Sexual harrassment at the workplace. Still struggling for an effective legislation

SEXUAL HARASSMENT AT THE WORKPLACE:  STILL STRUGGLING FOR AN EFFECTIVE LEGISLATION

Newsletter Jan - Aug 2011

Many reasons to pull the current Bill off the Table of the Parliament!

In 1997 the Supreme Court, in the case of Vishakha vs State of Rajasthan concerning the rape of Bhanwari Bai, an employee of Government’s Women’s Development Programme in Rajasthan, had laid down guidelines to prevent sexual harassment against women at the workplace, known as Vishakha guidelines. Since then, thousands of women have sought justice through these, and a campaign around them has been a key part of Saheli activity. Our play, titled Mahaul Badalna Hai, has been an effective tool to break the silence on the issue and initiate vibrant discussions. We have also served on Complaints and Enquiry Committees in Central Ministries, NGOs, colleges, and so on, and aided many individual cases. In addition, we have worked with other women’s groups and the National Commission of Women for enactment of a law.

On 7 Dec, 2010 Bill 144 of 2010 was placed before the Lok Sabha, titled ‘Protection of Women against Sexual Harassment at the Workplace’ (henceforth called the Bill). The current draft is better than the earlier versions but still far from ready for enactment. What has followed since has been intense discussion in the media on a couple of highly problematic provisions in the Bill, but many other major concerns also remain. To highlight a few:

Section 14 (1) of the current Bill that seeks ‘Punishment for false and malicious complaint and false evidence’ earned much newsprint. Quite obviously, this is an absolutely unacceptable clause. In our presentation before the Standing Committee of the Parliament we have argued that “the provision for counter complaints built into the law is unprecedented in our legal history, and it is a cause for serious concern that a gender protection law should be the first to bring in this kind of clause. This, when it is a well documented fact that the majority of cases of sexual and gendered violence are grossly under- or un-reported, for fear of disbelief, reprisal, ridicule, further harassment or mere inaction by authorities… A ‘chilling clause’ such as Section 14 will only serve to inhibit or prohibit the exercise of women’s rights that the legislation itself sets out to provide. Furthermore, it creates and reinforces the stereotype that complaints of sexual harassment and violence against women are often false and/or malicious, when the reality is quite to the contrary, and the struggle for justice is an uphill task for every woman – from senior bureaucrats to daily wage labourers. Section 14 (1) must be removed.”

The other is the exclusion of domestic workers from the ambit of the Bill. We have argued that “the National Sample Survey Organisation 2004-05 accounts for over 4.7 million women domestic workers in India. But given the size of the burgeoning middle class, estimates put the numbers as at least thrice that number. How can any Bill that seeks to secure the rights of working women ignore such a large and growing constituency? We stand by the stand of the National Domestic Workers Forum i.e. domestic workers must be included in the Bill… Privacy of the home cannot be an excuse to shield crimes against women.”

Besides the above non-negotiables we are also concerned that:

The spirit behind the Supreme Court Guidelines is, unfortunately, missing in the Bill. The perspective underl yi ng the Vi shakha Gui del i nes – of the Constitutional  guarantee of equal i ty as wel l  as international instruments such as the CEDAW (Committee on the Elimination of Discrimination Against Women), to which the Government of India is a signatory – is that of operationalising domestic and international commitments to women’s rights. However, the current Bill takes a step backward by titling the Bill the “Protection” of Women against Sexual Harassment at the workplace, emphasizing their victim status rather than as equal citizens entitled to a safe workplace.  We recommend that the title of the Bill reverts to “The Sexual Harassment of Women at their Workplace (Prevention) Bill”.

1. The preventive aspect of the Supreme Court Guidelines, making it mandatory for employers to create a safe workplace has been diluted in the Bill, which focuses more on punitive aspects. We recommend that its preventive aspects be strengthened and budgetary and other commitments be made towards the same.

2. Protection against Victimisation. It is common knowledge that the complainant, supporting colleagues and witnesses often have to face negative consequences that could even escalate to termination of employment.  Yet, the Bill does not contain any provision to protect complainants and prosecution witnesses from victimization. The Bill should also explicitly state that delay in filing in a complaint will not adversely bias the proceedings, because often a woman takes some time to come to terms with her situation and decide to lodge a formal complaint.

3. Physically and mentally challenged women should be especially provided for within the Bill.

4. In many cases, perpetrators of sexual harassment at the workplace have been independent contractors, suppliers and such like who women employees have to interact with in the course of their work. Hencethe phrase “or any third party encountered in the course of work” needs to be included in the definition of the “employee’’.

5. The definition of the workplace should also be expanded to include: the house or dwelling place; modes of transportation undertaken for and in the course of work; charitable, religious institutions; establishments such as courts, legislative assemblies, Panchayats, municipal councils, etc. as well as the Houses of Parliament.

6. The Bill should ensure that sexual harassment is clearly laid down as an offence in the service rules of all government employees.

7. The current Bill also does not specify time-bound disposal of complaints or action to be taken by the management. It needs to do so. This is important because once the complaint is filed, the complainant is often faced with a hostile atmosphere and forced to compromise or drop the complaint.

8. The current Bill fails to adequately deal with situations when the employer or head of establishment is himself the perpetrator. The likelihood of a complainant being able to continue in her job is miniscule, and damages awarded must take this into account. Moreover, when the head of the establishment is the perpetrator, he cannot create a safe working environment, and endangers other women workers as well. In such a situation, the Local Complaints Committee should have the authority to proceed with much more comprehensive investigations.

9. Specific guidelines relating to the manner in which an enquiry should be conducted and the procedure for Recording of Evidence need to be laid out that include but are not limited to: Participation of the complainant; manner of examination of the witnesses; non-permissibility of evidence/examination based on aggrieved woman’s character, personal/sexual life and history, etc.

10. Composition of Internal Complaints Committee/Local Complaints Committee should embrace both a women’s rights’ perspective as well as a workers’ rights perspective. Besides the third-party representative mandated in the current Bill, we recommend that a representative of a Trade Union or Employees’ Association (where present) be included. 

11. We suggest that the section on “Conciliation” would be better reframed as “mediation”. Adequate steps must be taken to ensure that the complainant is not under threat or pressure to pursue this route. The issue may be resolved internally only upon express request of the complainant, but still the process of enquiry should be available to the victim. In case of any malafide intention towards the complainant discovered during a post-resolution enquiry, the Complaints Committee should be given the power to act suo moto to pursue the case and bring justice to the aggrieved woman.

12. Monetary penalty imposed should be reframed as ‘damages’ instead of ‘compensation’. Such a penalty must be seen and titled as ‘damages’ against mental, physical, personal and professional trauma borne by the complainant, not compensation for the above.

13. A new section also needs to be inserted to allow complainants to recover damages from the company or employer in case of loss of job or promotions.

Additionally, we have also sought:-

· A separate section be added for educational institutions

· Provision for the mechanisms in relation to sexual harassment at the workplace be placed on par with other labour laws and that Trade Unions and Employees Associations be brought on board to ensure compliance.

· A separate chapter be included to address issues relating to women in the unorganised sector who constitute about 95% of the female workforce. This should be drafted in consultation with groups with adequate experience in these areas.

· Under Section 5 i.e. Appointment of District Officer, an officer or representative of the state must be made available for every 5000 workers, to ensure that the complaints mechanism stays within the reach of women. Existing monitoring mechanisms can be used, for example, officers monitoring the provisions of the Shops and Establishments Act.

· Agencies such as the NCW and State Women Commissions and Labour Commissioners can play an important role in monitoring effective implementation at the district, state and central levels.