Not many things are as exciting as a tussle between the Parliament and the Supreme Court on a social issue. Perhaps only a match-up between Federer and Nadal. The only difference is what hangs in the balance. While the sports teams might be coveting a trophy, in the case of the Parliament and the Supreme Court, it’s the fate of a nation, and of its people.
We all know something (or maybe a lot) about the sexual harassment policies of our organizations, but if we dig a little deeper into how they came to be, we come across a fascinating case of legislative power shifting from the Parliament to the Supreme Court and then back to the Parliament. In this article, we will only be able to touch upon the basics of how the law came to be and what it says.
Historical antecedents of sexual harassment at workplace law in India
A case was brought before the Supreme Court of India by an NGO called Vishaka (and other social activists) after a social worker in Rajasthan was gang raped during the course of fulfilling her work duties by attempting to prevent a child marriage. In their 1997 judgement, the Supreme Court lamented the fact that there existed a “legislative vacuum” to prevent sexual harassment of women at their workplace.
The Supreme Court said that each case of sexual harassment at the workplace constituted a “violation of the fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty’” of the victim, and a “violation of the rights under Article 14, 15 and 21 of Constitution”. These are, of course, fundamental rights guaranteed under the Indian Constitution relating to equality and dignity of life. The court held that such incidents also clearly constituted a “violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or business.’”
Recalling several other provisions of the Constitution that affect women, and the international conventions and treaties that India is a signatory to, the Supreme Court took it upon itself to cure the aforementioned “legislative vacuum” by issuing “guidelines” that would be mandatory upon Indian employers – until the time the Parliament enacted an appropriate law, whenever that might be. This effectively became law, just not made by the Indian law-making body, but by the judges of the Supreme Court!
In the guidelines, the Supreme Court defined sexual harassment, outlined the duties of the employer in preventing cases of sexual harassment, stated what these preventive measures should look like, laid out a complaints mechanism and designed the first prototype of the internal complaints committee, amongst other things.
All of this would be later further defined and developed by the Parliament, in seizing back its legislative power, through the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“the Act”). This meant that the judicial law laid down in the Vishaka case by the Supreme Court was good law for nearly 16 years!
The Sexual Harassment Prevention Act 2013 – what you need to know
As women, it is extremely important for us to know some key information about this law so that we feel secure in our working environments. Here’s a list (non-exhaustive) of what this Act provides for, for our quick reference-
- The term “sexual harassment” includes physical and verbal harassment both. It is defined under the law to include unwelcome acts or behaviours, such as, physical contact and advances, a demand or request for sexual favours, making sexually coloured remarks, showing pornography, or broadly, any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. This list is non-exhaustive and whether something that happened falls under the term “sexual harassment” will be determined case-by-case. Some examples of what sexual harassment might look like are, repeatedly asking for dates, sexist remarks, commenting on your body or appearance, offering employment benefits in return for sexual favours, threatening to impede your progress in the office if you don’t agree to their demands, etc.
- “Workplace” under the Act is not just the physical confines of your office. If you go anywhere on a work-related assignment, including while in transportation arranged by the employer – all of that falls within the definition of “workplace”. This will also include work meetings happening in restaurants or cafes, an office event being organized in a social setting, and also on an airplane with your colleague on your way to a work assignment. In COVID times, you might be working from home digitally. Cases of sexual harassment committed through zoom or other online media while you are at home, it is being argued, can be brought under the purview of the Act.
- You don’t have to be an “employee” in the traditional sense of the word to be protected by the Act. Even if you are a contractor, consultant, temp, part-time, intern, volunteer, etc. – the Act applies to you. The Act also applies to your household help, if you have one, in which case the “employer” would be you.
- If you have 10 or more employees in your office, your employer is duty-bound under this Act to constitute an “Internal Complaints Committee” which is given wide powers to hear and redress cases of sexual harassment. If you work for an office where there are more than 10 employees and have not heard of anything related to prevention of sexual harassment, please consult a lawyer or speak to your HR!
- Some things that can happen after the complaint is filed with the Internal Complaints Committee are these: the victim can request for a “conciliation” (but no monetary payments are allowed), if found guilty, the perpetrator might be asked for a written apology, other disciplinary action might be taken, such as warning, reprimand, withholding of promotion, withholding pay raise, termination from service, etc. The powers of the Committee are wide in this matter.
If you would like to read the full legislation, it can be found here. Please know that there are several other provisions of the Act, both substantive and procedural, that we have not recounted or summarized here. If you wish to take action under the Act, please do consult a lawyer and get the latest and most accurate counsel from them to proceed.
ProactiveForHer is a digital clinic for women, offering accessible, personalized, and confidential health-care solutions. We offer products and services for out-patient health concerns of Indian women, across their lifetime - from puberty to pregnancy to menopause. To know more on the sexual and reproductive health of women, visit https://www.proactiveforher.com/