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

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
Sexual harassment bill tabled in Lok Sabha, DNA, Dec 08, 2010
Bill on sexual harassment at workplace introduced in Lok Sabha, Hindu, Dec 07, 2010
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Fresh directions in custody battles

A recent judgment of the Supreme Court provides some direction in the ever-increasing battles for custody of children. But a legislative framework is also urgently required so that decisions are not just left to judicial subjectivity

Anil Malhotra in THE TRIBUNE CHANDIGARH

The world has shrunk. Inter-continental travel is easier, affordable, faster and comfortable. As a corollary, it has lead to a surge in relationships between individuals of different nationalities and diverse backgrounds. International mobility has dismantled inter-cultural taboos. But when marriages break down, the children become the worst victims. Caught in the cross fire of broken human relationships with ensuing disputes over custody and relocation, children are traumatised and torn between parents. Attempts are often made to remove the children and take them to other countries. The hazards of international child removal are accentuated by the chronic problems of maintaining access or contact internationally and have often defied legal solutions.

However, the Supreme Court of India on 13 May, in a cross-border child custody battle, has laid down principles and created a precedent which is bound to have wide-ranging impact. The matter arose in a US based NRI couple’s case. The wife left her husband in the US and returned to India with her son. She moved a Delhi Guardian Court and got custody rights. In a suit filed in the USA by her estranged husband, who claimed that his wife had abducted the child, a US Court issued a red corner notice against the wife and directed her to return to the USA.

Courts differ

While the wife, who had decided to settle down in India, took refuge in a Delhi district court order allowing her custody of her son, the husband filed an appeal before the Delhi High Court, which set aside the lower court’s order. It upheld the appeal and ruled that since a US court had already issued an order in the custody case and since the parents and the child were all American citizens, Indian courts had no jurisdiction in the matter and all issues needed to be agitated before courts in the USA. The wife then preferred an appeal to the Supreme Court.

The Apex Court this month set aside the judgment of the Delhi High Court and directed that while the proceedings shall go on before the Delhi Guardian Judge to be disposed off as expeditiously as possible, till then, the interim custody will remain with the mother and the father will enjoy visitation rights only.

The Apex Court culled out three questions for determination. The first question related to the jurisdiction of the ‘Guardian Judge’ to entertain the petition for adjudicating custody issues. Interpreting the phrase “ordinarily resident”, the Court held that the intention of parties would also go to determine this important question. The fact that the child was studying and residing in Delhi for the past three years, the court held, had clearly established that both the mother and the child were ‘ordinarily residents of Delhi’. E-mails produced by the wife as evidence also established that the father of the child was a party to this arrangement. Hence, it concluded, the Guadian judge in Delhi had the jurisdiction and competence to decide the custody rights.

The Court also held that the jurisdiction of the Guardian Judge could not be declined on the principle of comity of Courts. Examining earlier precedents, the Court ruled that proceedings in Habeas Corpus matters are summary in nature which may lead to determination of custody issues when the child is within the jurisdiction of the High Court. Distinguishing and contrasting Guardianship proceedings based on evidence, it has been held that if the removed child is not ordinarily resident within its jurisdiction, the Guardian Judge has no jurisdiction to entertain the proceedings even if it is an act of violation of a foreign Court custody order.

Disapproving of the application of the “Comity of Courts” principle in the matter, the Supreme Court held that no foreign court order had been violated by the wife. There was no final decision by any US Court, the minor was voluntarily in India and there was no intention of the wife and the child to return to the USA. The Supreme Court held that the interest of the minor would be better served if the mother continued to have the custody of the child, which was also a more acceptable option.

Balanced view

With all fairness to the husband, the Supreme Court in the third question also modified the order of the Guardian Judge and granted visitation rights to him during the pendency of the petition before the Court in Delhi. Holding that the “father’s care and guidance” is necessary at the “formative and impressionable stage” of the child’s life, the Court viewed that for the “child’s healthy growth and to stay in touch and share moments of joy, learning and happiness with each other”, the father be granted visitation rights through telephonic contact, video conferencing and visits during vacations as determined by the Guardian Judge. This was indeed a humane and a benevolent view of the whole situation.

The well settled and balanced verdict is a harmonious blend of legal principles, a positive interpretation of parental rights, a decisive pronouncement of jurisdictional issues and brings out a confluence of earlier precedents by distinguishing them on factual basis. It is a much needed decree of the Apex Court on legal battles over child removal and normally fought on uncertain grounds with no legislation on the subject. There is, therefore, a dire need to enact a statutory law on inter-parental child removal to be uniformly followed in all such matters. An appropriate legislative solution will be in the larger interests of children. The yeoman effort by the Courts to carve out solutions on a case to case basis can only be a time consuming exercise which cannot be stretched indefinitely.

With the increasing number of Indians migrating to other countries and the growing number of Overseas Citizens of India status, inter-parental child removal needs to be resolved on an international platform. It is no longer a local problem. The phenomenon is global. Parallel Court proceedings in two jurisdictions by warring parents reduce the child to be won over as a trophy at the end of a legal war. Steps have to be taken by joining hands globally to resolve these conflicts by interaction of Courts and countries.

Till India does not become a signatory to the Hague Convention on Civil Aspects of International Child Abduction, this cannot be achieved. It is equally important to create a domestic uniform law with clear, authentic and universal child custody principles before India accedes to the Convention. The machinery to implement the convention must first be devised. Divergent views only divide children. Removed children cannot be allowed to live on a no man’s land. The temptation to wrongfully remove children must be deterred. The cruel abduction of children must find a legislative solution forthwith.

The writer, a lawyer, has authored several books including “India, NRIs and the Law” and is a member of the U.T. NRI Cell, Chandigarh.

Fresh guideline laid down by the Supreme Court of India

The Supreme Court laid down the following principles in its judgment on the case delivered earlier in May.

The expression “Ordinarily resides” in Guardian & Wards Act to be determined also by ‘intention’ of parties and not merely on residence abroad or overseas nationality.

Custody Orders issued by foreign courts not to be taken as conclusive and binding but should be considered as just one of the factors or consideration that would go into the making of a final decision by an Indian Court. “Objectivity and not abject surrender is the mantra in such cases, ” says the apex court’s order.

Habeas Corpus petitions being summary in nature can determine custody issue of children present in its jurisdiction and also embark upon a detailed enquiry in cases where welfare of a minor is in question. In Habeas Corpus proceedings, the legality of the detention of the alleged detenue in the territorial jurisdiction of the Court will be gone into.

The principle of “Comity of Courts” in child custody cases has generally held that foreign judgments are unconditionally conclusive. However, welfare of the minor being paramount, the Supreme Court now says, Indian Courts are duty bound to examine the matter “taking the foreign Judgment only as an input for final consideration.”

(Judgment delivered by Justice Tirath Singh Thakur for the bench on May 13)

No quick fix solution in custodial conflicts

The number of cases related to inter-parental child custody conflicts has gone up sharply. As more and more marriages fall apart, Non-Resident Indian parents often remove their children to India or to foreign jurisdictions either in violation of a foreign court custody order or in infringement of the other spouse’s parental rights.

The Hague Convention, a multilateral treaty developed by the Hague Conference on Private International Law provides an expeditious method of returning a child taken from one member nation to another.

But though the Convention concluded on 25 October 1980 and the treaty became effective from 1 December 1983, India is still not a signatory despite the fact that it has been accepted by 80 nations so far.

The Convention was drafted to “ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.”

The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

But “Inter-parental child abduction” is neither defined nor is it an offence under any statutory law in India. Hence, it is extremely difficult to prove or establish child removal at the hands of a parent who is a natural guardian of the child.

The most expeditious remedy is to file a Writ of Habeas Corpus in the High Court or the Supreme Court for return of custody by a parent on the strength of a foreign Court order or in violation of parental rights.

The alternative remedy is to initiate guardianship proceedings under the Guardian and Wards Act, 1890 by leading evidence and placing all cogent material on the record before a Guardian Judge. Process is cumbersome, tedious and time consuming. Also difficult and slow for a foreign parent.

In 1984, in Surinder Kaur Vs. Harbax Singh Sandhu & in 1987, in Elizabeth Dinshaw Vs.Arvind M. Dinshaw, the Supreme Court exercising its summary jurisdiction returned the removed minor children to the foreign country of their origin on the basis of foreign court custody orders.

In 1998, in Dhanwanti Joshi Vs. Madhav Unde & in 2000, in Sarita Sharma Vs. Sushil Sharma, the Courts favored keeping the child’s welfare and best interests in mind over all other aspects. Accordingly, Foreign court orders became only one consideration in child custody disputes which were to be decided on the merits of each case without any summary return.

In 2010, in V. Ravi Chandran Vs. UOI and again in 2010 in Shilpa Aggarwal Vs. Aviral Mittal, the Supreme Court, following Habeas Corpus petitions, directed the summary return of children to USA and UK respectively, leaving all aspects relating to child welfare to be investigated by Courts in the foreign jurisdiction.

In May 2011, in Ruchi Majoo Vs. Sanjeev Majoo, in an appeal, in a Guardian and Wards petition, the Supreme Court has directed that the proceedings for deciding custody rights shall go on before the Guardian Judge at Delhi and till then the interim custody shall be with the mother. The father has been given visitation rights.

Why should India be interested in joining the 1980 convention?

India is no longer impervious to international inter-parental child removal

The present situation plays into the hands of the abducting parent

The offending parent at times usurps the role of the competent Court

India’s non-signatory status has a negative influence on a foreign Judge who often declines a parent from taking the child to India fearing non-return.

The Convention avoids the problems that may arise in Courts of different countries which are equally competent to decide such issues

The best possible solution would be to become a signatory to the Hague Convention and enact a Indian International Child Abduction Law and create a Central Authority for liaison and for seeking adjudication before designated existing Indian Courts to resolve such disputes to decide summary return or to render decisions on merit. In the interest of children, the stalemate must end.

http://www.tribuneindia.com/2011/20110527/edit.htm#6