December 11, 2014 Leave a comment
Sexual harassment at the workplace, which India’s criminal laws often group with street harassment, is nevertheless a distinct category of gender violence. It is defined by its occurrence in a ‘workplace’, or any physical or virtual space where individuals are employed to work, either formally or informally, with or without remuneration. Under the newly passed Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the ‘workplace’ can include any public or private sector organisation; a ‘dwelling place or house’ where individuals may be employed as domestic workers; the unorganised sector; or any place that an employee may visit as part of her job, including the transportation that her employer may provide for this purpose.
Workplace sexual harassment, as defined by the new law, refers to any unwelcome sexual behaviour, either directly or by implication, and includes physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. The law also address sexual harassment that creates a hostile work environment, interferes with the victim’s work, affects her health or safety, or is accompanied by any implicit or explicit preferential or detrimental treatment or threats to alter her employment status. Moreover, except in the case of domestic workers, a woman who files a complaint of workplace harassment does not have to be employed at the workplace where the offence has occurred. Thus, even a customer at a store or a client at a company can make a complaint of workplace harassment.
Know the law
The last year has been a landmark year for gender violence legislation in India; in April 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into force, legally obligating employers to address workplace harassment. This law is based on the Vishaka Guidelines, which were formulated by the Supreme Court in 1997 in response to the landmark case of Vishaka and others v. State of Rajasthan and others.
The new law draws on the principles of equality and the right to life enshrined in the Indian Constitution, as well as on the right to a safe working environment while practising any profession, occupation, trade or business. In emphasising the right to work with dignity, without having to face sexual harassment, it also draws from international treaties such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which India ratified in 1993.
Under the new law, employers are expected to handle complaints of workplace harassment by setting up an Internal Complaints Committee, which should be led by a senior female employee. Moreover, every district is expected to have a Local Complaints Committee to handle complaints from establishments with fewer than 10 employees, which may not have the human resources to constitute a fair and unbiased committee. This law imbues Complaints Committees with the powers of a civil court. If the committee finds the alleged harasser to be guilty, then it can make a recommendation to the employer (or the District Officer) to take action against that person, and can also recommend that the harasser monetarily compensate the victim. The Committee must complete its inquiry within 90 days, and the employer or District Officer must act upon the recommendations of the Committee within 60 days of receiving them.
Employers are also expected to provide a safe working environment for all employees, to prominently display signs and notices detailing the consequences of workplace harassment, to organise workshops for employees on the new law, and to assist the complainant if she chooses to file a criminal case against her alleged harasser. All Complaints Committees must also submit annual reports to the government. If an organisation fails to form a properly functioning Committee, it can be fined up to Rs. 50,000; if, after being fined, it has still not complied with its duties under this law, it could face the cancellation of its license or registration.
The new law has attracted criticism for a number of reasons: the most troubling is the inclusion of a provision that encourages ‘conciliation’ before launching an inquiry. Thus, the Committee’s first task when handling a complaint of workplace harassment may be to attempt some kind of settlement between the complainant and the alleged perpetrator, and a full inquiry will only be conducted if this is not successful.
Moreover, the new law includes a safeguard against ‘false’ complaints, giving the Complaints Committee the authority to recommend action against a woman making a malicious complaint. While it also states that the absence of proof alone is not enough reason to suspect a false complaint, and that the malicious intent of the complainant must be proved before action is taken against her, this condition may nevertheless deter victims from coming forward to report workplace harassment.
In terms of criminal law, as with street sexual harassment, the newly-introduced Section 354A of the Indian Penal Code (under the Criminal Law (Amendment) Act, 2013) can be used in cases of workplace sexual harassment, with ‘physical contact and advances involving unwelcome and explicit sexual overtures’, ‘a demand or request for sexual favours’ and ‘showing pornography against the will of a woman’ being punishable with imprisonment up to three years, or a fine, or both; and ‘making sexually coloured remarks’ being punishable with imprisonment for up to one year, or a fine, or both.
In addition, assault or criminal force intended to ‘outrage [a woman’s] modesty’, under Section 354, is punishable with imprisonment of at least one year and up to five years, in addition to a fine; offences under Section 509, including any ‘word, gesture or act intended to insult the modesty of any woman’, can be punished with imprisonment up to three years, in addition to a fine.
There is no reliable data available as yet on the number of cases that are reported to Internal and Local Complaints Committees under the new workplace harassment law. The National Crimes Record Bureau (NCRB) has recorded the number of cases filed under Section 354 (‘assault on women with intent to outrage her modesty’, referred to in pre-2012 reports as ‘molestation’) and Section 509 (‘’insult to the modesty of women’ through words, gestures or acts, referred to in pre-2012 reports as ‘sexual harassment’). Both these sections extend beyond workplace sexual harassment to include other forms of gender violence as well, such as street harassment. Table 1, as well as Figures 1 and 2, summarize the past six years of NCRB data. These figures are also included in Prajnya’s report on street sexual harassment.
Table 1: Sexual Harassment and Assault Cases Filed, NCRB
|Section 354 cases filed||40413||38711||40613||38711||42968||70739|
|Section 509 cases filed||12214||11009||9961||11009||8570||12589|
According to an opinion poll conducted by Oxfam India and the Social and Rural Research Institute, titled ‘Sexual Harassment at Workplaces in India 2011-2012’, 17% of working women in India say they have experienced workplace sexual harassment. The survey covered 400 women in Delhi, Mumbai, Bangalore, Chennai, Kolkata, Ahmedabad, Lucknow and Durgapur, across both the formal and the informal sectors. Of these, 66 respondents (17%) reported that they had faced a total of 121 incidents of workplace harassment. Of these, 102 incidents were non-physical, while the remaining 19 were cases of physical harassment.
The survey was conducted prior to the passage of the new law requiring the establishment of Complaints Committees. It found that the majority of these victims did not take any formal action against their harassers, due to fear of losing their jobs, the absence of a formal complaints mechanism at their workplace, fear of stigmatization, and lack of awareness of their legal rights. The survey also found that the women most vulnerable to workplace harassment were those working as labourers (29%), followed by domestic workers (23%) and those working in small scale manufacturing (16%).
- Statesman Case
In a case going back to 2002, Rina Mukherji, a reporter at Kolkata-based newspaper The Statesman, fought to be reinstated after she was fired for alleging that the paper’s news coordinator, Ishan Joshi, had sexually harassed her. In February 2013, eleven years after the incident was reported, the Industrial Tribunal awarded her full back wages from the time of her termination, as well as reinstatement to her original position.
- Prasar Bharati Case
In another case, two All India Radio (AIR) employees were fired and one suspended by public broadcaster Prasar Bharati in April 2013, following complaints of workplace harassment from over 25 radio jockeys (RJs). The complainants alleged that the harassment had been going on for two years, and Prasar Bharati initiated an internal inquiry into the matter.
As of February 2014, in response to incidents of senior officials harassing junior female employees of the organization, Prasar Bharati has prepared a draft memorandum of understanding with the National Commission of Women. The memorandum proposes a joint action that will engage the organization’s women’s panel to train staff in acceptable behaviour, help staff distinguish between acceptable and non-acceptable behaviour and explain what sexual harassment constitutes to its 34,000-member workforce. If sealed, this will reportedly be the first attempt by a government body to sensitize its employees to sexual harassment at the workplace.
- Sun TV Case
In March 2013, a newsreader at Sun TV in Chennai alleged that news editor V. Raja had maliciously assigned her to the early morning news slot, saying that he would only change her shift if she gave in to his sexual advances, and threatening to fire her if she tried to take action against him. She also said that Raja had tried to speak to her and text her late in the night, and that Raja’s aide, Vetrivendan, had also made advances towards her, offering her a pay raise in return. In the absence of a separate criminal law on workplace harassment, charges against Raja were filed under the Tamil Nadu Prohibition of Harassment of Women Act, which had been passed in response to the street harassment-related death of college student Sarika Shah in 1998. In March 2013, V. Raja was arrested, granted bail and reportedly permitted to return to work in spite of the police complaint against him. The complainant was reportedly suspended from work the very next day. However, according to the Network of Women in Media, India, a professional network of women journalists and media persons in the country, the complainant’s ordeal did not end here; she allegedly received death threats and could not find employment for several months as media houses shunned her.
In December 2013, the complainant was finally given a job at Polimer TV, a Tamil news channel, and on July 1st, 2014, a metropolitan court issued a non-bailable arrest warrant to V. Raja. The case continues to be sub-judice.
 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, http://wcd.nic.in/wcdact/womenactsex.pdf, accessed 26th October 2013. Section 2(o) defines the ‘workplace’.
 See above note 1. Section 2(n) defines ‘sexual harassment’.
 See above note 1. Section 3(2).
 See above note 1. Section 2(f).
 Vishaka and others v. State of Rajasthan and others (JT 1997(7) SC 384). This case involved the gang-rape of Bhanwari Devi, a government-employed social worker who had attempted to prevent a mass child marriage in her village in Rajasthan, and was subsequently attacked by five men seeking revenge for her actions.
 See above note 1. Section 4(2)(a).
 See above note 1. Section 6-7.
 See above note 1. Section 11(3). There are some exceptions: for instance, in the case of domestic workers, the Local Complaints Committee can forward the complaint to the police, to be registered under Section 509 of the Indian Penal Code.
 See above note 1. Section 13(4).
 See above note 1. Section19.
 See above note 1. Section 21 outlines the reporting duties of Complaints Committiees; Section 26 lays out penalties for noncomplying employers.
 Vasant, K., ‘New Workplace Sexual Harassment Law “Already Out Of Date”’, India Real Time Wall Street Journal, 29th April 2013, http://blogs.wsj.com/indiarealtime/2013/04/29/new-workplace-sexual-harassment-law-already-out-of-date/, accessed 2nd September 2014. See also Sexual Harassment of Women at Workplace Act, 2013; Section 10 of the Act recommends conciliation ‘before initiating an inquiry’ (see above note 1).
 See above note 1. Section 14(1-2).
 Criminal Law (Amendment) Act, 2013, Ch. 2(7), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014. Section 7 of the Act inserts Section 354A into the Indian Penal Code. Section 354A(1)(i-ii) lists the offences, and Section 354A(2) lays out sentencing rules.
 See above note 14. Section 354A(I)(iv) lists the offence, and Section 354A(3) lays out sentencing rules.
 Perappadan, B.S., ‘Sexual harassment at work place high’, The Hindu, 29th November 2012, http://www.thehindu.com/todays-paper/tp-national/sexual-harassment-at-work-place-high/article4144874.ece, accessed 2nd September 2014.
 See above note 24.
 Navya P. K., ‘Industrial Tribunal verdict raises hope’, India Together, 5th April 2013, http://indiatogether.org/harassmen-women, accessed 26th October 2014. See also Mukherji, R., ‘The Cost of Justice’, posted on Kracktivist, 13th February 2014, http://kractivist.wordpress.com/, accessed 26th October 2014. In this blog post, Rina Mukherji details the case and 2013 judgment, her difficulties with obtaining legal and law enforcement assistance, and the adverse consequences of a protracted legal battle.
 Dhawan, H., ‘Two All India Radio officials sacked for sexually harassing radio jockeys’, The Times of India, 17th April 2014, http://timesofindia.indiatimes.com/india/Two-All-India-Radio-officials-sacked-for-sexually-harassing-radio-jockeys/articleshow/19586698.cms, accessed 27th October 2014.
 Sengupta, A., ‘Prasar puts best foot forward’, Telegraph India, 5th February, 2014, http://www.telegraphindia.com/1140206/jsp/nation/story_17905681.jsp#.VAWzOMWSxVM, accessed 2nd September 2014.
 Correspondent, ‘For months no one was ready to employ me says anchor who filed a case of sexual harassment on Sun TV Chief Editor”, The News Minute, 1st July 2014, http://www.thenewsminute.com/side_headlines/15, accessed 2nd September 2014.
 ‘NWMI’s statement, March 28, 2013’, Network of Women in Media, India, http://www.nwmindia.org/about-us/statements/61-nwmi-statements-on-sexual-harassment-at-sun-tv-2013, accessed 27th October 2014.
 See above note 29.
This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.