THE SEXUAL HARASSMENT OF WOMEN AT WORK PLACE ACT 2013-A DEAD LETTER?

This article was written Muna Basheer a student of National University of Advanced Legal Studies, Kochi

Introduction

The corporate ladder has always been an epistle of women empowerment in any country. As India leapt to the 21^st Century, it had about 5.5 million women working in the corporate sector alone, [1]the jobs ranging from junior posts to HR Managers and even CEOs. Even though the number of women entering the sector is increasing, the number of problems she has to face is also on an increase. Unsafe roads and inflexible work timings are the best examples. Added to these is the corporate veil that prevents women from reaching the top posts of the organization. Perhaps the most grievous of all would be the menace of sexual harassment. Without adequate awareness and stringent punishment, it would not be possible to strike down the menace of sexual harassment at workplace. With this object in view, the Government passed the Sexual Harassment of Women at Workplace Act 2013. However, with all the hullabaloo, did the Act really serve its purpose? Or did it also turn out to be like any other piece of legislation-a dead letter?

The Background: The Sexual Harassment of Women at Work Place Act 2013 is a statutory extension of the Vishakha Guidelines that was pronounced by the Honourable Supreme Court in the Vishakha v State of Rajasthan Case in 1997. The victim Bhanwari Devi who was a social worker at a rural development program initiated by the State Government of Rajasthan tried to prevent a child marriage from being conducted at one of the Thakurs’ house. Even though the marriage took place, she was continuously tortured and raped even in front of her husband. Bhanwari Devi did not lose her spirit even when the trial court acquitted the accused. She went even to the Supreme Court to get justice and the Supreme Court took this issue in such a way that has resulted in the Vishakha Guidelines.

The Internal Complaints Committee: The Sexual Harassment of Women at Work Place Act 2013 stipulates that there has to be an internal complaints committee where the number of employees is more than 10 and then goes on to provide that the chair of this committee should be a woman and the female members of the committee should be half the total members. The Internal Complaints Committee which has been exhaustively used in the Act as a mechanism to curb the menace of sexual harassment is the King pin of the Act. It has been provided with adequate powers of the Civil Court to demand attendance of witnesses, seizure of evidence among others. Apparently, this Committee which appears to be so powerful if was constituted in every establishment would have solved atleast half of the problems.

The fact is that in most of the powerful establishments, there are no Internal Complaints Committee and even if constituted, apart from being merely a per se committee, it does not serve its purpose. This is to say that most of the internal complaints committee members are there merely because they have been put so and does not take the necessary steps if any complaint has arisen. And what kind of solution can one expect if her job prosperity is one that is threatened for. In May 2015, the Government had made it mandatory for private companies to inform about the constitution of the Internal Complaints Committee and the number of cases registered. However, the success of this formula was reflected when the Minister had replied in the Lok Sabha that only 57 cases were reported in the year 2014 on this account.

Another issue related to the act is the way it has been worded. Even our Constitution is known as the ‘lawyer’s paradise’ because of the way it has been used by lawyers to interpret it to their advantage. When an Act passed by the Legislature defines sexual harassment, the general public expects it to be not something left to be interpreted in any way. The broad categories of what is meant to be ‘sexual harassment’ in the Act is unfortunately, the same definition used by the Supreme Court in the Vishakha Guidelines 16 years back. Despite the technological advancement, the revolution in the LGBT rights and Section 377, the Act, thus fails to be gender neutral.

True, this Act was passed as a result of the furor over the Delhi Gang Rape and this was in haste. But this cannot be any explanation over the lack of awareness among the female employees about such issues. It is true that most of them fear for professional victimization [2]among others. Added to this is the grievance mechanism provided by this Act in which the first solution that a victim gets is conciliation. The Act does not make note of what this conciliation would be and only excludes monetary settlement. If rightly said, this conciliation can mean many things including a transfer of the victim!!!

Armed Forces are another field wherein incidences of sexual harassment are greatly reported. The domination of men and the male laired authority make it next to impossible for women army officers to address these issues. In that case, if the Act also excludes the Armed Forces from its purview, then it would be difficult for women officers to seek justice.

Conclusion

It is sad that most of the apparent instances of sexual harassment are being dubbed as ‘inappropriate behavior’ or an ‘untoward incident’ or an internal matter’ and thus is excluded form liability. It is true that no legislation can be loop hole free or completely inclusive. But there should be a consensus and public unanimity in legislations which deal with these kinds of sensitive issues. Haste should never be an excuse for drafting statutes which can remain only in dead letter or if at all used, only results in the detriment.

[1] Mamtha Jha, Status of Women Workforce in Corporate Sector With Reference To Glass Ceiling and Income Disparity, 17 IOSR JOURNAL OF BUSINESS AND MANAGEMENT (IOSR-JBM) 25,27 (2015)

[2] PROTECTING WOMEN AT WORK PLACES available at http://www.thehindu.com/opinion/oped/protting-women-at-workplaces/article5483861.ece (last visited October 11, 2015).