Sexual harassment in the workplace-India

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India In India, when the case comes close to deal with the issue of sexual harassment in a workplace, we may first refer to a case law, Vishaka and Ors v State of Rajasthan and Ors. In this case, the Supreme Court of India has laid down the guidelines against sexual harassment in the workplaces. First, the case provides us the duty of the employer or other responsible persons in work places and other institutions. It stated that, the employer or persons in charge at the work places or other institutions have a duty to prevent or the commission of acts of sexual harassment. Besides, the employer or the person in charge at the work places or other institutions also have a duty to provide the procedures for settlement, resolution or prosecution of acts of sexual harassment by taking all required steps. Second, the case also defines what amounted to sexual harassment where it includes such unwelcome sexually determined behavior (whether directly or by implication) as (a) sexually colored remarks; (b) showing pornography; (c) physically contact and advances; (d) a demand or request for sexual favors; (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. All these shall considered as sexual harassment in situation where if anyone conducted it to the others. Third, the case also provides us the preventive steps, where all employers or person in charge at the work places whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation, employers must expressly prohibit of sexual harassment at the work places by notify or publish the rules and regulations at the notice board. The rules and regulations of government and public sector bodies relating to conduct and discipline should include rules and regulations prohibiting the sexual harassment and provide penalties for those who offended the rules. Under the Industrial Employment (Standing Orders) Act 1946, the private employers, should take all steps to include the aforesaid prohibitions in the standing orders. Moreover, an appropriate work conditions in respect of work, leisure, health and hygiene at the work places must be provided by the employer or persons in charge. For example, a company must provide the prayer rooms for the Muslims to pray. Under the Indian Penal Code or under any other law, if any employees been sexual harassed, the employer shall initiate appropriate action in accordance with law by making an appropriate complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The right to seek transfer of the perpetrator or their own transfer should be given to the victims of sexual harassment. Therefore, an appropriate complaint mechanism should be created in the employer’s organization in order to put right on the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. Most of the time, the Complaint Committee headed by a woman and half of its member should be women as women always be the victims when the cases dealing with sexual harassment. The Complaint Committee needs to make an annual report to the Government department about the complaints and action taken by them. The employers and persons in charge also need to report on the compliance with the aforesaid guidelines including on the reports of the Complaint Committee to the Government department.[1] The employees should also be given the rights to raise issues of sexual harassment during Employer-Employee Meetings. [2] Other than the case and the policy of the government, we may also refer to the statutes, such as Indian Penal Code and Indecent Representation of Women (Prohibition) Act 1987 in dealing with sexual harassment’s issue. First, section 294 provides that if whoever does any obscene act in any public place, whether sings, recites or utters any obscene songs ballads or words, in or near any public place, can be punished with imprisonment for a term which may extend to three months, or with fine or both. Second, section 354 provides if whoever assaults or uses criminal force on any woman, intending to outrage her modesty or knowing it likely that he will thereby outrage her modesty, can be punished with imprisonment for a term which may extend to two years, or with fine or both. Also in the Indian Penal Code, section 509 provides that, whoever intending to insult the modesty of a woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture is seen by such woman, or intrudes upon the primary of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine or both. In addition, Indecent Representation of Women (Prohibition) Act 1987 provides that, if anyone harasses another person with books, photographs, paintings, films, pamphlets, packages, etc. which containing the “indecent representation of women”, they are liable for a minimum sentence of two years of imprisonment. Section 7 of Indecent Representation of Women (Prohibition) Act 1987 further holds companies where there has been “indecent representation of women”, such as the display of pornography on the premises, guilty of offences under this act, with a minimum sentence of two years imprisonment. On 23rd April 2013, “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 had finally brought into force which dealing with the protection of women against sexual harassment at workplaces. This Act has in fact followed the decision in the Vishaka’s case. In adopting the statement in the Vishaka’s case by the Supreme Court, Section 2n of this Act has defined sexual harassment to include any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: (i) a demand or request for sexual favors; (ii) physical contact and advances; (iii) showing pornography; (iv) any other unwelcome physical, verbal or non-verbal conduct of sexual nature; or (v) making sexually colored remarks. Further, the Act also add in the following which may also amount to sexual harassment: (i) implied or explicit threat about present or future employment status; (ii) implied or explicit threat of detrimental treatment; (iii) implied or explicit promise of preferential treatment; (iv) interference with work or creating an intimidating or offensive or hostile work environment; or (v) humiliating treatment likely to affect health or safety. At district and block levels, the Act contemplates the constitution of Internal Complaints Committee at the work place and Local Complaints Committee. A District Officer shall be responsible for facilitating and monitoring the activities under the Act. Every workplace employing ten or more than ten employees is required to constitute an Internal Complaints Committee. The Internal Complaints Committee is required to consist of at least four members, and its presiding officer is required to be a woman who at a senior level. In case if no senior woman employee is available, may nominate a woman presiding officer from another office, administrative unit, workplace, or organization. Further, one half of the members must be women. Local Complaints Committees are to be set up by the government which shall receive complaints in respect of establishments that do not have Internal Complaints Committees on account of having less than ten employees and to receive complaints from domestic workers. Based on this Act, it also provides five steps of complaint process. First, a complaint needs to be made in writing by an aggrieved woman within three months of the date of the incident. The time limit may be extended for another three months if, in where the situation, the woman was unable to file the complaint. If the aggrieved woman is unable to make a complaint because of her physical or mental incapacity or death, then her legal heirs may make the complaint on behalf of the victims. Second, upon receipt of the complaint, the Internal Complaints Committee or Local Complaints Committee must proceed to make an inquiry in accordance with the service rules applicable to the respondent or in their absence, in accordance with rules framed under the Act. Third, the inquiry must be completed within a period of 90 days. In case of a complaint by a domestic worker, if in the opinion of the Local Complaints Committee a prima facie case exists, the Local Complaints Committee is required to forward the complaint to the police to register a case under the relevant provisions of the Indian Penal Code. Forth, where the Internal Complaints Committee finds that the allegations against the respondent are proven, Internal Complaints Committee must submit a report to the employer to take action against the offender follow the rules provided under the Act and deduct his wages or salary and such deduction shall be given to the victims as compensation. Lastly, the employer must act on these recommendations given by the Internal Complaints Committee within 60 days. On the part of the duties of the employer, the case law stated earlier has been used where been put into the Act and makes it the duty for every employers to: a) provide a safe working environment at the workplace which shall include safety from all the persons with whom a woman comes into contact at the workplace; b) display at any conspicuous place in the workplace, the penal consequences of sexual harassment and the order constituting the Internal Complaints Committee; c) organize workshops and awareness programs; d) provide necessary facilities to the Internal Complaints Committee for dealing with complaints and conducting inquiries; e) assist in securing the attendance of the respondent and witnesses before the Internal Complaints Committee; f) make available such information to the Internal Complaints Committee or Local Complaints Committee, as it may require; g) provide assistance to the woman if she so chooses to file a criminal complaint; h) initiate criminal action against the perpetrator; i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct; and j) monitor the timely submission of reports by the Internal Complaints Committee. If the employer fails to obey with the provisions of the Act, he or she shall be liable to be punished with a fine Rs. 50,000(RM2,675++). In case of a second or subsequent conviction under this Act, the employer may be punished with twice the punishment prescribed or by cancellation of his license or withdrawal of his registration.[3] Sarojini (2012, March 22). Sexual Harassment Cases. Retrieved April 24, 2014, from http://legalservices.co.in/blogs/entry/Sexual-Harassment-Cases Dr.Bismi Gopalakrishnan (2013) Understanding The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. Retrieved from http://www.livelaw.in/understanding-the-sexual-harassment-of-women-at-workplace-prevention-prohibition-and-redressal-act-2013/
[1] http://legalservices.co.in/blogs/entry/Sexual-Harassment-Cases [2] (JT 1997 (7) SC 384) [3]http://www.livelaw.in/understanding-the-sexual-harassment-of-women-at-workplace-prevention-prohibition-and-redressal-act-2013/
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