16 Jun 2020 6:07 AM GMT
Despite significant progress for gender rights in the 21st century, sexual harassment at the workplace is a cancer that refuses to go away. While India has made progress from the time of the Supreme Court decision in 1997 in Vishaka v. State of Rajasthan, to the enactment of The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('Act'), yet there...
Despite significant progress for gender rights in the 21st century, sexual harassment at the workplace is a cancer that refuses to go away. While India has made progress from the time of the Supreme Court decision in 1997 in Vishaka v. State of Rajasthan, to the enactment of The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('Act'), yet there are crucial gaps that need to be addressed to have an effective redressal mechanism for all employees at a workplace.
Therefore, it heartened us to know that the Government of India has constituted a Group of Ministers ('GoM') to examine the Act. Through this column, we wish to share our experience with the working of the Act and offer our suggestions:
• Currently, the Act is only restricted to complaints of sexual harassment of an aggrieved woman. There is no dedicated legislative mechanism available for sexual harassment faced by men and most importantly transgenders, who continue to be unfortunate objects of ridicule even in modern workplaces. In today's day and age, with equality of all genders a rising slogan, it goes without saying that the time has come to make suitable amendments to the Act, to make it gender-neutral. And the term 'aggrieved woman' in the Act be replaced with 'aggrieved person'.
• The Act states that the Presiding Officer under the Internal Committee ('IC') should be a senior woman employee of the organization. However, there are instances where an organization does not have a senior-level women employee or the Presiding Officer is not available for a particular hearing, due to other commitments. Therefore, the GoM should consider a provision of having two Presiding Officers in the IC, to ensure ease and timely completion of inquiry. Of course, safeguards should be added to ensure that a complaint is heard only by a particular Presiding Officer during the entire period of inquiry.
• The Act should also specify categories, wherein if the relationship of any member of the IC with the complainant or the Respondent, falls under those specified categories, then that member would be ineligible to be a member of the IC for that particular complaint of sexual harassment. Again, the Seventh Schedule of the Arbitration and Conciliation Act, 1996 provides the list of such ineligible relationships. A suitable list of categories can also be drawn for the members of the IC.
• The Act prescribes a tenure of not more than three years for members of the IC and the Presiding Officer. However, the Act is silent on the reappointment of the members after a three-year term. It is requested that the Act specifically state that members of the IC and the Presiding Officer can be reappointed by the employer, upon the end of their term.
• Employers face situations where the Complainant and the Respondent are not working for the same employer but are working in the same workplace. Under Section 11 of the Act, it is the IC of the Respondent which inquires into complaints. Therefore, to ensure a fair and impartial inquiry, it is suggested that the Act explicitly permits the constitution of an Interim Joint IC, with an external member appointed mutually by the employer of, both, the Complainant and Respondent.
• In Australia, we note that a dismissal could be construed unjust, if an employer unreasonably refuses a request of the employee to allow a support person to be present during a dismissal proceeding. In light of this, we recommend that complainants should be permitted to have a support person during the hearing before the IC. However, the Act can clarify that a support person will not be present to advocate or defend a case on behalf of the Complainant.
• The Act has democratized justice delivery by according the powers of a civil court to IC, constituted by the employer. However, there is a lack of guidance to IC on how to effectively exercise these powers in carrying out their solemn task. We suggest that the Government prescribe Standard Operating Procedures to assist the IC in enforcing its powers as a Civil Court. In fact, having a Standard Operating Procedure becomes even more crucial, considering that none of the members of IC are mandatorily required to have a background in law.
• As per the existing provisions, IC can make recommendations to the employer to provide interim relief to the Complainant. However, the Act and the Rules provide a defined set of interim reliefs. We believe that the Act should also provide discretion to the IC to recommend such interim relief as it may deem fit. For instance, some employers are in a position to make accommodation arrangements for the Complainant. Further, the Act only prescribes interim relief to the Complainant, and no measures to grant safety to the witnesses are provided. Therefore, the ambit of protection should also extend to the witnesses.
• Section 14 of the Act states that where the IC arrives at a conclusion that the complaint against the respondent is malicious or has been filed knowing it to be false, or the complainant has used aforged document in the course of inquiry, then the Internal Committee 'may recommend' to the employer to take action. It is suggested that taking action against malicious or false complaints or where forged documents have been submitted, should be mandatory. The phrase 'may recommend' should be replaced with 'shall recommend'.
• The Act should specifically state that Section 16 pertaining to confidentiality of complaint and inquiry proceedings, is applicable on all parties to the inquiry, i.e., complainant, respondent, witnesses and members of the IC. However, for the sake of clarity, the Act can specifically state that the Section will not apply to the Complainant or the Respondent to exercise their rights under Section 18 of the Act.
• Currently, the Act provides for an appeal to a court or a tribunal. However, considering that sexual harassment is a human rights violation, we suggest that an appeal should be permitted to the State Human Rights Commission in the first instance, and, then an appeal can be made to the National Human Rights Commission thereafter. This will also have the added benefit of decongesting courts and tribunals. Therefore, suitable amendments should be made to the Act and the Protection of Human Rights Act, 1993.
• The Act provides for cancellation or withdrawal of registration of license required to run a business, and criminal imprisonment, as penalty for non-compliance with the Act. With India's focus on ease of doing business, it is imperative that such draconian provisions are repealed. Further, Government should drop the mindset of criminalizing certain offences. It is suggested that penalty under the Act carries should be in the nature of a monetary fine, and not criminal sanctions. Monetary fines can be expressed in the form of a penalty unit, instead of rupees. And the value of a penalty unit can be determined by the government from time to time.
We hope that our suggestions will be given due consideration so that we can provide all persons working in India a safe and inclusive workplace.
Authors are employment law counsels with Infosys Limited