LAW RESOURCE INDIA

Apex court rules cess on builders constitutionally valid

Posted in CONSTITUTION by NNLRJ INDIA on November 21, 2011
HINDU BUSINESS LINE

In a relief to millions of workers in the building and construction sectors, the Supreme Court has upheld the finding of the Delhi High Court that certain legislations and rules – which allowed the levy of a cess on builders and contractors to create a fund for welfare of these employees, were Constitutionally valid. The court turned down the contention of the appellants – Dewan Chand Builders and Contractors – that the cess was a “tax” and that there was no nexus between the levy and the intended purpose.

The court said, “The inevitable conclusion is that in the instant case there does exist a reasonable nexus between the payer of the Cess and the services rendered for that industry and therefore, the said levy cannot be assailed on the ground that being in the nature of a ‘tax’, it was beyond the legislative competence of Parliament.”

The principal ground for challenge to the validity of The Building and Other Construction Workers Welfare Cess Act (or the Cess Act), 1996 by the appellants was the lack of legislative competence of Parliament. The core issue arising for consideration was whether the cess levied under the scheme of the Cess Act is a ‘fee’ or a ‘tax’.

The apex court said, “There is no doubt in our mind that the Statement of Objects and Reasons of the Cess Act, clearly spells out the essential purpose (of what) the enactment seeks to achieve, that is to augment the Welfare Fund under The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (or the BOCW Act).”

“It is clear from the scheme of the BOCW Act that its sole aim is the welfare of building and construction workers, directly relatable to their constitutionally recognised right to live with basic human dignity, enshrined in Article 21 of the Constitution of India,” it said. “The levy of Cess on the cost of construction incurred by the employers on the building and other construction works is for ensuring sufficient funds for the Welfare Boards to undertake social security schemes and welfare measures for building and other construction workers. The fund, so collected, is directed to specific ends spelt out in the BOCW Act. Therefore, applying the principle laid down in the aforesaid decisions of this Court, it is clear that the said levy is a ‘fee’ and not ‘tax’,” the court said.

Earlier, the Delhi High Court had rejected the builders’ plea challenging the cess levied under the BOCW Act. The Statement of Objects and Reasons of the BOCW Act says, “It is estimated that about 8.5 million workers in the country are engaged in building and other construction works. Building and other construction workers are one of the most numerous and vulnerable segments of the unorganized labour in India. The building and other construction works are characterized by their inherent risk to the life and limb of the workers.”

Its preamble says that it is “An Act to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith or incidental thereto.”

http://www.thehindubusinessline.com/industry-and-economy/economy/article2647624.ece?ref=wl_industry-and-economy

Draft policy ready, better stop exploiting domestic helps

Posted in DOMESTIC WORKERS by NNLRJ INDIA on November 3, 2011
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ECONOMIC TIMES

NEW DELHI: The labour ministry has readied a national policy that confers rights, such as minimum wages and defined work hours, to domestic workers, bringing into the formal economy millions of people who have for long existed beyond its fringes. Domestic workers, estimated by the government at around 6.4 million and by non-government agencies at 10 times that number across India, could also be entitled to annual leave and sick leave, normal hours of work and compensation for overtime and social security coverage under the draft national policy prepared by the labour ministry.

“The draft will be circulated for inputs from other ministries and state governments, following which the labour ministry will prepare a note for the Cabinet,” director-general for labour welfare, Anil Swarup, told ET. The policy also includes rights such as making it mandatory for employers to provide healthy accommodation and sufficient food for live-in workers, a safe working environment, protection against sexual harassment, social security coverage including maternity benefits and formal registration with the labour department.

To make the proposals legally tenable and ensure their enforcement, the policy calls for amendments to legislations such as the Trade Union Act, the Payment of Wages Act, the Minimum Wages Act, the Maternity Benefit Act, and the Contract Labour Act. The policy has the backing of welfare agencies. “At present, domestic workers have nothing to fall back on. The national policy will establish a regulatory framework that will give them certain rights, including minimum wages, social security and protection against trafficking,” said Father Chetan of the Jharkhand-based National Domestic Workers Movement. He is also part of the taskforce that framed the draft legislation.

The policy is in line with employment standards recently adopted by the ILO for domestic workers, which mandates fixed work hours and minimum wages. While the proposed policy falls short of a national legislation for domestic workers, its effectiveness would depend on the Centre’s involvement. “There are seven states including Jharkhand that have brought domestic workers under minimum wages and many more that have implemented the health scheme, RSBY Act, after the labour ministry wrote to them,” Father Chetan said.

However, some warned that the policy would need to be properly implemented to ensure it does not just stay on paper. “It could be a toothless policy if necessary legislations are not changed and proper monitoring and enforcement is not done,” said a member of the task force who did not wish to be named. The labour ministry proposes to set up a monitoring committee comprising officials from the labour and women and child development ministries, representatives of domestic workers and employers.

http://economictimes.indiatimes.com/news/politics/nation/draft-policy-ready-better-stop-exploiting-domestic-helps/articleshow/10586528.cms

The Protection of Women Against Sexual Harassment at Work Place Bill, 2010

Posted in CRIME AGAINST WOMEN, GENDER, WOMEN EMPOWERMENT by NNLRJ INDIA on May 27, 2011

PRS LEGISLATIVE REVIEW

The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints.  It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels.  A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.

Highlights of the Bill

  • The Bill defines sexual harassment at the work place and creates a mechanism for redressal of complaints.  It also provides safeguards against false or malicious charges.
  • Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.  The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
  • The Complaints Committees have the powers of civil courts for gathering evidence.
  • The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
  • Penalties have been prescribed for employers.  Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000.  Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

Key Issues and Analysis

  • There could be feasibility issues in establishing an Internal Complaints Committee at every branch or office with 10 or more employees.
  • The Internal Complaints Committee has been given the powers of a civil court.  However, it does not require members with a legal background nor are there any provisions for legal training.
  • The Bill provides for action against the complainant in case of a false or malicious complaint.  This could deter victims from filing complaints.
  • Two different bodies are called ‘Local Complaints Committee’.  The Bill does not clearly demarcate the jurisdiction, composition and functions of these Committees.
  • Cases of sexual harassment of domestic workers have been specifically excluded from the purview of the Bill.
  • Unlike sexual harassment legislation in many other countries, this Bill does not provide protection to men.

PART A: HIGHLIGHTS OF THE BILL

Context


India has signed and ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). However, India does not have a specific law to address the issue of sexual harassment of women at the place of work. Currently, the Indian Penal Code (IPC) covers criminal acts that outrage or insult the ‘modesty’ of women. It does not cover situations which could create a hostile or difficult environment for women at the work place.

In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the work place.1 The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers.

A draft Bill was circulated by the Ministry of Women and Child Development for public feedback in 2007. The current Bill establishes a framework to be followed by all employers to address the issue of sexual harassment.

Key Features


The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.

Prohibition of Sexual Harassment at the Work Place

  • Sexual harassment is defined to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature.
  • The Bill prohibits sexual harassment at the work place which may include promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems.
  • The Bill defines a work place to include all organizations, and any place visited by an employee during the course of work. It covers every woman at the work place (whether employed or not) except a domestic worker working at home. It defines employer as the person responsible for the management, supervision and control of the work place.

Duties of the employer

  • The Bill assigns certain duties to each employer. These include (a) providing a safe working environment; (b) constituting an Internal Complaints Committee and conspicuously displaying the order constituting the Committee; (c) undertaking workshops and training programmes at regular intervals for sensitizing employees; (d) providing assistance during an inquiry; and (e) initiating action against the perpetrator.

Structure for redressal of complaints

  • Every employer is required to constitute an ‘Internal Complaints Committee’ at all offices and branches with staff strength of 10 or more employees. Members of the committee shall include a senior woman employee, two or more employees and one member from an NGO committed to the cause of women. A member of this Committee may not engage in any paid employment outside the duties of the office.
  • A ‘Local Complaints Committee’ is required to be constituted in every district. An additional ‘Local Complaints Committee’ shall also be constituted at the block level to address complaints in situations where the complainant does not have recourse to an Internal Complaints Committee or where the complaint is against the employer himself.
  • The ‘Local Complaints Committee’, to be constituted by the District Officer, shall include an eminent woman as the Chairperson, a woman working in the area, two members from an NGO committed to the cause of women, and a Protection Officer appointed under the Protection of Women from Domestic Violence Act, 2005.
  • At least 50 percent of the nominated members in any Internal or Local Committee must be women.

Procedure for filing complaints and initiating inquiry

  • An aggrieved woman may complain to the Internal Committee. In the absence of such a committee, she may file a complaint with the Local Committee. All complaints must be in writing. The complainant may also pursue other remedies, including filing a criminal complaint.
  • The Committee shall provide for conciliation if requested by the complainant. Otherwise, the Committee shall initiate an inquiry.

Penalties and appeal

  • If the allegation is proved, the Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act. In addition, it may provide for monetary compensation to the complainant.
  • If the allegation is proved to be false or malicious, the Committee may recommend action against the complainant. However, action may not be taken against a complainant merely on the inability to substantiate a complaint or provide adequate proof.
  • Appeals against the recommendations of either Committee shall lie with the courts.
  • Penalties have also been prescribed for employers who fail to comply with the provisions of the Act. Non-compliance shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration required for carrying on the business.

PART B: KEY ISSUES AND ANALYSIS

Feasibility issues in the composition of the Internal Complaints Committee


Constitution of an internal committee at each administrative unit

The Bill requires that every office or branch with 10 or more employees constitute an Internal Complaints Committee. This requirement differs from the one proposed in the draft Bill circulated by the National Commission for Women (NCW) in 2010.2 The NCW draft Bill prescribed that if units of the work place are located at different places, an Internal Committee shall be constituted ‘as far as practicable’ at all administrative units or offices. A similar requirement was laid down in the 2007 draft Bill circulated by the Ministry of Women and Child Development.3

NGO representation in Internal Committees

Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country with 10 or more employees needs to have one such person in the Committee. As per the Economic Census 2005, there are at least six lakh establishments that employ 10 or more persons.4 There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available.

Bar on engagement in additional paid employment

No member of the Internal Committee is allowed to engage in any paid employment outside the duties of her office. This implies that even the external person in the Committee (who is with an NGO) may not hold any other part-time employment. It is not clear why this condition has been prescribed.

Powers of a civil court

The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. The composition of the Internal Committee does not require any member to have a legal background. Moreover, the Bill does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge.

Ambiguous guidelines for the constitution of the Local Complaints Committee


Two different bodies are called ‘Local Complaints Committee.’ The Bill provides that every District Officer shall constitute a Local Complaints Committee in the district. It also prescribes that an additional Local Complaints Committee shall be constituted at the block level to address complaints in certain cases.

The jurisdiction and functions of these committees have not been delineated. It is also unclear whether the block level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases.

Availability of Protection Officers


The Bill prescribes that a Protection Officer (PO), appointed under the Domestic Violence Act, 2005, shall be a member of the Local Complaints Committee. These Local Committees shall be established at the district level and may also be set up at the block level.

There is wide variation across states in the number of POs appointed per district.5 For instance, Maharashtra has appointed an average of 98 POs per district. Bihar, on the other hand, has appointed one PO for every two districts. This could lead to unavailability of POs in some areas for appointment to the Local Complaints Committees.

Scope for misuse of some provisions


Punishment for false or malicious complaints

The Bill provides that in case a committee arrives at a conclusion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. The clause also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant.

Though there may be merit in providing safeguards against malicious complaints, this clause penalises even false complaints (which may not be malicious). This could deter women from filing complaints. Recent Bills such as the Public Interest Disclosure Bill, 2010 (commonly known as the Whistleblower’s Bill), penalise only those complaints that are mala fidely and knowingly false.6 The National Advisory Council (NAC) has recommended that the entire clause be removed as it might deter victims from seeking protection of the proposed legislation.7

Exclusion of domestic workers


The definition of ‘employee’ specifically excludes ‘domestic workers working at home’. The draft Bill circulated by the Ministry in 20073 and that circulated by the NCW in 2010,2 both included this category of employees in the definition.

The NAC recommendedthat the Bill should be applicable to domestic workers as these employees, ‘especially live-in workers, are prone to sexual harassment and abuse, without access to any complaint mechanism or remedial measures.’7 However, the government stated that ‘it may be difficult to enforce the provisions of the Bill within the privacy of homes and it may be more practical for them to take recourse to provisions under criminal law.’8

International experience


Sexual harassment is a form of illegal employment discrimination in many developed countries including the US, UK and the European Union countries.9 In these domains, the definition of sexual harassment includes employer-employee relationship as well as a hostile work environment. This is similar to the current Bill. However, those laws differ in one important aspect, in that they are gender neutral. This Bill provides protection only to women, and not to men.

 Notes


[1]. Vishaka and others V. State of Rajasthan and others [1997 (6) SCC 241]

[2]. Revised Draft Bill, ‘The Prohibition of Sexual Harassment of Women at Workplace Bill, 2010’, National Commission for Women, http://ncw.nic.in/PDFFiles/sexualharassmentatworkplacebill2005_Revised.pdf

[3]. Draft Bill, ‘The Protection of Women against Sexual Harassment at Workplace Bill, 2007’, Ministry of Women and Child Development, http://wcd.nic.in/protshbill2007.htm

[4]. 5th Economic Census (2005), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/index_6june08.htm

[5]. ‘Agenda No. 7 Review of implementation of Protection of Women from Domestic Violence Act, 2005’, Ministry of Women and Child Development, June 16, 2010, http://wcd.nic.in/agenda16062010/agenda_16062010_item7.pdf

[6]. Clause 16 of The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010

[7]. Press release, National Advisory Council, January 10, 2011, http://nac.nic.in/press_releases/10_january_2011.pdf

[8]. Rajya Sabha unstarred Question 3706, answered on December 13, 2010

[9]. The Civil Rights Act of 1964, United States;  Sex Discrimination Act (1975) and Employment Rights Act (1996), United Kingdom;  Sexual Harassment in the Workplace in EU Member States, Government of Ireland, 2004

Prepared by:

Tonusree Basu  Rohit Kumar

DISCLAIMER: This document is being furnished to you for your information.  You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”).  The opinions expressed herein are entirely those of the author(s).  PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete.  PRS is an independent, not-for-profit group.  This document has been prepared without regard to the objectives or opinions of those who may receive it.

http://www.prsindia.org/index.php?name=Sections&action=bill_details&id=6&bill_id=1402&category=46&parent_category=1

sexual harassment bill.pdf  Bill Text  (293.01 KB)
Bill Summary. Sexual Harassment.pdf  PRS Bill Summary  (70.89 KB)
Legislative Brief - Sexual Harassment - 20May11.pdf  Legislative Brief  (465.31 KB)
Vishaka.pdf  Vishaka Judgement  (36.38 KB)
draft_sexual_harassment_bill.pdf  Draft of 2007 Bill  (99.91 KB)

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Bill to prevent workplace sexual harassment tabled, Hindu, Dec 08, 2010
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Bill on sexual harassment at workplace introduced in Lok Sabha, Hindu, Dec 07, 2010

The Sexual Harassment Bill, going forward

Posted in CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS, SEXUAL OFFENCES by NNLRJ INDIA on April 11, 2011

KUMKUM SEN IN THE BUSINESS STANDARD

It’s been more than fifteen years since the Supreme Court passed its judgment in the Vishaka Vs. State of Rajasthan (Vishaka), and ten since the Medha Kotwal case. Vishakha constitutes the Indian Judiciary’s first pronouncement on gender justice in the workplace.“Harassment”was interpreted to include physical contact and advances, sexually coloured remarks, any physical verbal/non verbal overture or a demand/request, as being indicative, and not comprehensive. The Court prescribed certain guidelines and norms as representing the minimum standards to be followed by employers and other responsible persons in containing and dealing with harassment, bearing in mind that neither civil or penal laws provided adequate protection, till such time a law was enacted. Certain acts of sexual harassment constitute criminal offences, as under section 209 of the Indian Penal Code for performing an obscene act or utterance, and also under Sections 354 and 509 for outrage of modesty of women. But these provisions can not address the various insidious forms sexual harassment can take, and more important, the redressal is not the organisation’s responsibility.

In the absence of indigenous jurisprudence, the Supreme Court relied heavily on the International Convention of All Forms of Discrimination Against Women (CEDAW) which India had recently signed and ratified, and the Protection of Human Rights Act, 1993. However the Government took no interest in pushing the law.

On the other hand, various corporations, multinationals as well as domestic, particularly listed companies, which are subjected to higher degrees of transparency and disclosures, established their internal systems, including grievance cell and a Committee with a senior woman employee as the Chair. Welfare and safety requirements of the women in the work place, such as late night transport, night were firmed up after the murder of a BPO female employee by the cab driver. Instances of complaints and incidents usually do not escalate beyond the HR Department and the Committee. To the limited extent I have been involved as a legal adviser, such issues are usually effectively resolved, or any one party or both move out with or without a gentle nudge from the management. Otherwise, there is complete opacity, particularly in the fast growing services sector, where women are a significant part of the work force, in the implementation of all or any of the Vishakha safeguards, as there is no threat in non-compliance, in the absence of a law. Even then several complaints have reached the High Courts, and the victims have secured justice, notably in the Tata Metallic and Apparel Export cases. More often, the breach has been in the constitution and functioning of the Committee and this was exposed in Medha Kotwal’s Petition before the Supreme Court, wherein on the revelation that the Government was the worst offender, the Court called upon the Central & State Governments and various professional bodies, such as the Bar Council of India to disclose the measures taken by them.

The Bill, introduced in 2010 and referred last month to a Standing Committee, has finally moved, notwithstanding enormous resistance. It.has its critics, but is well drafted., and endeavours to include every type of victim in its definition of an “Aggrieved Women”, who does not have to be an Employee to qualify and to bring within its ambit , students, research scholars, patients. “Employee” has been amplified to include trainees, apprentices, contract and adhoc workers. Perhaps inclusion of “service provider” and “customer” would have provided a more inclusive connotation. Contrary to media reports, the Bill specifically includes domestic worker and “dwelling house” belying the popular impression that this sector has been ignored.

“Workplace” definition deals with every kind of environment which would qualify, in the private and government sectors as well as dwelling places, vehicles, aircrafts, different destinations, hotels in trying to capture all possible locations where harassment having a nexus with workplace or the victim can be perpetrated. The acknowledgement of this concept is critical in the context of the diversity of locations where harassments are perpetrated, rape of a female complainant in a police station being an example.

Interestingly “sexual harassment” is not defined. Section 3 of the proposed bill describes this to include unwelcome sexually determined behaviour, and the various items conceptualised in Vishakha, making it clear that is not limited to any assurance of preferential or threat of detrimental treatment, conduct which is humiliating or inducive to a hostile and unhealthy work environment.

While laws should aim at obliterating sexual harassment and the mindset that evokes such behaviour, panic levels should not be escalated. Every light flirtation or a wolf whistle is not necessarily an act of sexual harassment. Every environment and not all classes of harassment cannot be subject to a uniform policy.

What doesn’t make headlines is the gender neutral subtle and non-violent harassment in the workplace, unrelated to sexual expectations or quid pro quo, which can be based on colour, caste, religion, nationality, age, political affiliations, and the aggression is manifested by way of belittling observations, persistent criticism of work, withholding resources. Till such time the law makers and the Government acknowledge this,,,the victims of such harrasment are without recourse.

Kumkum Sen is a partner at Bharucha & Partners Delhi office and can be reached at kumkum.sen@bharucha.in

Promise to women

Posted in CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, SEXUAL OFFENCES by NNLRJ INDIA on December 2, 2010
Sexual Harassment (The Office)

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T K RAJYALAKSHMI IN THE FRONTLINE

ON November 4, the Union Cabinet gave the go-ahead for the enactment of a law on protection of women from sexual harassment at the workplace. Titled Protection of Women against Sexual Harassment at Workplace Bill, 2010, the draft law is basically a new avatar of the ones prepared in 2004. This development has been pending for long considering the fact that the Supreme Court laid down as early as 1997 certain guidelines to prevent the sexual harassment of women at their workplaces, in its landmark judgment delivered in Vishaka vs the State of Rajasthan and others.

Vishaka, a non-governmental organisation working for gender equality, had filed a writ petition seeking the upholding of the fundamental rights of working women under Article 21 of the Constitution. The immediate reason for the petition was the gang rape of a saathin (a social worker involved in women’s development programmes) of Rajasthan in 1992.

The assault was an act of revenge as the saathin had intervened to prevent a child marriage. The accused were acquitted by the trial court. However, following a hue and cry raised by women’s organisations, the High Court stayed the acquittal.

While some government departments, Ministries, universities and even a small section of the media set up complaints committees as stipulated by the apex court, the private and unorganised sectors did not make much headway in this regard.

Although the Cabinet has cleared the decks for the presentation of the Bill in the ongoing winter session of Parliament, it is quite possible that the introduction of the Bill may be delayed by the din created by the 2G spectrum scam. Women’s organisations feel that the delay may help as the time lag can be used to address certain defects in the Bill. One redeeming feature of the proposed Bill is that women can, at least on paper, look forward to a more decent and secure workplace environment and the employer is liable to pay a fine of Rs.50,000 if he fails to comply with the provisions.

DEFINITION

The definition of sexual harassment in the Bill broadly follows the one expounded by the Supreme Court in 1997. It includes any physical contact and advances or demand or request for sexual favour, unwelcome sexually coloured remarks or gestures, showing pornography or any other unwelcome physical, verbal or non-verbal contact of sexual nature. It recognises the promise of or threat to a woman’s employment prospects or creation of hostile work environment as sexual harassment at the workplace and expressly seeks to prohibit such acts. It provides protection not only to women who are employed but also to those who enter a workplace as clients, customers, apprentices and daily wage workers, or who are employed in an ad hoc capacity.

The deficiencies in the Bill are significant, and women’s organisations have expressed concern over the non-inclusion of certain categories of the female workforce.

First, although the Bill is comprehensive in its definition, it excludes domestic workers from its ambit. The draft Bills prepared painstakingly by the National Commission for Women and the Ministry of Women and Child Development (MoWCD) in collaboration with women’s organisations had included domestic workers in the definition of “employee”.

According to the earlier drafts, an employee was defined as one “employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or by or through an agent, including a contractor, with or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a domestic worker, a co-worker, a contract worker, probationer, trainee, apprentice or by any other name called”.

NEW CLAUSE

A new clause in the Bill brings students, research scholars in colleges/universities, patients in hospitals and women in the unorganised sector under its purview but leaves out domestic workers. Most of these features were present in the draft Bills of the NCW and the MoWCD. The NCW’s latest version of the draft Bill, evolved in January 2010, widened the scope to include research scholars and students and like the draft prepared by the Department of Women and Child Development (before it became a full-fledged Ministry), domestic workers were covered in the definition of employee. Workplace, therefore, included “home or dwelling place”.

Even the definition of sexual harassment has undergone some change. While the Bill draws on the definition provided in the Supreme Court guidelines, wherein sexual harassment was defined to include “unwelcome sexually determined behaviour, physical contact, sexually coloured remarks, showing pornography, request for sexual favours or any other unwelcome conduct, whether verbal, textual, physical, graphic, electronic or any other action, not limited to, implied or overt promise of preferential treatment, implied or overt threat of detrimental treatment or threat about present/future employment status, conduct which interferes with work, or creates an intimidating or hostile work environment”, it has excluded humiliating conduct that could constitute a health and safety concern to the woman.

Curiously, the Bill also provides for safeguards against malicious complaints of sexual harassment but with the caveat that a mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.

Reacting to this aspect, the All India Democratic Women’s Association (AIDWA), which has welcomed the Union government’s decision to introduce such a Bill, stated that the inclusion of the feature providing punishment for malicious complaints went totally against the Vishaka judgment, which had clearly stated that no action should be taken against a woman for making a complaint. The entire idea of a civil law to deal with cases of sexual harassment, it held, was meant to provide an atmosphere that helped women victims to make complaints, as aggrieved women employees were usually hesitant to lodge complaints, fearing reprisals. AIDWA said that in its experience of dealing with cases of sexual harassment at the workplace, it had found that accusations of false complaints were routinely made against the women victims. The organisation has, therefore, demanded that the clause pertaining to punishments to women for false complaints should be removed.

The Bill provides for a “complaints and redress mechanism”, more or less on the lines of the previous drafts, but it has some flaws. The redress mechanism requires every employer to constitute an internal complaints committee which is to be headed by a woman and has women constituting 50 per cent of its members.

As a large number of establishments (41.2 million of the 41.83 million) in the country have fewer than 10 women workers on their rolls, it will not be feasible to set up a complaints committee in each of them. Hence, the Bill provides for the constitution of local complaints committees by the designated district officer at the district or sub-district level. The idea is to ensure that every woman in any workplace, irrespective of its size or nature, will have access to an effective redress mechanism.

The local committees are expected to inquire into the complaints and recommend action to the employer or the district officer. Fearing the possibility of threat to or aggression against the complainant during the pendency of the enquiry, the Bill entitles the woman to seek interim relief in the form of a transfer, either of her own or for the respondent, or seek leave from work.

A definite time frame has been laid down for the inquiry and disposal of the complaints. The complaints committee is required to complete the inquiry within 90 days and the employer or the district officer has been given 60 days to implement the committee’s recommendations. AIDWA has expressed concern over the discretionary powers given to the district officer in the appointment of the committees. This, it feels, can lead to a certain degree of arbitrariness over the constitution of the committees.

The Bill does not make it clear if the recommendations made by the local committees have to be mandatorily implemented by the employer. AIDWA has demanded clarity on this aspect specifying that no additional inquiries be initiated even as the recommendations for punishment are followed scrupulously. The organisation has also suggested that the Bill include the NCW’s proposal to provide monetary compensation to the victim for the trauma and loss of opportunity suffered by her.

The welcome feature of the proposed Bill is that as the State and Central governments will oversee its implementation, employers are duty-bound to include a report on the number of cases filed and disposed of in their annual report. Organisations that do not prepare annual reports will forward this information to the district officer.

The Bill makes it mandatory for every employer to implement the provisions of law within his/her establishment while the State and Central governments have been made responsible for overseeing and ensuring the implementation of the law.

It is hoped that the Bill will be enacted with the inherent flaws rectified. As far as apprehensions of the misuse of the law are concerned, such a possibility exists with regard to every piece of legislation.

The experience of women’s organisations and people dealing with cases such as these shows that laws pertaining to the safety of women are seldom put to good use.

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Protection of Women against Sexual Harassment at Workplace Bill, 2010 approved by Cabinet

The Union Cabinet today approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in the Parliament to ensure a safe environment for women at work places, both in public and private sectors whether organised or unorganized. The measure will help in achieving gender empowerment and equality.

The proposed Bill, if enacted, will ensure that women are protected against sexual harassment at all the work places, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth.

Salient features of the Bill are as follows:

The Bill proposes a definition of sexual harassment, which is as laid down by the Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997). Additionally it recognises the promise or threat to a woman’s employment prospects or creation of hostile work environment as ‘sexual harassment’ at workplace and expressly seeks to prohibit such acts.

The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors.

The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee. Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.

Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to ` 50,000.

Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.

The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee.

The Bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.

Implementation of the Bill will be the responsibility of the Central Government in case of its own undertakings/establishments and of the State Governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory. Besides, the State and Central Governments will oversee implementation as the proposed Bill casts a duty on the Employers to include a Report on the number of cases filed and disposed of in their Annual Report. Organizations, which do not prepare Annual Reports, would forward this information to the District Officer.

Through this implementation mechanism, every employer has the primary duty to implement the provisions of law within his/her establishment while the State and Central Governments have been made responsible for overseeing and ensuring overall implementation of the law. The Governments will also be responsible for maintaining data on the implementation of the Law. In this manner, the proposed Bill will create an elaborate system of reporting and checks and balances, which will result in effective implementation of the Law.

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