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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.
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”.
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.