Sexual harassment results in violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution and her right to life and to live with dignity under Article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment. Protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as the convention on the elimination of all forms of discrimination against women, ratified on June 25, 1993 by India.
The corporate history is not immune to such harassment. In 2001, Phaneesh Murthy (then director, Infosys) was accused of sexual harassment by his executive secretary – Reka Maximovitch. Infosys subsequently settled the lawsuit off court for $3 million and fired him. In 2013, Tarun Tejpal, a senior journalist and editor-in-chief of Tehelka was accused and charged, for rape of a young staff member during “Think Fest” – their annual conclave. Ex-Uber engineer Susan Fowler had alleged her boss of sexual harassment. The identity of the accused is not clear, but Uber has been facing flak in the way the case was handled. Three women have accused former Teri chief PK Pachauri of sexual harassment. Police filed a FIR in 2015, with allegations of sexual harassment, stalking and criminal intimidation. A former senior executive filed an FIR against ScoopWhoopCo founder Suparn Pandey accusing him of sexually harassing her during the 2 years she worked for the website. These are just a few major cases that came into the spotlight on sexual harassment in the corporate world. The media and subsequently the public have castigated several other organisations like Wipro, Uber and TVF.
The prevention of sexual harassment (PoSH) law is to prevent and to provide protection against sexual harassment of women at workplace as well as redressal of complaints of sexual harassment. The requirement to give legislative sanctity to the Vishakha Guidelines, set up by the Supreme Court, as well as the need to provide a more comprehensive and robust framework around the burning issue of sexual harassment at workplace, led to Parliament enacting the PoSH law. The law covers any/every place visited by the employee during the course of employment including transportation provided by the employer. Even non-traditional workplaces, like telecommuting, virtual spaces, etc are covered under the law.
India’s first comprehensive legislation specifically addressing the issue of sexual harassment at work – the PoSH law was formulated with the core objective of protecting employees against sexual harassment and promising a safe, secure and dignified working environment for them. As per the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 “sexual harassment” includes unwelcome sexual behaviour, whether directly or by implication. Sexual harassment includes physical contact and advances, demand/request for sexual favours, making sexually coloured remarks, showing pornography, unwelcome physical, verbal or non-verbal conduct of a sexual nature. Workplace includes office premises, canteen facility, guesthouses provided by the organisation, seminars, client or vendor offices, transportation facility provided by employers. The aggrieved woman can either by an employee, student, a person visiting the workplace, temporary wager, domestic worker, subcontract employee, etc.
The law provides that every employer having more than 10 employees must constitute an internal complaints committee (ICC) within the organisation to handle complaints of the sexual harassment. ICC must include a presiding officer appointed from senior management and must be a woman. There should also be one external member from amongst non-governmental organisations or a lawyer. In additional there must be at least two members representing the employees of the organisation. It is also essential that at least one-half of the total members so nominated shall be women. All complaints shall be made to this body, which must resolve every issue impartially. The employer should frequently sensitise employees through training sessions. Irrespective of the intention of the accused or the level of impact – every incident has to be taken seriously and probed by ICC. Even a single instance of forward of an indecent joke or picture on social media platforms can trigger a complaint.
ICC before initiating an inquiry under section 11 and at the request of the aggrieved woman takes steps to settle the matter between her and the respondent through conciliation. But it should be noted that no monetary settlement should be made as a basis of conciliation. ICC shall where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed. As per section 509 of IPC, the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent. For the purpose of making an inquiry ICC shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit. This inquiry shall be completed within 90 days. The law also establishes certain process and procedure based on which the inquiry should be conducted.
With the recent tide of #Metoo everywhere all complaints should be seriously taken up. Simultaneously, if ICC arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false, it may recommend the employer to take action against the woman. However, it should be kept in mind that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section.
A survey conducted revealed that 38 per cent of the women/girls had faced sexual harassment at the workplace. Around 70 per cent of these aggrieved women refrained from making a complaint due to fear, embarrassment and lack of confidence. Around 42 per cent of these aggrieved women felt that they are not feeling protected at workplace. The law provides various duties of the employer, including providing safe working environment at the workplace, display at any conspicuous place in the workplace the penal consequences of sexual harassments, organise workshops and awareness programme at regular intervals for sensitising employees with the provisions of the Act and orientation programmes for members of ICC. The law also provides that the employer should provide necessary facilities to ICC for dealing with the complaint and conducting an inquiry, treat sexual harassment as misconduct under the service rules and initiate action for such misconduct. Employer should also monitor the timely submission of reports by ICC and provide assistance to the woman for initiating action under IPC if she desires to do so. The penalty for the employer if he fails to comply under the law includes fine, which may extend to Rs 50,000.
(The writer is the global head of legal and chief data protection officer in a major IT company and is actively involved in many pro bono activities through Chennai Lawyers)