What it takes to implement a law on sexual harassment at the workplace in India
The Vishakha guidelines (1997) affirmed that sexual harassment of women was common and resulted in violation of their fundamental rights to life and liberty guaranteed by the Indian Constitution. The Apex court specified that the guidelines would be binding and enforceable on all employers until the Indian Parliament enacted suitable legislation to replace them. Looking at the dismal and faulty implementation of the Vishakha guidelines, fourteen years later a Joint Parliamentary Committee (2011) recommended a special law safeguarding rights of women at workplace. The Committee concluded that given the patriarchal nature of Indian society, the number of women needing redress from sexual harassment at workplaces was high. Prolonged struggle and dialogue by the women’s movement with the government for more than a decade resulted in enactment and enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 on 9th December 2013. Prevention, prohibition and redress of sexual harassment are the key features of the Act. As the title suggests it is a gender specific legislation recognising unequal gender relations at workplaces. It is therefore an explicit form of affirmative action under Section 15(3) of the Indian Constitution, which allows the State to enact special laws for women.
Though the Act appears to be an extension the Vishakha guidelines (1997), spirit of Vishakha is visibly amiss. Nonetheless it has given rise to hopes as it is seen as a concrete step by the government towards dealing with the problem of sexual harassment. This article is based on the argument that unless certain unclear areas in the Act which have potential to influence its implementation in coming years are interpreted from the perspective of constitutional equality and contextualised with the struggle from it emerged with a pro woman understanding, the Act it will remain a token gesture and never be able bring about desired change in the position of women in relation to work.
Meetings of the Internal Complaint Committees (ICC)…..should they happen regularly?
Kapur (2013) states that the Vishakha guidelines envisaged a complaints committee that built ownership towards the issue with enhanced experience and expertise. However in the post Vishakha era, there was little effort both by the employers and the complaints committees to create awareness regarding the issue and the complaint mechanism. This resulted in underreporting of sexual harassment complaints. Studies across India done in the nineties and next decade by Saheli (1998), SARDI (1999), Sanhita (2000), Sakshi (2001), Lawyers Collective-ILO (2002), Yugantar (2003) confirmed this scenario. These studies brought forth that sexual harassment went largely unreported due to fear of stigma, loss of reputation, victim blaming, and disbelief in the complaints. Amongst all the other reasons the studies identified, poor levels of awareness amongst women as one of the key reasons. Centre for Transforming India study (2010) showed direct connection between lack of knowledge about the complaint mechanism amongst women within the organisation and low reporting of sexual harassment. The study concluded that poor levels of awareness about redress mechanisms amongst women were a critical challenge in reporting of sexual harassment. Post enactment of the law this situation can undergo a change if the employers and the ICCs are proactive.
In this light, it is important to discuss functioning of the Internal Complaints Committee (ICC). Section 4 of the Act mandates constitution of an ICC by the employer at every workplace by a written order. ICC is the principal mechanism having power and authority of a civil court for resolution of complaints through conciliation and inquiry. With such vast powers vested it is clear that the ICC has a crucial role to play in prevention and redress of sexual harassment. One of the major gaps that the Act creates in the context of the working of the ICC is that it does not specify frequency and number of meetings for the ICC. A misinterpretation could be that, the ICC needs to meet only after a complaint is reported to it. Consequently if no complaint is received then the ICC members will never come together and will have no role to play in the implementation of the Act. Such an interpretation is detrimental for the organisation in the long run as it will result in the ICC remaining only on paper thereby losing its significance and visibility to the employees. It needs to be understood that the ICC has a vital role to play in the implementation of the law. Section 13 (a) of the Rules mandates every organisation to have a policy on sexual harassment and carry out wide dissemination of the same. In the context of this provision, the ICC members are keepers of the policy who will ensure its efficient implementation. In fact sexual harassment policy of the organisation needs to set out the roles and responsibilities of the ICC firstly from the prevention perspective and lastly in the context of redress. Expected outcome is that the ICC members will then be able to reach out to the women in the organisation and build rapport with them. Sustained dialogues between the ICC and women will instil confidence in women for them to report sexual harassment without facing the hassle of not knowing the avenue to report sexual harassment. Such an exercise will not only help the ICC members to gain visibility but make their existence in the organisation prominent.
Therefore from the prevention point of view, it is essential that the ICC meets at regular intervals for it to become face of in house awareness campaigns on sexual harassment leading to effective compliance of the Act. It is only if the paradigm shifts from mere existence of the ICC on paper to becoming a dynamic body that vigorously espouses prevention, mindsets can undergo a change and systems can become sensitive to women.
Presence of the External Member….is it needed every time?
The Vishakha guidelines (1997) innovated by directing the employers to include outside member in the complaints committee. The Apex court highlighted that the purpose was to avoid pressure or influence on the committee from the senior levels within the organisation. It is obvious from studies that employers often resist the induction of an outside member as they perceive sexual harassment to be an internal matter (Lawyers Collective-ILO, 2002; Chaudhuri, 2008). Chaudhuri (2008) further explains that presence of the external member is seen as interference in internal matters of the organisation. Consequentially calling the member for meetings is thus at the discretion of the organisation. In the context of the new law it is important to emphasise and highlight role of the external member within the ICC.In the Act, Section 4 of the Act necessitates appointment of an outside member with the ICC. However Section 7 of the Rules does not mention mandatory presence of that member as part of the quorum for the ICC meetings. This is glaring loophole in the Act which can be manipulated by employers to suit their vested interests. There is a visible danger that though outside members will be mandatorily appointed with the ICC as per the Act, employers can choose to exclude the external member from certain key meetings of the ICC especially the case hearings. Absence of a third party member in a committee totally comprised of insiders could lead to lack of credible and fair hearings. This will prove to be injurious to the inquiry process and interest of the complainant.
Therefore it is important that the composition of the quorum is done not on the basis of one particular Section, rather taking into consideration spirit of the Act. Appointment of an external member with the complaints committee that originated in the Vishakha guidelines (1997) has been retained in the current law, it can be inferred that presence of an external member adds value to the ICC. Moreover it plays a key role in ensuring reasonable hearing and infuses confidence in the complainant. Pressure to resolve the complaint in a time bound and confidential manner is one of the other crucial functions performed by the outside member. Kapur (2013) stated that the third party member brings in knowledge, skill and capacity to ensure that the processes are done in a professional and unbiased manner. Furthering her argument it can be said that deleting presence of the external member as part of the quorum directly damages chances of a gender sensitive hearing and decision making in cases. Therefore mandatory presence of an outside person during the ICC meetings needs to be acknowledged and included within the sexual harassment policy of the organisation.
Stay connected for more articles from the POSH series.
Anagha has done her Masters in social work from the Tata Institute of Social Sciences and has over 7 years of experience working as a consultant on Prevention of Sexual Harassment (POSH) at Workplace. She is currently pursuing PhD from the same institute on the topic -Sexual Harassment of Women at Workplace, Socio-Legal Study of Organised Sector in Mumbai.