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2. The ruling government is tightening the reins against sexual
harassment at workplaces; however, the law needs to be followed
in both letter and spirit to ensure a safe and productive work
environment for our women
Cracking The Whip Against
Sexual Harassment
At Workplaces
49www.legalera.in | Legal Era | May - June 2015
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has become serious about strictly implementing the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act (Sexual Harassment Law) which was enacted with
effect from December 9, 2013. In a recent written reply to Rajya
Sabha (India’s Upper House of Parliament), Union Women and
Child Development Minister Maneka Gandhi stated that employers
who fail to implement the Sexual Harassment Law would face
fines of `50,000 and in case of subsequent violations, the fine
may double or penalties may lead to cancellation of license or
withdrawal or non-renewal of registration to carry on business. The
Sexual Harassment Law casts a responsibility on every employer
to create an environment which is free from sexual harassment.
“Employers are required to organise workshops and awareness
programmes at regular intervals for sensitising employees about
the provision of this legislation and display notices regarding the
constitution of Internal Committee, penal consequences of sexual
harassment, etc.,” Mrs Gandhi said in her reply. She also stated
that most government departments, 90 per cent of the private sector
and above all, even Parliament, do not have the mandatory Sexual
Harassment Committees in place, this, despite over a quarter of
India’s workforce being women.
Indian Government
Parneet Birgi
Managing Partner
femme LIBERA

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India’s tryst with recognition of harassment against women
at the workplace began with the 1997 judgement of the
Hon’ble Supreme Court of India in Vishaka and Others
Vs. State of Rajasthan and Others which acknowledged
the gravity of sexual harassment of working women and
laid down guidelines for employers to prevent the
commission of acts of sexual harassment and to provide
the procedures for resolution, settlement or prosecution of
sexual harassment. The guidelines issued by the Hon’ble
Supreme Court were treated as law under Article 142 of the
Constitution of India.
Unfortunately, for over 15 years, the dictat of the Hon’ble
Supreme Court of India remained a letter of law not
followed in spirit by organizations including those run by
the Government of India such as PSUs.
Various Courts from time to time observed that the guidelines
and norms framed in the Vishaka Judgment were not being
followed strictly enough in workplaces. This inaction led
the previous government to enact the Sexual Harassment
Law which provides a statutory right of redressal against
workplace harassment against women besides providing a
preventive framework.
In the recent case of ISG Novasoft Technologies Ltd. vs
Mr. Justice T.N.C. Rangarajan, the High Court of Madras
directed a company to pay compensation of `1.68 crores
for not constituting the committee to deal with sexual
harassment issues (“Vishakha Committee”) as mandated
by Supreme Court’s Vishakha Guidelines. The HC observed
that the existence of a grievance redressal committee and
an ombudsperson in the organisation was no substitute for
a Vishakha committee.
India’s population of 1.2 billion has around 48.5% women
who constitute 26% of rural workers and about 14% of the
urban workforce. This participation rate is rapidly growing
and women are increasingly occupying high positions of
responsibility in the corporate world. Protection against
sexual harassment is a cornerstone to enable a safe and
congenial workplace for women and to encourage diversity
at the workplace.
Sexual harassment is a violation of the fundamental right
of a woman to equality under Articles 14 and 15 of the
Constitution of India and the right to life and to live with
dignity under Article 21 of the Constitution of India. Sexual
harassment is also considered a violation of the right to
practice any profession or carry on any occupation, trade or
business which includes the right to a safe environment free
from sexual harassment.
The Sexual Harassment Law adopted definition of
‘sexual harassment’ from Vishaka Judgement and the
term includes any unwelcome act or behaviour (whether
directly or by implication) such as physical contact and
advances, demand or request for sexual favours, making
sexually coloured remarks, showing pornography or any
other unwelcome physical, verbal or non-verbal conduct of
sexual nature. Section 3 of the Act provides that no woman
shall be subjected to sexual harassment at any workplace.
This section further provides the circumstances which if
present or connected with any act or behaviour of sexual
harassment may amount to sexual harassment such as
implied or expressed promise of preferential treatment or
implied or explicit threat of detrimental treatment in her
employment, implied or explicit threat about her present
or future employment, interference with work or creating
an intimidating or offensive or hostile work environment,
humiliating treatment likely to affect health or safety of a
woman, etc.
The Sexual Harassment Law makes it mandatory for every
employer to constitute an internal complaints committee
(ICC), which entertains the complaints made by any
aggrieved women. The members of the ICC are to be
nominated by the employer and ICC should consist of i)
a Presiding Officer who shall be a woman employed by
the organization, ii) not less than two members from
amongst employees preferably committed to the cause
of women or who have had experience in social work or
have legal knowledge and iii) one member from amongst
non-governmental organizations (NGOs) or associations
committed to the cause of women or a person familiar with
the issues relating to sexual harassment.
The Sexual Harassment Law requires that at least one-half
of the members of ICC nominated by employers should be
women. The law also requires formation of Local Complaints
Committee (LCC) for every district by district administration
for receiving complaints of sexual harassment from
establishments where the ICC has not been formed due to
having less than 10 workers or if the complaint is against
the employer himself.
The Sexual Harassment Law provides that an aggrieved
woman can make a written complaint of sexual harassment
at the workplace to the ICC or to the LCC (in case a complaint
is against the employer), within a period of three months
from the date of incident and in case of a series of incidents,
within a period of three months from the date of last incident.
If the aggrieved woman is unable to make a complaint in
writing, reasonable assistance shall be rendered by the
presiding officer or any member of the ICC (or in case the
aggrieved woman is unable to make a complaint in writing
to the LCC, the reasonable assistance shall be rendered by
the Chairperson or any member of the LCC) for making the
complaint in writing.
In case of physical incapacity, a complaint may also be
filed inter alia by her relative or friend or her co-worker or
an officer of the National Commission for Women or State
Women’s Commission or any person who has knowledge
of the incident, with the written consent of the aggrieved
woman.
In case of death of the aggrieved woman, the complaint
may be filed by her legal heir or a person with knowledge
of the incident with such legal heir’s permission. Unless a
settlement is arrived between the parties, ICC is required to

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complete its inquiry into the complaint within
ninety days and submit a report for action
of employer within ten days of completion of
inquiry.
In order to comply with the provisions of the
Sexual Harassment Law in letter and spirit
and make workplaces truly safe and free of
harassment and discrimination, the following
steps must be adopted:
1. A clear and cohesive sexual harassment
policy must be formulated, which is duly
implemented with a zero tolerance mandate.
This policy must follow legal requirements and
should also be aligned with the organization’s
disciplinary process under other employee
policies. The policy should also be clearly
communicated across multiple channels
within an organization and a tone at the top
should be set highlighting its significance.
2. The ICC should be constituted, which clearly
reflects independence and unbiased approach
of the organization and which imbibes trust
and openness.
3. Regular training and sensitisation of
employees should be conducted (at least
annually) with a focus on ‘unacceptable
conduct’ and respect and dignity of all co-
workers.
4. Complaints must be taken seriously and the
right protocols should be followed to ensure
safety of employee making the complaint.
It should be ensured that there is no fear
of retaliation. ICCs should record evidence
carefully and analyse it in balanced manner to
submit a report on findings to management.
Sometimes, interim steps such as separation
of the victim from the accused or sending the
accused on leave on a finding of prima facie
strong case should be adopted. Finally, the
punishment should be commensurate with the
gravity of the offence and must be consistently
applied.
It is important for organizations to go beyond
the ‘tick the box’ exercise and implement the
provisions of Sexual Harassment Law in its true
letter and spirit. A safe work environment is
also a highly productive one which leverages the
diversity of skills, experiences and backgrounds
and ensures dignity of people engaged in
workplace.
Disclaimer – The views expressed in this article
are the personal views of the author and are purely
informative in nature.
Sexual
Harassment
are required to organise
workshops and awareness
programmes at regular intervals
for sensitising employees about
the provision of this
legislation and display notices
regarding the constitution of
Internal Committee, penal
consequences of
Employers
etc.,” Mrs. Maneka Gandhi