In a bid to cover the issue of sexual harassment and violence against as also the situations which create discriminating circumstances against women in the broadest sense, the report dedicates an entire chapter to “sexual harassment at the work place”. The report while analysing the Supreme Court landmark judgment in the Vishaka Case makes a critical comment on the shortcomings of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012. This Bill saw no debate when it was introduced in Lok Sabha on 3rd September 2012 and is now pending approval in the Rajya Sabha.
Vishaka Case was a public interest litigation which sought enforcement of Article 14, 19 and 21 in view of the rampant violation of these rights. The report observed that notwithstanding the directions of the Supreme Court there is no empirical evidence to evaluate the conditions of the working women in the country and whether the same has improved in the recent past. The action in this case was initiated in order to realise the goal gender equality. It may further be highlighted that the report while commenting on this judgement made the following important observations with regards the role of judiciary:
“In a certain sense, the judiciary is also the enforcing authority for fundamental rights. In Vishakha, the principles of independence of the judiciary were also referred to and in particular the objective and function of the judiciary was stated as follows:-
a) To ensure that all persons are able to live securely under the rule of law;
b) To promote within the proper limits of the judicial function, the observance and attainment of human rights;
c) To administer the law impartially among persons and between persons and the State.
The Vishakha judgment made it clear that gender equality and the right to a secure workspace was part of the fundamental rights guaranteed under the Constitution, and that it was the duty of the judiciary to ensure (as a part of the Constitutional machinery) that the State enforced these rights, especially in view of the nation’s obligation to comply with covenants of international treaties and conventions. It is necessary that the judicial system must also cooperate in enhancing the credibility and faith of people in the rule of law.” We are of the utmost confidence that judiciary will lead by example and will ensure that speedy justice to rape victims is given. We must point out that apart from the various recommendations which we have made for the protection of the juveniles including the females and children who are rescued from trafficking, we are of the opinion that the inadequacy of judicial personnel, which is cited as a reason for non-expeditious disposal of cases can be immediately and effectively addressed in the following manner:
(a) Retired Judges of the Supreme Court, High Court and the District Courts could be appointed as adhoc judges to expeditiously dispose pending cases;
(b) Parliament should consider equalisation of age of retirement of the subordinate judiciary, the High Court and the Supreme Court so that manpower will be immediately available;
(c) Infrastructure for ad hoc judges can be easily identified in respect of unutilised government buildings and be made available.
(d) Adjournment should not be allowed as a matter of course in respect of cases specially fixed for hearing before the ad-hoc courts, or even before regular courts.
(e) Public prosecutors should be appointed on the basis of merit in accordance with the
recommendations made by the Chief Justice of the High Court and not on the basis of any political considerations.
(f) Cases of rape and sexual assault should be tried by women prosecutors, and, to the extent possible, by women judges. In any event, all judges of the subordinate and higher judiciary should receive training in gender sensitivity.”
The report’s take on the Sexual Harassment Bill, 2012
- Section 10(1) of the Sexual Harassment Bill, 2012 stipulates that on receipt of complaint of sexual harassment, conciliation must be attempted between the complainant and respondent. This is in violation of the mandate prescribed by the Supreme Court in Vishakha, which was a direction to the State ‘to ensure a safe workplace / educational institution for women’. In this context, the attempts to get justice cannot be muscled by attempts at conciliation. There are certain areas, such as contractual matters where there could be conciliation, but in matters of harassment and humiliation of women an attempt to compromise the same is indeed yet another way in which the dignity of women is undermined. The committee recommends that Section 10(1) of the Bill, in so far as it proposes conciliation as a first step, must be deleted.
- Looking at Section 14 of the Sexual Harassment Bill, 2012 the committee’s report notes that “We notice from the provisions of the Bill that Section 14 appears to penalise a woman for filing a false complaint. We think that such a provision is a completely abusive provision and is intended to nullify the objective of the law. We think that these ‘red-rag’ provisions ought not to be permitted to be introduced and they show very little thought.”
- As far as Section 11(ii) is concerned, which has enabled the internal complaints committee to be given powers of a civil court for summoning discovery and production of documents is concerned, this amounts to colourable legislation because powers of courts cannot be simply conferred upon domestic committees, particularly when the composition of the internal committee does not have any legal background. We are also of the opinion that the Bill does not specify any training to the committee for fulfilling these duties. This is in distinction to the composition of the local complaints committee in which at least one member has to preferably have a background in law or legal knowledge.
- As far as clause 6 of the Bill is concerned, which contains ambiguous guidelines for constitution of the local complaints committee, we notice that the Bill provides that every district officer shall constitute a local complaints committee in the district. It also prescribes that an additional local complaints committee shall be constituted at the block level to address complaints in certain cases. However, the jurisdiction and functions of these commissions is unclear. This needs to be clarified.
- The Committee further opined that “… suitable provisions should be added to the Bill to make payment of compensation for a woman who has suffered sexual harassment which should be paid by the company which compensation will be determined by a Tribunal.”
The report with giving suggestions has also observed that the Bill is unsatisfactory and does not effectuate adequately the spirit of the Vishakha vs. State of Rajasthan.
The report gave the following suggestions for a more effective law:
- Even though definition of sexual harassment under section 2(n) of the Bill is found to be satisfactory the report notes that some clarifications are needed with respect to the word “unwelcome”. This word should give due consideration to both subjective and objective criteria to provide adequate protection to women of differing perceptions. The following explanation is suggested to be inserted:
“Explanation: In determining whether the behaviour or act complained of is unwelcome, one of the factors to be given due weight shall be the subjective perception of the complainant.”
- In house dealing of the complaints may dissuade women from coming forward and result as counterproductive to the intention of the Bill, setting up of a separate Tribunal known as Employment Tribunal to receive and adjudicate all the complaints may better serve the ends of justice.
The report further suggests that “an Employment Tribunal be set up which should comprise of two retired judges (of which one must be a woman), two eminent sociologists and one social activist, who has sufficient experience in the field of gender-based discrimination. The members of the Tribunal should be appointed by a collegium consisting of the Chief Justice of the High Court (or his nominee judge) of the concerned state or a District Judge, if the appointment is to be made in a Taluka, as the case may be, along with no less than one eminent female sociologist and one female advocate of the local High Court or District Court, as the case may be.”
“…We therefore suggest that the Tribunal ought to follow a summary procedure for the disposal of complaints so as to expedite the resolution of disputes.”
- On the point of the establishments to which the proposed Act shall apply the report observed “Since each and every act of sexual harassment at the workplace is a form of sex discrimination which in effect denies a woman her fundamental rights guaranteed under the Constitution, it is proposed that any legislation dealing with the said issue should have the widest possible application so as to take within its scope every female member of the national workforce. Therefore, any legislation must apply to all government institutions, all public bodies, all panchayats, all establishments covered under the Factories Act and the Industrial Disputes Act and all employers in the private sector who are not otherwise covered by the categories listed above.” Also that “the proposed legislation should also cover women in the armed forces and police, agricultural workers and women students and staff of all schools and educational institutions. The present definition appears to exclude government and other educational institutions. It is also proposed that domestic workers should also fall within the ambit of the proposed legislation. This would facilitate protection from situations where their wages are withheld arbitrarily as also to provide a basis for monetary compensation in the event of sexual harassment/assault besides steps taken under the general criminal law.”
- The report also suggests that the sexual harassment policy of the establishment should be prominently displayed within the premises with complete details on the procedure for making a complaint. The same may also form part and parcel of the appointment letter. Also that “Any dereliction in the duty of the employer to prominently disseminate the sexual harassment policy in the work place and the mode for making a complaint ought to be met with a fine in the first instance, and imprisonment of the concerned officer for a repeat offence.”
- The report further suggests that the requirement of filing a written complaint should not be kept. The complainants should be free to approach the Tribunal and give oral complaints which can then be transcribed.
- The limitation period of 3 months may work against the interest of justice it is therefore suggested that no fixed time period of limitation be prescribed and that the only expectation be that a complaint shall be made within a reasonable period of time with regard to the facts and circumstances surrounding the making of such a complaint and the personal circumstances of the complainant. A determination of what amounts to a reasonable period of time shall be made by the Tribunal which may then be refined through the development of case law on the point.
- The report further suggests that the complainant shall not be permitted to withdraw a complaint once made so as to ensure that all cases of sexual harassment are properly dealt with under the law of the land. We apprehend that permitting either mandatory conciliation, even if at the instance of the complainant, or permitting the complainant to withdraw her complaint will negatively impact the ability of women to bring valid complaints before the Tribunal. It cannot be gainsaid that the myriad pressurizing influences that are brought to bear upon women in our society may act to disable her from pursuing a valid complaint.
- The employer will be free to set up internal complaint redressal mechanism but the complainant cannot be forced to take the aid of the same. Further the employers may undertake any steps to educate/ sensitize the employees.
- Further it has been laid down that the liability cannot be saddled on the employers in every case except where “ the employer has (a) by an act or omission facilitated the specific act of sexual harassment complained of; (b) permitted the creation of an environment at the workplace where acts of sexual harassment have become widespread and systemic; or (c) been found in breach of any other obligation under the Act, including but not limited to, the proper disclosure of the sexual harassment policy and the mode of filing of a complaint or the forwarding of any complaint received by either the employer, or by any person appointed by the employer on its behalf, to the Tribunal at the instance of the complainant.”
- It is also suggested that under the proposed section 12 of the Bill the powers discussed should be exercisable only with the consent of the aggrieved women. In the event that the women is not agreeable to the transfer or the grant of leave then no such action ought to be taken against her will so as to ensure that she does not foster either a sense of bias or alienation merely on account of the fact that she exercised her rights under the proposed legislation to file a complaint of sexual harassment. The present Act does not seem to take account of the victim’s wishes.
- The report further strongly recommends that the Tribunal should be mandated to conduct periodic inspection of the premises to access the compliance with the proposed Bill. The purpose of these visits would include gender sensitization and not merely the implementation of the law.
- The universities (like JNU) where the internal complaints committee is effectively functioning should share their experiences with others.