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When India became a signatory and ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) its main objective was to have basic framework to prevent and prohibit any kind of discrimination against women and provide the necessary redressal to the aggrieved. After signing CEDAW, India had to either accept the guidelines of CEDAW as its domestic law or create its own domestic law on similar lines and our country chose to stick to the CEDAW regulations. As times changed, the need for a more progressive statute arose, a statute that was specific to our country because the disadvantage of following a general set of rules is that they tend to omit problems specific to a particular country. To address this issue, after Vishaka vs the state of Rajasthan the honorable Supreme Court, in 1997 issued a set of guidelines known as Vishaka Guidelines. These guidelines remained the thumb rule to deal with sexual harassment in workplace till the year 2013, when the government enforced the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013(referred to as ‘the Act’ from now on). This is an uber important act and still the awareness regarding it is very low. Due to this lack of awareness many perpetrators get away scot free and the aggrieved women do not get the justice they deserve. Through this article we will try to shed some light on the various important aspects of this act.
With improved access to education and employment, millions of Indian women are entering the country’s workforce today. Many of these women face sexual harassment in their respective workplaces on a daily basis. Due to various reasons like cultural norms, shame, fear of losing the job, these incidents go underreported. This act, seeks to bring about gender equality in workplaces, promote inclusive growth and social development, get rid of hostile environment in workplaces and enforce the right to equality given to women under articles 14, 15 and 19(1)(g) of the Constitution of India. It also seeks to realise article 42 of the Indian Constitution which states that the government is responsible for providing just and humane conditions in the workplace.
The major objectives of this act are:-
Prohibition of the act of sexual harassment at the workplace through all the means possible
Prevention of such acts to create a safe work environment for the females
To establish a proper Redressal mechanism and make the process involved easy and conducive
The Act has been sculpted keeping the Vishaka Guidelines and the rules laid down in CEDAW in mind in order to ensure women’s right to workplace equality, free from sexual harassment by complying with principles of Prohibition, Prevention and Redressal. The act provides a civil remedy and is an aiding tool to all the other laws that are currently in force. Any woman who wishes to report incidents of sexual harassment in workplace has the right to take both, criminal and civil legal recourse.
In 2010, the Delhi High Court in the case of Dr. Punita K. Sodhi v. Union of India & Ors. endorsed the view that sexual harassment is a subjective experience and the complaint should be analysed from the complainant’s perspective. The Act also operates on a similar principle. Section 3 of the Act defines the aggrieved woman, workplace and sexual harassment and also highlights the key elements of workplace sexual harassment.
“Sexual Harassment” includes anyone or more of the following unwelcome acts or behaviour(whether directly or by implication), namely:
1. Physical contact or advances;
2. A demand or request for sexual favours;
3. Making sexually coloured remarks;
4. Showing pornography;
5. Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
The first step to prevent Sexual Harassment in workplace is its recognition. Workplace sexual harassment is any behavior that is unwelcoming or sexual in nature. It could be a subjective experience as well because according to the Act the impact and not the intent matters because what some males may not think of as harassment, might be harassment from the perspective of the aggrieved.
In the handbook issued on the Act by the Ministry of Women and Child Development, a great deal of emphasis has been laid on differentiating between ‘welcomed’ and ‘unwelcomed’ acts. It gives a list of acts that the aggrieved woman may find unwelcoming in nature. Acts considered under the definition of unwelcome are that:
Make her feel bad
Are one sided in nature
Make the aggrieved feel powerless
Are unwanted or uncalled for
Are illegal in nature
Cause negative self-esteem
This list is not exhaustive. Apart from these acts, any other act that seems unwelcomed to a woman will also fall under this category.
The right of every woman working or visiting any workplace whether in the capacity of regular, temporary, ad hoc, or daily wages basis are protected under this act. She could be a student, a contractor, with or without the knowledge of the principal employer, a co-worker, probationer, trainee, an apprentice or called by any such name. They could be working in return for some form of remuneration or on a voluntary basis or otherwise. The act also covers a woman, who is working in a dwelling place or house. Any woman who falls under the above-listed categories can seek forum and redressal under this act.
A workplace is defined as “any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.” As per this definition, a workplace covers both organised and unorganised sectors.
As per this act, workplace includes:
Government organisations, including Government company, corporations and cooperative societies;
Private sector organisations, venture, society, trust, NGO or service providers etc. providing services which are commercial, vocational, educational, sports, professional, entertainment, industrial, health related or financial activities, including production, supply, sales, distribution or service;
Places visited by the employee (including while on travel) including transportation provided by employer;
A dwelling place or house.
The Act defines unorganised sector as:
Any enterprise owned by an individual or self-employed workers engaged in the production or sale of goods or providing services of any kind;
Any enterprise which employs less than 10 workers.
This act extends to both public and private places and to the armed forces as well after the decision of the Armed Forces Tribunal. It also covers schools and colleges
An employer refers to:
1. The head of the department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the Appropriate Government or local authority or such officer specified in this behalf.
2. Any person (whether contractual or not) responsible for the management, supervision and control of a designated workplace not covered under clause (i).
3. A person or a household who employs or benefits from the employment of domestic workers or women employees.
Every employer shall –
i. Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
ii. Display at any conspicuous place in the workplace, the penal consequences of sexual harassment; and the order constituting, the Internal Committee;
iii. Organize workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the Act and orientation programs for the members of the Internal Committee in the manner as may be prescribed;
iv. Provide necessary facilities to the Internal Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
v. Assist in securing the attendance of respondents and witnesses before the Internal Committee;
vi. Make available such information to the Internal Committee, as it may require having regard to the complaint;
vii. Provide assistance to the women of she so chooses to file a complaint in relation to the offence under IPC (45 of 1860) or any other law for the time being in force;
viii. Cause to initiate action, under the Penal Code (45 of 1860) 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 at workplace;
ix. Treat sexual harassment as misconduct under the service rules and initiate action for such misconduct;
x. Monitor the timely submission of reports by the Internal Committee.
Sexual harassment in a workplace results in violation of a woman’s right to equality and due to one reason or another most of these incidents go unreported. Due to this low incidence of reporting, the true prevalence is still unknown. In order to deal with this, the mechanism laid down in the act is facilitating and conducive. Although the mechanism is smooth, where this act lacks is that the level of awareness regarding its provisions is very low. Female agricultural workers constitute approximately more than half of the female workforce in India; and they don’t even know that such an act exists. The Government must start an awareness drive so that women are aware of their fundamental rights and potential offenders also know that women are not alone anymore, they have a competent legislation to ensure their safety in workplaces.
Whether you need help with understanding your rights as a working woman or you need an efficient lawyer who can help you achieve the justice you deserve, MyAdvo is standing tall with every woman who is in need of any kind of legal or techno-legal assistance.
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