Revision as of 17:13, 3 November 2017

Vishaka Vs. Rajasthan: Guidelines laid down by Hon Supreme Court

Guidelines and norms laid down by the Hon’ble Supreme Court in Vishaka and Others Vs. State of Rajasthan and Others(JT 1997 (7) SC 384)

HAVING REGARD to the definition of ‘human rights’ in Section 2 (d) of the Protection of Human Rights Act, 1993,

TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that en actment of such legislation will take considerable time,

It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women.

Duty of the Employer or other responsible persons in work places and other institutions

It shall be the duty of the employer or other responsible persons in work places or other institutions to preven t or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.

Definition

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) Physical contact and advances;

b) A demand or request for sexual favours;

c) Sexually coloured remarks;

d) Showing pornography;

e) Any other unwelcome physical, ve rbal or non-verbal conduct of sexual nature

Where any of these acts is committed in circumstances where-under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse conseq uences might be visited if the victim does not consent to the conduct in ques tion or raises any objection thereto.

Preventive Steps

All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

A. Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

B. The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in su ch rules against the offender.

C. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

D. Appropriate work conditions sh ould be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Criminal Proceedings

Where such conduct amounts to a spec ific offence under the Indian Penal Code or under any other law, the employ er shall initiate appropriate action in accordance with law by making a comp laint with the appropriate authority.

In particular, it should ensure that vi ctims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

Disciplinary Action

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

Complaint Mechanism

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate comp laint mechanism should be created in the employer’s organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

Complaints Committee

The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman and not less than half of its member should be women. Fu rther, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.

The employers and person in charge will also report on the compliance with the aforesaid guidelines including on th e reports of the Complaints Committee to the Government department.

Workers’ Initiative

Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

Awareness

Awareness of the rights of female empl oyees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

Third Party Harassment

Where sexual harassment occurs as a resu lt of an act or omission by any third party or outsider, the employer and pe rson in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

The Central/State Governments are requested to consider adopting suitable measures includin g legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

The rules; court judgements

All unwelcome touch not sexual harassment: HC

All unwelcome physical contact not sexual harassment: HC, Nov 2, 2017: The Times of India

HIGHLIGHTS

The court said that an accidental physical contact, though unwelcome, would not amount to sexual harassment.

Similarly, a physical contact which has no undertone of sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment, the court said.

All unwelcome physical contact cannot be called sexual harassment unless it is in the nature of a sexually oriented behaviour, the Delhi high court has said. Justice Vibhu Bakhru, who made the observation, also said that even an accidental physical contact, though unwelcome, would not amount to sexual harassment.

"Similarly, a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment," the court said.

The observations by the bench came during the hearing of an appeal by a CRRI scientist challenging the clean chit given by the complaints committee and disciplinary authority to her former senior colleague, whom she had accused of sexual harassment.

Both of them were working in the Central Road Research Institute (CRRI) which is a part of the Council of Scientific and Industrial Research (CSIR).

The allegation pertained to an incident of April 2005 when the man had entered the laboratory where the woman was working and had snatched samples from her hand, thrown the materials and pushed her out of the room.

The woman had contended that any unwelcome physical contact would amount to sexual harassment. The Complaints Committee after examining her complaint had concluded that "it was a case of altercation in the background of the uncongenial environment prevailing in the division".

Terming the man's conduct as deplorable, it had also said that while there was evidence of physical contact by the man, "the same was not a sexually determined behaviour but was in the nature of an altercation".

The disciplinary authority had accepted the committee's report and passed an order in October 2009 giving clean chit to the man accused of sexual harassment.

Agreeing with the committee's finding, the high court said, "Undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour. Such physical contact must be in the context of a behaviour which is sexually oriented."

The court also rejected the woman's challenge to the constitution of the committee and the disciplinary authority, saying that it finds no infirmity in their set up.

Allegations of sexual abuse may cause suspension in government departments

The Times of India, Jul 18 2015

Bharti Jain

Suspension before inquiry in sexual harassment case?

Govt employees likely to face action before filing of charges

A government employee, facing allegations of sexual harassment at workplace, may be suspended even before filing of the chargesheet if his continuance in office is likely to prejudice the investigations or leads to a scandal, compromising wider public interest.

A DoPT note issued outlining the steps for conduct of inquiry into complaints of sexual harassment in government departments, also provides for initiation of action without inquiry where the charged government servant threatens or intimidates witnesses, disciplinary authority or members of the complaints committee.Such circumstances may exist either before commencement of the inquiry or develop during the course of the inquiry.

As per the procedure prescribed for dealing with com plaints of sexual harassment, a government employee may be placed under suspension before or after filing of the chargesheet where there is apprehension that he may tamper with witnesses or evidence (documents). “Suspension may also be resorted to where continuance of the government servant in office will be against wider public interest such as there is a public scandal and it is necessary to place the government servant under suspension to demonstrate the policy of the government to deal strictly with officers involved in such scandals,“ says the DoPT order.

“It may be desirable to re sort to suspension in case of misdemeanor involving acts of moral turpitude,“ it adds.

As per Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, every employer, both in the public and private sector, must set up a sexual harassment complaints committee to inquire into such acts reported at workplace. The law provides for transfer of the victim or accused to a different workplace, pending the inquiry, but an accused government employee may also face suspension ahead of being chargesheeted, if the disciplinary authority deems his continuation as prejudicial to the inquiry or against public interest.

Acting tough on an accused who, through or with his associates, tries to intimidate or terrorise witnesses likely to testify against him, the norms empower the disciplinary authority to suspend the inquiry and take action against him without such inquiry . The circumstances leading the disciplinary authority to conclude that it is not reasonably practicable to hold the inquiry include threatening, intimidation or terrorizing of the disciplinary authority , members of the complaints committee, the presenting officer or members of their family .

At the same time, the DoPT has clarified that the “disciplinary authority is not expected to dispense with the inquiry lightly , arbitrarily or with ulterior motive or merely because the case against the government servant is weak“.

To guard against bias on part of the complaints committee during an inquiry , the DoPT norms provide for a stay on the inquiry until the disciplinary authority takes a decision on allegations of bias received. If allegations of bias are established against one member of the panel, the committee may not be allowed to conduct the inquiry .

Don't soil image of accused until proved guilty: HC

Abhinav Garg, Don't soil image of harassment accused until proved guilty: HC, Nov 27 2016 : The Times of India

New Delhi: Internal Complaints Committee (ICC) is meant to tackle sexual harassment at workplace and help affected women, not to tarnish reputation of an accused until proven guilty, Delhi high court said.

Justice Najmi Waziri in a recent order said, the task of ICC is not to assume guilt of a person accused of harassment but to go by the evidence. Internal complaints panel is mandatory in every organi sation following the Supreme Court's guidelines in Vishakha case on combating sexual harassment. HC quashed an order of ICC where it concluded that an officer of Indraprastha Gas Ltd (IGL) was guilty of sexual harassment. HC found that the “conclusion was not borne out from the facts and cannot be sustained“ granting him relief.

Justice Waziri put on record his disapproval with the manner in which internal committee of IGL went about the task and indicted the officer despite lack of evidence. “The dignity of neither party can be trifled with in an inquiry proceedings,“ the court observed, after it found that inquiry report had not found the officer guilty, yet inferred that he indulged in behaviour that was “more than failure, even flirtatious, in terms of transgressing the lines of acceptable behaviours at a work place.“

HC said there was nothing on record to support the ICC's inference and even the circumstantial evidence was in favour of the accused.

Government employees accused of sexual harassment can be transferred to ensure fair inquiry

PTI, Sex offence: Govt can shift staff for probe, Sep 13 2016 : The Times of India

Government employees accused of sexual harassment can be transferred to another office to prevent them from influencing victims and to ensure fair inquiry.

The move by the department of personnel and training (DoPT) follows complaints of the accused trying to influence victims of sexual harassment. The DoPT also said a junior officer can probe charges against seniors accused of sexual harassment.“To ensure fair inquiry , departments may also consider transferring the suspect officer to another office to obviate any risk of that officer using the authority of his office to influence the proceedings,“ an order issued to central government departments said.

All complaints committees set up to inquire into charges of sexual harassment should be headed by a woman.

Central government employees

Can claim 90 days of paid leave during inquiry

Paid leave for harassment complainants, March 21, 2017: The Times of India 

Women employees in the central government who file complaints of sexual harassment at the workplace can now claim up to 90 days of paid leave during pendency of the inquiry .The move comes amid complaints of the accused trying to influence or threaten the survivors in a few cases.

The special leave will be granted on the recommendation of the internal or local committee formed to look into the charges. This will be in addition to leave given to central government employees.If the complainant feels victimised, she can send a representation to the secretary or head of the organisation.

Initiatives to report sexual harassment

2017/ SHe-box (Sexual harassment electronic box)

July 24, 2017: The Hindu

‘SHe-box’ (sexual harassment electronic box) — hosted on the website of the Women and Child Development Ministry, also seeks to ensure “effective implementation” of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The Women and Child Development ministry on Monday launched an online platform to enable women employees of the Central government to file complaints related to sexual harassment at the workplace.

Union minister Maneka Gandhi said the platform will cater to Central government employees in the beginning and thereafter, its ambit will be widened to include the private sector as well.

“We are also going to soon conduct a national survey to assess the nature and magnitude of sexual harassment at the workplace,” the minister of woman and child development said after launching the portal at her office here.

The online complaint management system — ‘SHe-box’ (sexual harassment electronic box) — hosted on the website of the Women and Child Development Ministry, also seeks to ensure “effective implementation” of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Once a complaint is submitted to the ‘SHe-Box’, it will be directly sent to the internal complaints committee (ICC) of the ministry/department/PSU/autonomous body etc concerned, having jurisdiction to inquire into the matter.

The ICC will take action as prescribed under the Act and update the status of the complaint. The portal is also an effort to provide “speedier remedy” to women facing sexual harassment at the workplace, as envisaged under the sexual harassment Act, a senior official of the ministry said.

The WCD minister also instructed officials to make the portal as “interactive” as possible. The portal should offer a list of follow-up details so that the employee gets to know the exact status of the complaint, she told officials.

The Union government has 30.87 lakh employees. According to the Census of Central Government Employees 2011, women constitute 10.93 per cent of the total force.

“To begin with, central government women employees can file complaints, but we are going to widen the ambit to include the private sector as well. We just need to make a few changes in our online interface. Once it is done, employees from private companies would also be able to lodge complaints,” Ms. Gandhi said.

The decision to host an online platform for sexual harassment cases was taken by the WCD Ministry in October last year after the minister received complaints from women employees in various ministries. Interacting with reporters later, Ms. Gandhi said, “If the internal complaints committees (on sexual harassment) is working, then we are out of the picture totally. But people, who will come to us, are those women employees who work where there are no committees or there’s one for the sake of it or composed of people who are outrightly negative,” she said.

The sexual harassment Act mandates that all workplaces with more than 10 workers constitute an internal complaints committee for receiving complaints of sexual harassment.

“We are not treading on anybody’s toes. The idea of this portal is to remedy the cases before they reach the level where legal action may be warranted,” she said. Ms. Gandhi also asked officials to include a section in the portal where complainants can “vent” their grievances.

On the proposed pan-India survey, she said the idea was initiated after an NGO came up with a small—scale study on matter related to women.

“We will put up the survey on out portal as well as our Facebook page and Twitter handle to reach out to as many people as possible. Some people say installation of CCTV cameras is a harassment. So, we need to to define it so that there are no frivolous cases,” she said.

The minister also said the definition of what constitutes a case of sexual harassment must be made available on the portal.

Number of cases reported

Complaints registered: 2011- 14

The Times of India

Dec 20 2014

Rising complaints

Sexual harassment complaints with NCW double in 2 yrs

There has been an over 100% increase in sexual harassment complaints with the National Commission for Women in the last two years. The number of complaints has increased from 167 in 2012 to 336 in 2014 according to government data.

The women and child development ministry (WCD) had enacted the sexual harassment of women at workplace (prevention, prohibition and redressal) act, 2013 which covers all women, irrespective of their age or employment status and protect them against sexual harass ment at workplace both in public and private sector, whether organized or unorganized. There was a 34% increase in registration of complaints in the year after the law was brought. The Commission received 249 complaints related to sexual harassment in 2013. Responding to a question in the Lok Sabha WCD minister Maneka Gandhi said that safety of women were of utmost priority for the Government.“The government is endeavoring to put in place effective mechanisms to provide safe environment for women, she said.

The government has also introduced the Criminal Law (Amendment), Act 2013 has been enacted for making the punishment more stringent for offences like rape. Provision for increased penalty for gang rape and causing injury to the victim resulting her to remain in a vegetative state have been made.

2013-15: Harassment in Delhi’s universities

The Times of India, Nov 26 2015

51 harassment cases in 3 years at JNU

The Jawaharlal Nehru University reported the maximum number of sexual harassment cases at 51, with over 100 cases across 16 university and educational institutions in the capital since 2013. The cases were reported to the internal complaints committees (ICC). Out of the 101 cases reported to committees, six are pending. The DCW said most cases across the universities were resolved through settlements. “We got data from all universities except DU whose registrar has been summoned on November 30,“ said DCW chairperson, Swati Maliwal.

Sexual harassment at work: 526 cases in '14

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The Times of India, Aug 08 2015

About 526 cases of sexual harassment at workplace were reported by women in 2014, the government has said. Of these, 57 cases were reported in office premises and 469 were registered at other places related to work, minister for women and child development Maneka Gandhi said, quoting NCRB data. She said the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, puts responsibility on the appropriate government to monitor its implementation and maintain data on the number of cases filed and disposed of and there was no centralized mechanism to collect such data.

2016-17: 12% rise in complaints in BSE's top 100 companies

Namrata Singh, Cos see rise in sexual harassment plaints, September 7, 2017: The Times of India

Sexual harassment complaints in 2015-17, year-wise; Namrata Singh, Cos see rise in sexual harassment plaints, September 7, 2017: The Times of India

Higher Nos. Show Growing Compliance, Robust Internal Systems, Say Experts

There has been an increase of around 12% in the number of sexual harassment complaints reported by the BSE's top 100 listed companies in 2016-17. While some companies reported fewer cases, others like Wipro, ICICI Bank, Infosys and Tata Consultancy Services reported more than 50 cases during the year.

Experts believe there is no reason to be alarmed by higher numbers as this only indicates better transparency and robustness of a company's internal mechanism to handle such cases. Earlier, such cases were either swept under the carpet or dealt with in an opaque manner. They were never reported publicly . More companies reporting such numbers indicates growing awareness and compliance with the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Wipro reported 116 cases during the year (111 in the previous year), of which, 102 were disposed of with appropriate actions taken within the statutory timelines. At ICICI Bank, all the 95 cases that were reported in 2016-17 were disposed of during the year. Similarly, at Infosys, out of 88 cases, 72 cases were disposed of by disciplinary action, while five by conciliation.

Vishal Kedia, founder & director, Complykaro Services, which collated the numbers for TOI, said, “It is difficult to judge a company's value by such statistics in isolation.Companies that have a larger number of complaints should not be viewed negatively as they have created a robust system for redressal.“ At the same time, Kedia said not having any complaint necessarily does not mean that everything is in order. It could mean employees are hesitant to complain or there is no adequate awareness about the internal redressal mechanism or employees are not sensitised about what constitutes sexual harassment.

T K Srirang, HR head, ICICI Bank, said, “Today , greater awareness is encouraging corporations to report all such cases. Sometimes the numbers may appear to be relatively high compared to industry peers, but that only means that the corporation has instituted a strong culture where people are free to report all cases, no matter how minor they may appear to be.“

Srirang said although the bank would like the numbers to come down, this should not be at the cost of colleagues under-reporting such inciden ces. “When new hires walk into ICICI Bank, we train them on what is acceptable and what is not. Our employees have the confidence that any issue that they bring to our attention will be dealt with utmost diligence and confidentiality. We constantly emphasise zero tolerance towards unacceptable behaviour, including inappropriate language, and the overall enabling work environment that we ha ve encourages every employ ee to discuss their discomfort fearlessly,“ said Srirang.

Richard Lobo, executive VP and HR head, Infosys, said an increase in the number of reported cases on sexual harassment is an indication that its employees trust the company's process to do the right thing and address their concerns. Wipro too has a policy and framework for employees to report sexual harassment cases at the workplace and the process ensures complete anonymity and confidentiality of information.

See also

Rapes in India<> Rapes in India: court verdicts <> Rape definitions unique to India<> Rapes in India: the legal position after 2013<> <>Rapes in India: Compensation and help for survivors <> Rapes in India: annual statistics

Acid attacks: India

Crimes against women: India

Eve teasing: India

Sexual harassment: India