Inappropriate behaviour at the workplace does not only make the workplace
unreliable and threatening for women, but it also discourages their ability to
convey themselves in the present contending world in accordance with the
circumstances. The nature of social construct a male member has in the society
continues to justify the violence that is happening against women.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 was India's first legislation that particularly raised the
issue of sexual harassment at the workplace. In this year, 2013 there was also
the promulgation of the criminal law amendment act (2013), which has
criminalized offences such as sexual harassment stalking and voyeurism
Definition In 1997, in the landmark verdict of Vishaka and others v. the
State of Rajasthan
, the Supreme Court of India defined sexual harassment at
the workplace, well-defined anticipatory, prohibitory and redressal measures,
and gave directions towards a legislative authorization to the guidelines
Sexual Harassment includes but is not limited to the following:
- Actual or attempt of rape or sexual assault.
- Unwanted intentional touching, leaning over, cornering or pinching.
- Unwanted sexual banter, jokes, remarks or questions.
- Whistling at someone.
- Kissing sounds, howling and smacking lips.
- Touching an employee's clothing, hair or body.
- Touching or rubbing sexually against another person.
The scope of the present Act The present Act prescribes the constitution of
internal committees comprising of a female as the presiding officer and other
members made up of one-half females. There is also provision for another
district level local complaint committee
for receiving complaints from
workplaces with less than ten employees. Internal Complaint Committee or Local
Complaint Committee members will hold their position not exceeding three years
from the date of their nomination or appointment. But this Act falls short of
Vishakha judgment on numerous critical fronts and due to these controversial
clauses in the Act; the Government has come in for sharp criticism by the
Justice Verma Committee Report.
The Act prescribes that:
The Internal Committee, before initiating an investigation under Section 11 and
at the request of the pained woman take steps to reconcile the matter between
her and the respondent through conciliation. However, taking into consideration
the unequal position of women in society, this provision may be abused. This
also violates the mandate that is prescribed by the Supreme Court in Vishakha,
which was a guiding force to the State 'to ensure a safe workplace/ educational
institution for women'.
Apart from it, according to this Act, it has also been clearly provided that
information related to the enquiry cannot be provided under the Right to
Information (RTI) and it is the third subject, after the National Nuclear Safety
Regulatory Authority Bill and National Sports Development Bill:
where restrictions have been imposed particularly on the RTI. Additionally,
though it is made mandatory for the employers by this Act to constitute internal
complaints committees for looking into all cases of sexual harassment in the
workplace, the Act is faulty as it also envisions a situation in which the
offender may be an employer, as in the Tehelka case
thereby making in
almost all cases the autonomous and unprejudiced functioning of the internal
complaints committees impossible.
The Act also puts some emphasis on seeking to punish false and malicious
complaints along with the new rule that has been framed under this clause
stating that the committee that has been formed by an employer on finding the
accusation of sexual harassment to be malevolent or based on forged papers can
punish the women even with the cessation of their jobs.
Though it is clearly outlined in the Act that simple incapability to
authenticate a claim would not be punishable, it has been found out that the
existence of this clause along with the latest rule of punishing for false and
malicious complaints will inexorably deter the women complainants from filing
any complaints as it is sought by the executor to ascertain in almost every
complaint that the complaint is bogus and woman may be hounded for her inability
to prove their allegations.
Section 14 stipulates to penalise a woman for filing a bogus complaint:
Such a stipulation is a completely insulting provision and is intended to
nullify the purpose of the law. However, implementing a restraint does not mean
creating antagonistic surroundings which will make every employee anxious about
filing a complaint. Employees must be confident to bring into picture
everything, which is uncomfortable and disagreeable to them.
The ambition is to avert the exploitation of the provisions designed to guard
women at the workplace. This deterrence cannot be made by setting an
illustration of someone who was punished for filing a malicious complaint as
every employee who files a complaint under this Act is protected by the
provision providing for secrecy. First significant instrument here is that of
The employer needs to generate alertness amongst its employees regarding the
penalty of filing a malicious complaint. Employees need to be appropriately
trained about the dissimilarity between complaints, which are not proven, and
complaints which fall under the class of being malicious. Every instance a
complaint is filed/ is about to be filed, the employee needs to be reminded of
the cost of filing a malicious complaint. If guidance events (conferences,
seminars, awareness programs etc) are held on the subject of Sexual Harassment,
consequences of filing a malicious complaint under the Act also needs to be made
Requisites after filing the complaint:
Once a complaint has been filed, it is very significant to not assume
maliciousness. If the administration has any intelligence or information that
indicate a conspiracy or spiteful intent behind a grievance, it is practical
that conciliation be encouraged and appropriately guided. Conciliation should
not be suggested or imposed by the organization, but the person who brings the
charges should know that she has a right to choose for conciliation.Conciliation
is an alternating means of dispute resolution where an effort is made to resolve
the dispute without a face off or further hardship.
If the person who filed the complaint indicates a purpose to opt for
conciliation, an impartial and experienced conciliator should meet the parties
independently in an endeavour to resolve their differences. This procedure needs
to be properly monitored in order to diminish the violence of the settlement
procedure and extortionist claims. Focal point needs to be on condition that
suitable apologies and arriving at an agreement; and not on monetary
which is in any case barred by law. But if it doesn't work out as intended, one
needs to remain for the ICC to submit its Inquiry Report before taking any pace.
Due to the character of the work at hand, ICC needs to do its job very well.
This is not very simple because it is hard to differentiate a complaint with no
virtues with that of a complaint with a malicious intent.
Therefore, it is greatly suggested that the members of ICC are trained about how
proof needs to be appreciated and what are the recommendations, which need to be
prepared. Evidence, which comprise accounts of behaviour, messages & e-mails,
should not be taken out of their framework, but considered contextually. The
state of affairs that led to such proof needs to be appreciated and correlated
appropriately to the matter at hand so that its context can be comprehended.
Vishakha v. State of Rajasthan:
In this case, the petitioner, was employed with an Indian government-owned
development bank who had filed a complaint of sexual harassment against the
General Manager of the Bank whowas also her supervisor. However, there was no
action on the part of the employer. Thus, to get justice, she took her case to
the Trial Court where Court acquitted the accused for areason stated as lack of
the medical shred of evidence.
By virtue of which so many women's groups and organizations went for appeal
against the judgments, and finally public interest litigation was filed in the
Supreme Court of India against sexual harassment at the workplace. Therefore,
the contentions put forward by the employee however challenged the validity of
theOrder before the Court under Article 226 of the Constitution of India and
that a higher punishment should be imposed on the Supervisor as well.
This landmark case raised so many issues in the state of affairs of sexual
harassment which took place at a workplace, and the subject which was raised
stated that whether the employer had any liability in the case of sexual
harassment by its employee or to its employees at a workplace or not. Therefore,
the Supreme Court held that occurrence sexual harassment of a woman at a
workplace would be the violation of her fundamental rights of gender equality
and right to life and liberty. The court concluded in its judgment that such an
act would be considered as a violation of women's human rights.
Usha C.S v. Madras Refineries
In this case, the Madras High Court witnessed a complaint of sexual harassment
made by the employee of Madras Refineries Ltd, which was a public sector
undertaking. The employee stated that she was denied her study leave with pay,
salary and promotion since she refused the advances of the general manager of
her department. Further, the complaint committee was established, but the
employee continuously delayed the inquiry hence it was stated that her
allegations of sexual harassment were purely a weapon used to negotiate for a
promotion, study leave and pay which was opposed to company policy.
After inspecting the facts, the court held that the employee's allegations with
regards to her promotion and study:
leave was unjustified as both decisions arose in accordance with the company
policy. The bench further urged the other courts to carry in mind the facts of
each case individually without assuming that the woman is a victim and also
stated that similar to Domestic Violence Cases and Dowry Harassment Laws there
are a massive number of people who are jeopardized with false prosecution. It is
equally difficult for a man who has been falsely implicated in proving his
innocence in a similar way as a woman find it burdensome to accept and tell the
people if she has been assaulted sexually
The Delhi High Court, in Anita Suresh v. Union of India & Ors
, in recent
times imposed a fine of INR 50,000 on a lady who had filed a grievance of
workplace sexual harassment but was unable to establish any evidence or
witnesses to authenticate her case. The petitioner was functioning as an
Assistant Director with ESI Corporation. The petitioner filed a complaint to the
Director-General of ESI Corporation claiming workplace sexual harassment by the
A second occurrence was mentioned stating that the accused told the petitioner
to come unaccompanied in the male toilet to confirm the shortcomings in the
presence of the employees and other members. An Internal Complaints Committee
was constituted to scrutinize the grievance of the petitioner The Committee
scrutinized the petitioner, who could not remember the names of any of the
persons present at the instance of the aforesaid incidents.
The petitioner was shown the appropriate papers relating to the staff members
present on that day but still, she could not remember the names. Failing to
prove anything that was even slightly associated with her case made the case
look like a frivolous one. It became an effort to outline and contaminate the
record of the accused. The employee record of the petitioner also was brought
forward, which evidently pointed that she was not an worker who regularly
followed the rules of manner, and the complaint hence reeked of ulterior
The case was decided against the accused to prove him not guilty, as it was
found that none of the witnesses corroborated with the petitioners' testimony
from the day when the alleged workplace sexual harassment had taken place.
Hence, she was fined INR 50,000 for filing the frivolous complaint.
Conclusion Regardless of many years of consideration, lawful activity, and
support, this examination of information, research, and experience demonstrate
that inappropriate behaviour stays a genuine and inescapable issue crosswise
overall industry areas and work environments.
We found that no division stays immaculate by lewd behaviour, nor unaffected by
its effects: Sexual badgering harms the lives, wellbeing, monetary freedom, and
chances of innumerable exploited people, and costs organizations in lawful
charges, however in lost efficiency, spirit, viability, and talent. By and by
the time is over of talk to verify the working women against lewd behaviour;
it's a high time to adhere to the laws to shield the working ladies which will,
finally, offer a positive hint to set up a created and dynamic culture.
Even though it is beyond the realm of imagination to expect to prepare and
change the demeanour of everybody, it is surely conceivable to prep and changes
the frame of mind methodologies of some based. Further, women's associations
should assume an urgent job to make lawful mindfulness among the majority. They
ought to associate with neighbourhood individuals in spreading mindfulness about
their genuine rights and responsibilities.
The POSH Act, 2013 was enacted with the reason of helping the sufferers of
sexual harassment seek speedy justice. But, it is awful to see the unashamed
misuse of the law in order to satisfy some individual vendetta and needs
stringent measures, such as one imposed by the Honourable High Court in this
case. Frivolous cases squander the time of the Court and augment the burden of
pendency as well.
Substantial fines and restrictions/prohibition need to be imposed for filing
fake cases so that there is no loss of reputation of the individual being
accused of such atrocious crime and no loss of court time as well Due to these
reasons, the question of enforcing this legislation in informal, unregulated
workplaces would remain.
Written By: Kishan Dutt Kalaskar Advocate
Judge) - A Retired Judge and practicing advocate having an
experience of 35+ years in handling different legal matters. He has prepared and
got published Head Notes for more than 10,000 Judgments of the Supreme Court and
High Courts in different Law Journals. From his experience he wants to share
this beneficial information for the individuals having any issues with respect
to their related matters.
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