Paving the way
The Supreme Court’s Vishakha Guidelines were the foundation of the law we now have that addresses workplace sexual harassment. It had several significant provisions.
The employer (and/or other responsible people in a workplace) was duty-bound to prevent or deter sexual harassment, to set up processes to resolve, settle or prosecute in such cases, to support employees even when a third party was responsible for harassment, and to sensitise female employees to their rights and the guidelines.
The SC said that sexual harassment included ‘such unwelcome sexually determined behaviour, whether directly or by implication, such as: physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of sexual nature.’
If an act amounted to a specific offence under the Indian Penal Code or any other law, employers had to take action to punish the guilty; if an act was not a legal offence or a breach or service rules, the employer had to create mechanisms to address and redress complaints in a time-bound manner.
The Guidelines also decreed the setting up of a complaints committee, and a special counsellor or other support service, assuring confidentiality. This committee would be headed by a woman, have women as at least half its members, and, to pre-empt any undue pressure from senior levels, include a third party such as an NGO familiar with the challenges of sexual harassment.
Central and State governments should adopt suitable measures to ensure that private sector employers implement the guidelines.
From guidelines to law
The National Commission for Women submitted drafts of a Code of Conduct for the Workplace in 2000, 2003, 2004, 2006 and 2010.
The Protection of Women against Sexual Harassment at Workplace Bill was introduced by the then Women and Child Development minister, Krishna Tirath, in 2007.
It was approved by the Union Cabinet in January 2010, tabled in the Lok Sabha in December 2010. It was referred to the Parliamentary Standing Committee on Human Resources Development, which published its report in November 2011. The Cabinet made amendments in May 2012.
The amended Bill was passed by the Lok Sabha in September 2012, the Rajya Sabha in February 2013, signed by the President in April 2013 and came into force on December 9, 2013 as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.
The law today
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act retains the essence of the Vishakha Guidelines, and expands on its provisions.
It widens the definition of ‘aggrieved woman’ to include all women, irrespective of age and employment status, and it covers clients, customers and domestic workers.
It expands ‘workplace’ beyond traditional offices to include all kinds of organisations across sectors, even non-traditional workplaces (for example those that involve telecommuting) and places visited by employees for work.
It mandates the constitution of the internal complaint committee (ICC) — and states the action to be taken if an ICC is not formed — and the filing of an audit report of the number of complaints and action taken at the end of the year.
It lists the duties of the employer, like organising regular workshops and awareness programmes to educate employees about the Act, and conducting orientation programmes for the members of the ICC.
If the employer fails to constitute an ICC, or does not abide by any other provision, they must pay a fine of up to ₹50,000. If the offender is a repeat offender, the fine gets doubled. If the employer has been previously convicted of an offence under the Act, he shall be convicted for twice the punishment, and the second offence can also lead to cancellation or non-renewal of his licence.
A Metropolitan Magistrate or a Judicial Magistrate of the first class shall try the offence punishable under the Act.