.

Silence does not mean act is welcome

Styles V. Murray Meats Ltd (2005) VCAT 914
Even if the person experiencing harassment does not speak up or complain about it
the contact might still be unwelcome

Actual physical contact is not necessary to constitute sexual harassment Apparel

export Promotion Council V. A.K. Chopra
The absence of any actual physical contact or the attempt to molest the
complainants is immaterial, still, be considered as sexual harassment.

All physical contact cannot be termed as sexual harassment

Shantankumar V. Council of Scientific and Industrial research and others 2017 SCC
online Del 11327
Physical contact or advances would constitute sexual harassment provided such
physical contact is a part of the sexually determined behaviour. Mere accidental
physical contact even though unwelcome would not amount to sexual harassment, if
it is not sexually oriented.

Sec 3 Prevention of sexual harassment

1. No women shall be subjected to sexual harassment at any workplace
2. The following circumstances among other circumstances
3. If it occurs or present in relation to or connected with any act or behavior of
sexual harassment may amount to sexual harassment
a. Implied or explicit promise of preferential treatment in her employment or
b. Implied or explicit treat of detrimental treatment in her employment
c. Implied or explicit treat about her present or future employment status or
d. Interference with her work creating an intimidating or offensive or hostile
work environment for her or
e. Humiliating treatment likely to effect her health or safety
f. Sub clauses 1,2 and 3 called quid pro quo sexual harassment
g. Sub-clause 4 hostile working environment harassment
Implied/explicit threat of detrimental treatment in her employment
Saudi Arabian Airlines V. Sehnas Mudhadkal
If a female employee is coerced into submitting to unwelcome sexual advances in
return for a job benefit, other female employees who are qualified for but where
denied the benefit may be able to establish that sex was generally made a condition
for receiving the benefit
SETTING UP COMPLAINTS COMMITTEES
Sec 4 Constitution of Internal Complaints Committee
Every employer of a workplace by an order in writing constitutes a committee to be
known as the internal complaints committee.
Members
1. Presiding officer - senior woman employee
2. Not less than 2 members from amongst employees
3. One member from N.G.O or association committed to the course of woman.
4. one half of the total members so nominated shall be women
The presiding officer and every member of the internal committee shall hold office for
a period of 3 years from the date of their nomination as may be specified by the
employer
Removal of Presiding officer/member from ICC Grounds
1. Contravention of Sec 16
2. Convicted for an offence or enquiry in to an offence under any law for the time
being in force pending against him
3. Found guilty in any disciplinary proceedings or disciplinary proceedings
pending against him
4. So abused his position as to render his continuance in his office prejudicial to
the public interest

I.C.C a permanent body?

Shital Prasad Sharma V. State of Rajasthan
Under Section 4 of the Act, a committee has to be appointed for a term of 3 years to
look into the Complaints received against the employees from time to time
committing the act of sexual misconduct.
Presiding officer to be a senior woman employee
Shardaben Murlibhai Gurjar V. State of Gujarat 2015
It is important for the presiding officer to be of a senior rank within the organisation to
ensure that she would be senior to any respondent who is also an employee and
does not get influenced all intimidated by such respondent employee and also to
have the leadership experience for stewarding the IC .

Local Complaints Committee

Constitution of LCC sec 6 (1)
Every Dist. Officer for the District concerned Constitute LCC
To receive the sexual harassment complaints from
1. the establishments does not constituted ICC due to having less than 10
employees or
2. The complaint is against the employer himself
Composition of LCC Sec 7 (1)
Local committee shall consist of the following members to be nominated by the
district officer
1. Chairperson to be nominated from amongst the eminent women in the field of
social work and committed to the cause of women;
2. one Member to be nominated from amongst the women working in block,
taluka or tehsil or ward or municipality in the district;
3. two Members, of whom at least one shall be a woman, to be nominated from
amongst such non-governmental organisations or associations committed to
 the cause of women or a person familiar with the issues relating to sexual
harassment, which may be prescribed:
Provided that at least one of the nominees should, preferably, have a background in
law or legal knowledge:
Provided further that at least one of the nominees shall be a woman belonging to the
Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or
minority community notified by the Central Government, from time to time;
4. the concerned officer dealing with the social welfare or women and child
development in the district, shall be a member ex officio
Tenure Sec 7 (2)
The chairperson and every member of the local committee shall hold office for not
exceeding 3 years from the date of their appointment Removal of Chairperson/
Members Sec 7 (3)
Where the Chairperson or any Member of the 2 [Local Committee]—
(a) Contravenes the provisions of section 16; or
(b) Has been convicted for an offence or an inquiry into an offence under any law
for the time being in force is pending against him; or
(c) 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.

COMPLAINT
Complaint of Sexual Harassment Sec 9
a. Any aggrieved woman
b. Make a complaint in writing
c. To ICC or LCC
d. within a period of 3 months of the incident
In case of series of incidents, within a period of 3 months from the date of last
incident.
Where to file a complaint if ICC has not been constituted?
There can broadly be two circumstances in which aggrieved women may find herself
in a difficult decision to file a complaint with the IC firstly, in case an employer has
less than 10 employees in its workplace such employer is not bound to constitute IC
as per the law. Secondly, there may be a case where an employer has 10 or more
employees in a workplace but has not constituted IC in accordance with the
provisions of the Act. In either of the above two cases, an aggrieved woman can file
a complaint with LC

CONCILIATION
Conciliation Sec 10
1. ICC or LCC may
2. Before initiating inquiry
3. At the request of the aggrieved woman
4. Take steps to settle the matter through conciliation
Proviso
No monetary settlement shall be made as basis of conciliation Sec 10 (2) Record the
settlement and forward same to employer.
Sec 10 (3) Copies of the settlement to be given to the aggrieved woman and the
respondent.
Sec 10 (4) No further inquiry after the settlement
Conciliation and monetary settlement
Himanshu Shekhar V. State of Maharashtra 2017 Bom
As per the provisions of section 10, it is permissible for the IC for LC to settle the
dispute. However, no monetary settlement shall be made as a base for conservation.

INQUIRY
If conciliation is a failure
1. IC for LC as the case may be, shall, where the respondent is an employee
proceed to make an inquiry into the complaint in accordance with the
provisions of the service rules applicable to the respondent
2. In case of Domestic worker, LC if prima facie case exist forward the complaint
to police, within 7 days for registering case
3. If the respondent failed to comply the settlement arrived under Sec 10, IC or
LC can proceed with the case or forward the complaint to the police.
4. Both the parties shall give an opportunity to be heard and report to be made
available to both parties.
Notwithstanding anything contained in section 509 of IPC the IC for LC 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.
Ramesh Pal V. UOI
It is the bounden duty of the employer to treat sexual harassment as a misconduct
under the service rules and initiate action for such misconduct. The Act makes it
clear that the proceedings and report of IC has to be treated as a service matter.
For enquiry, ICC/LCC having powers of Civil Court
1. Summoning and enforcing the attendance and examination.
2. Discovery and production of documents Inquiry shall be completed within 90
days
Action during pendency of inquiry Sec 12
On a written request of aggrieved woman, LC or IC recommend the employer to
1. Transfer the aggrieved woman/ respondent to any other workplace
2. Grant leave to the aggrieved woman up to 3 months
3. Grant such other relief to the aggrieved woman
• Leave granted to be in addition to the leave she would be otherwise granted
• On recommendation of ICC/LCC employer should implement such
recommendations and report back to ICC/LCC
Object of action during pendency of inquiry
The objective of section 12 is to create a mechanism for providing certain relief to the
complainant during the pendency of the enquiry into the complaint. There are two
key factors with respect to the interim measures under the act, firstly, interim
measures are subject to the written request of the complainant and secondly, the
ICC has the discretion to either grand for disregard such request
Inquiry Report Sec 13
Report to Employer/ Dist. Officer & Parties Concerned
On completion of an enquiry under this act, the IC for the LC as the case may be
shall provide a report of its findings to the employer or district officer, within a period
of 10 days from the date of completion of the inquiry and such report be made
available to the concerned parties If the allegation is not proved recommend to
employer/ Dist. Officer that no action is required in the matter
If the allegation is proved
Recommend to employer/Dist. Officer
1. Action for sexual harassment as a misconduct in accordance with the service
rules
2. If no service rules- such other action
3. Deduct such sum from the respondent from salary or wages to the aggrieved
woman/ legal heirs
Proviso
If the employer is unable to deduct the sum due to the respondent's absence
from duty direct him to pay such sum to the aggrieved woman
If the respondent failed to pay IC/LC forward the order to Dist. Officer and
recover the sum as arrear of land revenue
The employer/ Dist. Officer act on recommendation within 60 days

Is the recommendation of IC binding on employer?

Prathap Mandal V. UOI
The question is whether the employer may deviate from the recommendation and
take action which may be lighter or harsher than the action recommended by the LC.
The act directs that the employer is required to take time-bound action based strictly
upon the recommendations made by the ICC no scope for deviation seems to lie on
the face of the section
Inquiry Report could be set aside if findings are not recorded appropriately Reshma
M.G. V. UOI
The court held that if the finding entered by the committee was not recorded
following the correct procedure laid down for that purpose, then it would be affecting
the very foundation of the same and in that way, it can be contended that the inquiry
report is liable to be set aside
Punishment for false or malicious complaint and false evidence Sec 14
1. IC/LC arrives a conclusion that the allegations against the respondent is
malicious or
2. Aggrieved woman/ any other person made the complaint knowing fully well
that the complaint is false
3. Aggrieved woman/ any other person produced any forged/ misleading
document
It may be recommended to the employer or District officer to take action against the
woman or such person as the case may be in accordance with the provisions of the
Service Rules applicable to them
Proviso 1
Mere inability to substantiate the complaint/ provide adequate proof need not attract
the action
Proviso 2
Malicious intent on the part of the complainant after the inquiry in accordance with
the procedure
IC/LC arrives a conclusion that any witness has given false evidence / produced any
forged documents may recommend the employer/ Dist. Officer to take action in
accordance with the service rules applicable to such witness.
Determination of compensation Sec 15
For the purpose of determining the sums to be paid to the aggrieved woman under
section 13, the Internal Committee or the Local Committee, as the case may be,
shall have regard to—
 (a) The mental trauma, pain, suffering and emotional distress caused to the
aggrieved woman;
(b) The loss in the career opportunity due to the incident of sexual harassment;
(c) Medical expenses incurred by the victim for physical or psychiatric treatment;
(d) The income and financial status of the respondent;
(e) Feasibility of such payment in lump sum or in instalments.
Prohibition of publication or making known contents of complaint and inquiry
proceedings Sec 16
Notwithstanding anything contained in the Right to Information Act, 2005 (22 of
2005) .The contents of the complaint made under section 9, the identity and
addresses of the aggrieved woman, respondent and witnesses, any information
relating to conciliation and inquiry proceedings, recommendations of the Internal
Committee or the Local Committee, as the case may be, and the action taken by the
employer or the District Officer under the provisions of this Act Shall not be
published, 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 witnesses
Applicability of RTI Act
Section 15 is in fact a non-obstante provision ensuring that the information with
regard to a sexual harassment complaint is not subject to the provisions of The Right
to Information act 2005
Penalty for publication Sec 17
Where any person entrusted with the duty to handle or deal with the complaint,
inquiry or any recommendations or action to be taken under the provisions of this
Act, contravenes the provisions of section 16, he shall be liable for penalty in
accordance with the provisions of the service rules applicable to the said person or
where no such service rules exist, in such manner as may be prescribed.
Appeal Sec. 18
Any person aggrieved from the recommendations made by the IC after the allegation
is proved or the allegation is not proved after the inquiry or prove that the complaint
is false or malicious or publication of prohibited information under the Act.
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 other law for the time being in force, the person aggrieved may
prefer an appeal in such manner as may be prescribed.
The appeal shall be preferred within a period of ninety days of the recommendations.

Interference by Courts: When can courts be Appellate Authority

S Raju Iyer V. JNU
Delhi High Court observed that it did not sit as an appellate court to reappraise the
finding of facts and conclusions arrived at by the departmental authority and was
entitled to interfere with the orders passed in the departmental proceedings only if
the said orders were wholly perverse or violative of the laws of the organisation or in
violation of the principles of natural justice. It also said that in no manner, the
exhaustive and analytical findings of the enquiry committee can at all be interfered
by the court
Duties of the Employer Sec 19
Every employer shall—
(a) provide a safe working environment at the workplace with shall include safety
from the persons coming into contact at the workplace;
(b) Display at any conspicuous place in the workplace, the penal consequences
of sexual harassments; and the order constituting, the Internal Committee
under sub-section (1) of section 4;
(c) Organise workshops and awareness programmes at regular intervals for
sensitizing the employees with the provisions of the Act and orientation
programmes for the members of the Internal Committee in the manner as
may be prescribed;
(d) Provide necessary facilities to the Internal Committee or the Local
Committee, as the case may be, for dealing with the complaint and
conducting an inquiry;
(e) Assist in securing the attendance of respondent and witnesses before the
Internal Committee or the Local Committee, as the case may be;
(f) Make available such information to the Internal Committee or the Local
Committee, as the case be, as it may require having regard to the complaint
made under sub-section (1) of section 9;
(g) Provide assistance to the woman if she so chooses to file a complaint in
relation to the offence under the Indian Penal Code (45 of 1860) or any other
law for the time being in force;
(h) Cause to initiate action, under the Indian Penal Code or any other law for the
time being in force, against the perpetrator, or if the aggrieved woman so
desires, where the perpetrator is not an employee, in the workplace at which
the incident of sexual harassment took place; 12
(i) Treat sexual harassment as a misconduct under the service rules and initiate
action for such misconduct;
(j) Monitor the timely submission of reports by the Internal Committee
Annual Report Sec 21
The Internal Committee or the Local Committee, as the case may be, shall in each
calendar year prepare, an annual report and submit the same to the employer and
the District Officer.
(2) The District Officer shall forward a brief report on the annual reports received
under subsection (1) to the State Government.
Duties of the Appropriate Government Sec 23 - 25
1. Appropriate Government to monitor implementation and maintain data.
2. Appropriate Government to take measures to publicise the Act
3. Power to call for information and inspection of records.
Act not in derogation of any other Law
The provisions of this Act shall be in addition to and not in derogation of the
provisions of any other law for the time being in force.
Q 9. Discuss sexual Harassment of Women at Workplace as a Problem.
Sexual Harassment is one of the biggest problems our women are facing today in
different sectors of life. We rarely pass through a week without a reminder of these
kinds of incidents which should be termed as "social problems".
It is a growing problem and all are trying their best to combat this problem by
adopting new policies and measures. The definition of sexual harassment varies
from person to person and from jurisdiction to jurisdiction. The definition of Sexual
Harassment in simple words is "any unwanted or inappropriate sexual attention. It
includes touching, looks, comments, or gestures".
A key part of Sexual Harassment is that it is one sided and unwanted. There is a
great difference between Sexual Harassment and Romance and Friendship, since
those are mutual feelings of two people. Often Sexual Harassment makes the victim
feel guilty, but it is important for the victim to remember that it is not her fault; the
fault lies totally on the person who is a harasser. Sexual Harassment affects all
women in some form or the other. Lewd remarks, touching, wolf whistles, looks are
part of any women's life, so much so that it is dismissed as normal. Working women
are no exception. In fact, working women most commonly face the backlash to
women taking new roles, which belong to male domains within patriarchy. Sexual
Harassment at work is an extension of violence in everyday life and is discriminatory,
exploitative, thriving in the atmosphere of threat, terror and reprisal.
Many times fear is involved in Sexual Harassment because it isn't physical
attraction, it's about power. In fact, many Sexual Harassment incidents take place
when one person is in a position of power over the other; or when a woman has an
untraditional job such as police officer, factory worker, business executive, or any
other traditionally male job. It has also been observed that there are lots of sexual
harassment incidents taking place in the workplace, but the victims fear to report the
same to the higher officials or the concerned authorities. They fear to file a complaint
against such offenders who does such heinous acts. The fear is due to the fear of
boss, fear of guilt in the society that they might have to face, fear of being thrown out
of the job or being demoted, fear that it will jeopardize their career as in it will put a
blot on their resume and would render them un-hirable. Some women have lack of
knowledge- they do now know what exactly qualifies a sexual harassment and fail to
report the same.
Every country is facing this problem daily. No female worker is safe and the sense of
security is lacking in them. There are certain developments in laws of many
countries to protect women workers from Sexual Harassment.
Q 10 discuss the genesis of Vishaka guidelines laid down by the SC of India.
VISHAKA v. STATE OF RAJASTHAN, 1997: A LAND MARK JUDGEMENT.
Indian judiciary has played significant role in the evolution of industrial jurisprudence.
It has not only made a distinct contribution to laws relating to industrial relations,
social security and minimum standards of employment but has innovated new
methods and devised new strategies for the purpose of providing access to justice to
weaker sections of society who are denied their basic rights and to whom freedom
and liberty have no meaning. Indeed, the court assumed the role of protectionist of
the weaker by becoming the court for the poor and struggling masses of the country.
Further, the courts at times played a role of legislators where law is silent or vague.
Indeed, a number of legislation and legislative amendments have been made in
response to the call by the judiciary. The Act is one among such legislations.
The Genesis
In 1992, a rural level change agent, Bhanwari Devi, was engaged by the state of
Rajasthan as a Sathin (meaning 'friend') to work towards the prevention of the
practice of child marriages. During the course of her work, she prevented the
marriage of a one year old girl in the community. Her work was met with resentment
and attracted harassment from men of that community. Bhanwari Devi reported this
to the local authority but no action was taken. That omission came at great cost -
Bhanwari was subsequently gang raped by those very men. The Bhanwari Devi
case revealed the ever-present sexual harm to which millions of working women are
exposed across the country, everywhere and everyday irrespective of their location.
It also shows the extent to which that harm can escalate if nothing is done to check
sexually offensive behaviour in the workplace. Based on the facts of Bhanwari Devi's
case, a Public Interest Litigation (PIL) was filed by Vishaka and other women groups
against the State of Rajasthan and Union of India before the Supreme Court of India.
It proposed that sexual harassment be recognized as a violation of women's
fundamental right to equality and that all workplaces/ establishments/ institutions be
made accountable and responsible to uphold these rights. In this landmark
judgment, the Supreme Court of India created legally binding guidelines basing it on
the right to equality and dignity accorded under the Indian Constitution as well as by
the UN Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW). It included:
 A definition of sexual harassment
 Shifting accountability from individuals to institutions
 Prioritizing prevention
 Provision of an innovative redress mechanism.
The Supreme Court defined sexual harassment as any unwelcome, sexually
determined physical, verbal, or non-verbal conduct. Examples included sexually
suggestive remarks about women, demands for sexual favours, and sexually
offensive visuals in the workplace. The definition also covered situations where a
woman could be disadvantaged in her workplace as a result of threats relating to
employment decisions that could negatively affect her working life. It placed
responsibility on employers to ensure that women did not face a hostile environment,
and prohibited intimidation or victimization of those cooperating with an inquiry,
including the affected complainant as well as witnesses.
It directed for the establishment of redressal mechanism in the form of Complaints
Committee, which will look into the matters of sexual harassment of women at
workplace. The Complaints Committees were mandated to be headed by a woman
employee, with not less than half of its members being women and provided for the
involvement of a third-party person/ NGO expert on the issue, to prevent any undue
pressure on the complainant. The guidelines extended to all kinds of employment,
from paid to voluntary, across the public and private sectors.
Vishaka established that international standards/ law could serve to expand the
scope of India's Constitutional guarantees and fill in the gaps wherever they exist.
India's innovative history in tackling workplace sexual harassment beginning with the
Vishaka Guidelines and subsequent legislation has given critical visibility to the
issue. Workplaces must now own their responsibility within this context and ensure
that women can work in safe and secure spaces.
Apparel Export Promotion Council v. A.K Chopra, (1999) 1 SCC 759
The Vishaka judgment initiated a nationwide discourse on workplace sexual
harassment and threw out wide open an issue that was swept under the carpet for
the longest time. The first case before the Supreme Court after Vishaka in this
respect was the case of Apparel Export Promotion Council v. A.K Chopra. In this
case, the Supreme Court reiterated the law laid down in the Vishaka Judgment and
upheld the dismissal of a superior officer of the Delhi based Apparel Export
Promotion Council who was found guilty of sexually harassing a subordinate female
employee at the workplace. In this judgment, the Supreme Court enlarged the
definition of sexual harassment by ruling that physical contact was not essential for it
to amount to an act of sexual harassment.
The Supreme Court asserted that in case of a non-compliance or non- adherence of
the Vishaka Guidelines, it would be open to the aggrieved persons to approach the
respective High Courts.
National Legislative Frameworks
In India, the Vishaka Guidelines was the first ever legal action that provided a broad
framework for preventing and addressing cases of sexual harassment of women
within the workplace. It recognized that sexual harassment of women in the
workplace resulted in the violation of their fundamental rights of gender equality,
right to life and liberty, and the right to carry out any occupation, trade or profession.
Q11. Is sexual harassment violation of Fundamental Rights guaranteed under
the Indian Constitution explain.
Sec 2 (n) "sexual harassment" includes any one or more of the following unwelcome
acts or behaviour (whether directly or by implication) namely: -
i. physical contact and advances; or
ii. a demand or request for sexual favours; or
iii. making sexually coloured remarks; or
iv. showing pornography; or
v. any other unwelcome physical, verbal or nonverbal conduct of sexual nature;
Since sexual harassment of women at employment place is against the principle of
gender equality, it is violation of the fundamental right, particularly Articles 14, 15 of
the Constitution which enshrined principles i.e., equality before law and prohibition of
discrimination on grounds of religion, race, caste, sex and place of birth. Such sexual
harassment also violates Article 21 of the Constitution which deals with the
protection of life and personal liberty.
As the Supreme Court observed in Vishaka v. State of Rajasthan that in the
absence of domestic law occupying the field to formulate effective measures to
check the evil of sexual harassment of working women at all work places, the
contents of International Conventions and norms are significant for purpose of
interpretation of the guarantee of gender equality, right to work within human dignity
in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against
sexual harassment implicit therein. Any International Convention not inconsistent
with the fundamental rights and in harmony with its spirit must be read into these
provisions to enlarge the meaning and content thereof to promote the object of the
constitutional guarantee. This is implicit in Article 51(c) and the enabling power of the
Parliament to enact laws for implementing the International Conventions and norms
by virtue of Article 253 read with Entry 14 of the Union List in 7th Schedule of the
Constitution. Article 73 also is relevant. It provides that the executive power of the
Union shall extend to the matters with respect to which Parliament has power to
make laws. The executive power of the Union is, therefore, available till the
Parliament enacts legislation to expressly provide measures needed to curb the evil.
The power of Supreme Court under Article 32 for enforcement of the fundamental
rights and the executive power of the Union have to meet the challenge to protect
the working women from sexual harassment and to make their fundamental rights
meaningful. Governance of the society by the rule of law mandates this requirement
as a logical commitment of the Constitutional scheme.
The meaning and content of the fundamental rights guaranteed in the Constitution of
India are of sufficient amplitude to encompass all the facets of gender equality
including prevention of sexual harassment or abuse.
Q 12. Explain the committees under sexual harassment act of 2013 Internal
Complainants Committee (Sec. 4)
Section 4 provides elaborated provisions for constitution of Internal Complainants
Committee (ICC) imposing statutory obligation on every employer of a workplace to
constitute the said committee for the purpose of effective implementation of the
object of the Act. The committee has to be constituted at each office or branch with
10 or more employees. The committee will be headed by a senior-level woman
employee. Details of the committee and members must be displayed at the
workplace. All employers must provide necessary facilities for the ICC to deal with
the complaint and to conduct an inquiry. Each ICC is required to prepare an annual
report to the employer.
The committee must have not less than two members from amongst employees who
are committed to the cause of women, or have experience in social work or have a
good legal knowledge. One member must be from an NGO or such Association. At
least half of the committee must comprise women. In case of establishments with
less than ten members and no complaints committee, the appropriate government
must constitute a Local Complaints Committee in every district.
Local Complaints Committee (Sec. 5-8)
Central and State Governments are mandated to notify either of the following
individuals to be a District Officer for each District to implement the requirements
under the Act:
• District Magistrate • Additional District Magistrate • Collector • Deputy Collector.
Every District Officer must constitute a Local Complaints Committee (LCC) to
receive complaints of sexual harassment from establishments where the Internal
Complaints Committee (ICC) has not been constituted due to having less than 10
employees or if the complaint is against the employer himself.
Each LCC is required to prepare an annual report and submit it to the District Officer.
The District Officer must designate one nodal officer in every block, taluka and tehsil
in rural or tribal area and ward or municipality in the urban area, to receive
complaints and forward it to the concerned LCC within 7 days.