Justice Verma’s report covers sexual harassment at the workplace. While in September Lok Sabha cleared the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012, it is pending with the Rajya Sabha. The Supreme Court ruling of the Vishakha case in 1998 hasn’t improved the condition of women in the workplace. It looks like things are finally changing for the better with Justice Verma’s report as he covers some critical issues about the topic. Here is a brief overview of the issues Indian working women face and the relevant aspects of the act. The Indian organizations will now have to address these human resource risks properly.
The Indian Constitution grants equal rights to women. It states that women have the fundamental rights to life with human dignity, to equality, and to work in ones chosen profession or trade inherently include protection from sexual harassment. Article 42 emphasis that – “The State shall make provision for securing just and humane conditions of work and for maternity relief”. The Constitution guarantees certain fundamental freedom to women as it considers that as a bedrock for democracy. However, Indian society even after over 60 years of independence considers women a subservient gender. Sexual harassment is rampant in society including the workplace.
Finally, the 2012 Sexual Harassment Act will provide some protection to women. According to the act, sexual harassment constitutes of the following unwelcome acts or behavior (whether directly or by implication) namely:
(i) physical contact and advances; or
(ii) a demand or request for sexual favors; or
(iii) making sexually colored remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Further on, the act states that the following circumstances, along other circumstances, if they occur or are in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:-
(i) implied or explicit promise of preferential treatment in her employment.
(ii) implied or explicit threat of detrimental treatment in her employment
(iii) implied or explicit threat about her present or future employment
(iv) interferes with her work or creating an intimidating or offensive work environment for her; or
(v) humiliating treatment likely to affect her health or safety
2. Formation of Employment Tribunal
The act mentions formation of Internal Complaints Committee by the organization and a Local Complaints Committee at district or local level. The logic is that the employee should first address the complaint internally and if the employer is involved then the aggrieved women should approach the Local Complaints Committee. However, as we have seen in the ten years after the Vishaka case, these are not effective when senior managers are involved in sexual harassment. The woman generally loses her job if she files a complaint as the Internal Committee driven by Human Resource department supports the senior management.
Justice Verma report suggests formation of Employment Tribunal. He suggests that Internal Complaints Committee and Local Complaints Committee are not required as this process dissuades the women from complaining. I completely agree with Justice Verma. The senior managers will have lessor influence on external parties.
3. Punishment on Filing False Complaint
The act states that if the Internal Committee or Local Committee determines that the allegation made by the woman was malicious or false, the woman can be punished for filing a false complaint
Justice Verma’s report recommends that a woman should not be punished for filing a false complaint.
Though, overall I am against the view of filing false cases and consider that these should be punishable. However, in case of sexual harassment, my view is that the women should not be punished. In all probability, there will be a few false cases filed by some crooked women. But in India due to society’s attitude, very few women have the courage to fight sexual harassment publicly Secondly, if they file a case against senior managers, with the corruption level existing in the country, most cases can be made into false complaints. Hence, in these cases women should not be penalized if the case is proven false.
4. Time Period for Filing Complaint
The act states that a woman should file the sexual harassment complaint within three months of the incident or the last incident.
Justice Verma states that there should be no time limit for filing the complaint.
I agree with Justice Verma’s suggestion. Indian women are geared to think that humiliating and sexually harassing behavior is acceptable. The kind of thinking is “men will be men”. Very few women have the courage to point blankly tell a man that sexually harassing behavior is unacceptable in civilized society. Hence, women generally file a complaint after repeated harassment. Problem further is intensified for married women, since the husbands tend to blame the wife for inappropriate behavior There is a high-level social stigma attached to it, and sometimes marriage breaks up. Lastly, sexual harassers threaten a woman by spreading rumors and doing various acts to ruin her reputation. Hence, in Indian context there should not be a time limit for filing the complaint.
5. Transfer of the Complainant
The act specifies that the Internal Committee or the Local Committee can transfer the aggrieved woman or grant leave to her.
Justice Verma’s report states that this should be done with the consent of the woman.
I agree with the logic of Justice Verma. Sometimes if a woman files a case in one city, she will be transferred to a remote place from where travelling expense will be significant or unaffordable. Hence, the woman will be unable to fight her case.
Moreover, sometimes she is forced to take leave and then rumours are spread. When she comes back, her job is given to another person. After waiting for a couple of months in the hostile climate, she automatically quits. Hence, in all these cases a woman’s consent should be mandatory before any action is taken
The act states that the Internal Committee or the Local Committee at request of the aggrieved woman takes steps to settle the matter between her and the respondent through conciliation. The settlement so arrived should be recorded.
Justice Verma contends that conciliation is against the dignity of the woman and adds further to the humiliation. Hence, the section should be deleted.
In my view, the act states that conciliation process should start at the request of the woman. Hence, it is her practical choice and she should be allowed that. In Indian society, a woman may not have the means to continue a case for long and her reputation is perpetually at risk.
However, the act should specify the level and magnitude up to which conciliation should be attempted. If a woman is being threatened or the case is serious, she should be advised against conciliation and provided adequate protection from retaliation.
7. Compensation and Employer Liability
The act states that an appropriate amount should be deducted from the salary and wages of the respondent and paid to the aggrieved women. If the employer is unable to deduct, for instance, the employee leaves the organization, and respondent fails to pay, the same will be forwarded to the District Officer.
In my view, the organization is liable for compensation as it failed to provide a secure and dignified working environment to the woman. Justice Verma has also mentioned that employer should be liable to pay for all losses incurred by the women due to sexual harassment.
The act only specifies a fine up to fifty thousand rupees is the employer fails to constitute an Internal Committee or contravenes any of the sections of the act. This amount is peanuts for large organizations and they shall blatantly ignore the act. Justice Verma has rightly recommended a prison sentence in case there is a systemic flaw and discrimination is encouraged. In India in some organizations, sexual harassment by senior managers is considered a right. They can choose any women and she is required to comply.
Justice Verma has done a commendable job in highlighting the problems women face in Indian society and in giving solutions. For once, the report isn’t a white wash to cover some political agenda and shares strong opinions. We have to hope that the government takes the required steps with the same speed the report was issued. More than 25% women in India face sexual harassment at workplace and they have no effective redressal system to file their complaints. For a civilized democratic society, this is an unacceptable situation. The Indian organizations would find the rules tough to follow. However, 25-30% of employee strength constitutes of women. Hence, they must ensure secure and dignified working environment. Finally, after a woman lost her life in a gang rape, we are moving in the right direction. May her sacrifice be worth it.
Wish my Indian readers a Happy Republic Day. Especially the women, hope you get the freedom denied to you even after independence.