Misuse of sexual harassment laws in India

Raghavi Viswanath

The Indian judiciary has seen a decelerated evolution with regards to sexual harassment laws. This article seeks to highlight and analyze the various flaws in the legal apparatus to deal with sexual harassment as it exists today.

One of the most dubious provisions is Section 498-A of the Indian Penal Code. While the provision has been created to protect women from marital violence, the arbitrariness that it confers upon the police authorities as well as the women who allege domestic violence has been received with opprobrium and accused of fostering misogyny. Domestic violence under Section 498-A is a cognizable, non-bailable and non-compoundable offence. Such an arrangement lets no room for out-of-court settlements. The petitioners do not have the option of revoking the charges. Complaints filed under this Section also warrant immediate arrests of the husband and the family members where necessary. A necessary implication of the non-bailable nature of the offence is the bleak possibility of the marital relationship being restored. The impact of these consequences is manifold because the charges are irrevocable. Statistics show that in the period of 2011-2012, there was a 9.4% increase in the number of cases registered under Section 498A ((SauravDatta, What Powers the “Section 498-A misuse” bandwagon?, 5 July, 2014, available at http://www.dnaindia.com/india/standpoint-what-powers-the-section-498a-misuse-bandwagon-1999791, accessed on 24th January,2015)). However, its counter-narrative lies in the fact that the conviction rate is a miserly figure of 15% ((ibid)).

Suggestions have been made to amend the provision that has oft-been termed diabolic. The Malimath Committee on Criminal reforms (2003) suggested that the offence under Section 498-A be made compoundable and bailable. This view was reiterated in the 243rd Law Commission Report. Justice CK Prasad in his judgment in the case of Arnesh Kumar v State of Bihar ((SLP (CRL.) No.9127 of 2013))also highlighted the pressing need to balance the interests of the woman as well the stability of the family.

Another legal breakthrough is the Sexual Harassment of Women at Workplace Act, 2013 that was enacted after more than a decade of deliberation and re-examination. The landmark judgment of the Court in the Vishakha case was accompanied by a set of guidelines, in lieu of India’s international and constitutional commitments( such as the Convention on Elimination of All forms of Discrimination Against  Women and the right to safe work environment and right to freely practice one’s profession enshrined in Articles 19(1)(g), 15(3), 21 and 14).The Act , in the backdrop of the Court’s decision in the MedhaKotwal case and the Vishakha case, laid down a framework for investigation of complaints of sexual harassment . The mandatory nature of the Act can be attributed to the prescribed punishment for non-compliance. It not only protected the female employees, but any woman, whether employee or not, who was sexually assaulted within the premises of workplace as defined in Section 2(o) of the Act.

The Act has been touted to be the torchbearer of feminist legislation for several reasons, Firstly, the Act is not gender neutral and men are barred from filing similar complaints. The employer is also held liable for sexual harassment in places like taxis, hotels and also the offices of clients, where the employer hardly has any authority or control ((Available at http://www.avoiceformen.com/feminism/feminist-governance-feminism/indias-new-sexual-harassment-at-workplace-law/, accessed on 24th January,2015)). The investigation Committees such as the Internal Complaints Committee and the Local Complaints Committee have powers equivalent to a civil Court as enumerated in Section11.  However, the members of such Committees need not have any legal backing. The ambiguity of such criteria is heightened in the case of the Local Complaints Committee where the Presiding Officer should be ‘committed to the cause of women’( used in Section 4 and Section 7 of the Act), a subjective standard that can be neither justified nor disproved. Moreover, the inclusion of such a criterion suggests pre-conceived gender biases and this violates the general standards of impartiality.

The Act does not fall within the domain of the Right to Information Act. Therefore, details of false complaints or fabricated cases will not be available. As per Section 15 of the Act, action will be taken for false complaints. However, if the complaint is not substantiated, then the woman will be provided complete immunity. Furthermore, the identity of the woman will be kept confidential even in cases of false complaints. The compensation prescribed under the Act eschews the principle of equality before the law as it is awarded progressively, proportionate to the income earned by the respondent.

The draconian character of the legislation has drawn the attention of several authorities. The Central Administrative Tribunal, in a bench comprising of Judges KB Suresh and PK Pradhan, adjudicating upon cases of sexual harassment at the workplace, characterized Section 4 and 7 of the Act as ‘unconstitutional’ ((Krishnaprasad, CAT finds illegality in law against sexual harassment at workplace, The Hindu, 13 July, 2014, available at http://www.thehindu.com/news/national/karnataka/cat-finds-illegality-in-law-against-sexual-harassment-at-workplace/article6204747.ece, accessed on 24th January, 2015)). The Bench held that the legislation was ‘double-edged’ and the Vishakha Committees found sufficient leeway for manipulation. The fear of punishment compelled even the higher echelons of authorities to dismiss their employees even before adjudicating the merits of the complaint.

On the flipside, the existing framework has been misused to impede justice to the female victims in most situations. Marital rape, in India, continues to be a standing example of such travesty of justice. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed ((Priyanka Rath,  Marital Rape and the Indian legal scenario, India Law Journal, Available at http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html, accessed on 24th January, 2015)).

With the case of R v R (([1994] 4 All ER 481 [HL])), the English Courts widened the ambit of sexual harassment by recognizing marital rape. This judgment negated the oft-believed concept that marriage leads to natural implication of consent of the wife to sexual intercourse.  However, marital rape still eludes the Indian legal framework.  The root cause of this problem lies in the archaic construction of the statutory provisions pertaining to rape, namely Section 375 and Section 376 of the Indian Penal Code, both of which explicitly exclude sexual assault on the wife. The law further discriminates between marital bonds and prescribes punishment for marital rape only if the wife is under 16 years if age beyond which she has no remedy. Furthermore, since according to Section 122 of the Evidence Act, the communication between a husband and a wife cannot be treated as evidence unless for a persecuted offence, law does not allow any evidence for corroboration of marital rape.

While the 172nd Law Commission report did suggest changes to broaden the scope for justice by deleting Section 376 A, the victim suffers a ‘second rape’ in the hands of the law itself. The procedural laws are also used against the interests of the victim to stifle her. One of these defenses is Section 155(4) of the Evidence Act under which the victim can be questioned about her past. The element of physical evidence to prove lack of consent has deterred several victims, especially in the lower Courts. As India matures as a democracy, it is imperative not only for laws to be enacted, but adequate safeguards to prevent their abuse so that the best interests of the victim are promoted.

Government to check if airlines have got sexual harassment panel

Adyasree Prakriti Sivakumar

Vishaka v. State of Rajasthan saw India open its eyes towards safety and security of working women. The guidelines laid down in this case brought a major revolution in the area of “Sexual harassment of women in work places”. It brought happiness in lips and safety in hearts of working women.

In a recent case, these guidelines were challenged in the court of law for the Civil Aviation sector. A suit was filed by an Indian employee employed in Sri Lankan Airlines who challenged the guidelines. She questioned the Civil Aviation Ministry and Women and Child Development Ministry, Delhi government, the airline and its officials for failing to prevent her from harassment, which was released by the press on November 23, 2014. Adding on, the main defaulter, Sri Lankan Airlines, has been questioned not only by its own employee but also by the High court of Delhi as to why it had not set up regular internal complaints committees, as per the guidelines, at its seven offices in India to look into instances of sexual harassment.

Justice Hima Kohli asked the Centre and Delhi government to verify if airlines operating from the capital, international and domestic have a sexual harassment committee as per the landmark Supreme Court guidelines. To quote the court, “What steps have you (Centre, Delhi government and airlines) taken for the implementation of Vishaka guidelines in all Airlines or at every workplace? You should have done it by now. You should ensure Vishaka guidelines are functional in every other organization.”

We are living in an era where we want “equality” in everything, “no discrimination” in all aspects. If so is the case then why is it that when it comes to the safety and security of women there is “inequality” and “discrimination”? The words said by our Prime Minister on Independence Day this year, would be the best way to conclude, “Question not your daughters where they are going but tell your sons to behave.”

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – An Analysis

Vishnu S Warrier

Sexual harassment is an act that creates a hostile working environment which may be by way of cracking lewd jokes, verbal or physical abuse, circulating lewd rumors etc. Though, India had signed and ratified Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) way back in 1993, we did not have a specific legislation to address the issue of sexual harassment at Workplace. Till 1997, facing victim of sexual harassment at the workplace had to lodge a complaint under Section 354 ((Criminal assault of women to outrage women’s modesty))and 509 ((Assault or criminal force to woman with intent to outrage her modesty))of the Indian Penal Code 1860. However, scenario changed when Supreme Court stipulated the famous Vishaka Guidelines though its landmark judgment in Vishaka and others v State of Rajasthan ((Word, gesture or act intended to insult the modesty of a woman)).

Further, Court observed that, the consideration of “CEDAW and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.” Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers. Accordingly, Government of India passed the Sexual Harrassment of Women at Workplace (Prevention, prohibition & Redressal) Act ((Hereinafter the Act)), 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 therewith or incidental thereto, and the same has been made effective on December 9, 2013 ((Gazette Notification dated December 9, 2013)).

The Act will ensure that women are protected against sexual harassment at all the Workplaces, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth ((Press Information Bureau, Government of India (Dated November 4, 2010). Protection of Women against Sexual Harassment at Workplace Bill, 2010, last accessed on December 12, 2013.)).

Key Features of the Act

Sexual harassment at Workplace

The Act defines sexual harassment to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature ((Section 2 (n).)). It may further include any promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems ((Section 3 (2).)).

Workplace, Employer, Employee

Workplace is defined to include all organizations, and any other places visited by an employee during the course of work ((Section 2 (o).))and it covers every woman at the work place whether employed or not ((Section 2 (f).)). Further, the Act defines employer as the person responsible for the management, supervision and control of the work place ((Section 2 (g).)).

Internal Complaints Committee & Other Local Committees

The Act insists upon the formation of an Internal Complaints Committee in every workplace, as per the provisions of Section 4. It further provides that, where the offices or administrative units of the workplace are located in various places, Internal Complaints Committee shall be constituted in all such units.

The Act also empowers the District Officer to constitute Local Compliant Committees in every district. And such Local Committee shall include an eminent woman who is working in the area of Social Work and committed towards the cause of women, as the Chairperson, and two members from an NGO committed to the cause of women ((Section 7)).

Duties of Employer

Chapter VI of the Act entrusts certain duties upon the employer ((Section 19)). Under which, every employer has to;

  1. Provide a safe working environment at workplace;
  2. Constitute an Internal Complaints Committee and conspicuously display the order constituting the Committee;
  3. Organize workshops and other training programmes at regular intervals for sensitizing employees;
  4. Provide assistance during any inquiry;
  5. Initiate actions against the perpetrator; and
  6. Provide assistance to the women if, she prefers to file complaint under the provisions of Indian Penal Code.

Redressal mechanisms – Complaint filing & Inquiry initiating

Chapter IV of the Act prescribes the procedures to be followed in filing complaint. Under the provisions of this Act, aggrieved women shall make a complaint in writing to the Internal Complaint Committee within three months of the last incident. In case the women is not in a position to file complaint due to her physical or mental incapacity, death or otherwise, her legal heir shall file the complaint ((Section 9)). In the absence of Internal Complaint Committee, complaint shall be filed with the Local Committee ((Id.)).

The Committee is required to complete the inquiry within a time period of three months. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be. They are mandated to take action on the report within two months. On request from the complainant, the committee shall provide for conciliation ((Section 10)). Complainant may also seek other remedies, including initiating criminal proceedings under the provisions of any other laws in existence.

Penalty & Appeal

The Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act, in case the allegations are proved. Besides, the Committee may provide for monetary compensation to the complainant. Further, whoever contravenes the provisions of Section 16 ((Prohibition of Publication or making known contents of complaint and inquiry proceedings)), shall be punished with a fine of Rs. 5000/- ((Section 17)). Any person aggrieved by the recommendations of the Committee, shall appeal within 90 days of the recommendations. All such appeal shall be preferred to a Court/Tribunal ((Section 18)).

Analysis & Major Issues

  1. Act insists upon the employer to constitute an Internal Complaints Committee at every unit. Practically, it may be impossible for big employers.
  2. Definition of employee is in its wider sense. Hence, it could be interpreted that, even a “domestic worker” who is working at home shall come under the protection of this Act.
  3. Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country needs to have one such person in the Committee. There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available ((PRS Legislative Brief, The Protection of Women against Sexual Harassment at Work Place Bill, 2010 available at http://www.prsindia.org/uploads/media/Sexual%20Harassment/Legislative%20Brief%20-%20Sexual%20Harassment%20-%2020May11.pdf last accessed on December 12, 2013.)).
  4. Act doesn’t provide the maximum number of members which shall form part of the Committee.
  5. The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. however, the composition of the Internal Committee does not require any member to have a legal background. Moreover, the Act does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge ((Id.)).
  6. Act provides that every District Officer shall constitute a Local Complaints Committee in the district. However, jurisdiction and functions of these committees have not been detailed. It is also unclear whether the block or taluk level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases only.
  7. Act provides that in case a committee is of the opinion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. However, the provision also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant. Though there may be merit in providing safeguards against malicious complaints, this provision penalises every false complaints, which may not be malicious. This could deter women from filing complaints.

*** This article was initially published at eMagazine of ICSI Mysore Chapter (Edition 121, February 2014)