Laws around sexual harassment at the workplace were virtually non-existent until the horrific gang rape of a young woman in Delhi in December 2012 sparked off a furious debate.
The government of India instituted a committee under justice J S Verma, former Chief Justice of India, to look at laws dealing with rape and other forms of violence against women. The committee in turn highlighted the need for a specific law to deal with sexual harassment of women at the workplace.
Until then, the Supreme Court-mandated Vishakha guidelines were in force, but lacked the statutory clout needed to enforce them across the country.
What are the legal options which can now be explored, and how effective will the measures and strategies be? How can a complainant or victim protect herself from retaliatory measures while simultaneously pursuing justice?
This piece attempts to answer some of these queries. However, it is important to note victims of sexual harassment must consult an attorney with experience in harassment cases before initiating a complaint.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 law specifically dictates that companies must form an Internal Complaints Committee. The failure to set up such a committee leads to a monetary penalty of Rs 50,000 under section 26 (1). Repeated non-compliance by the company sees penalties compounded and can also lead to the cancellation of license to do business after that under section 26 (1) (i) and (ii) of the Act.
Sexual harassment is defined under the Act as including any one or more of the following unwelcome acts of behavior (whether directly or by implication) namely:
- Physical contact and advances; or
- A demand or request for sexual favors; or
- Making sexually colored remarks; or
- Showing pornography; or
- Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
Before 1997, when the Supreme Court laid down a slew of legally-binding guidelines regarding prevention, prosecution and redressal of sexual harassment cases in the workplace, there was a legal vacuum. It was only in 2013 that the government brought in specific legislation to deal with workplace sexual harassment in the form of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.
Many women who have come forward with allegations are grappling with the question: what about incidents prior to 1997?
Even if there is a time lapse in filing a complaint, criminal law can be used, especially if there are charges of molestation and rape.
At the same time, it is imperative to note that Indian law has a statutory limitation period. i.e. the time within which complaints about certain criminal offenses can lodged after a complaint has been filed. This is as follows:
- If the offense is punishable with only a fine: 6 months
- If the offense is punishable with maximum imprisonment of one year: 1 year
- If the offense is punishable with 1-3 years’ imprisonment: 3 years
- If the offense is punishable with more than three years’ imprisonment: No limitation
According to Section 9 of the 2013 law on sexual harassment, a complaint has to be filed within three months from the date of the incident. However, if the survivor moves court to have this period extended and is able to provide adequate justification, relief can be granted.
On the face of it, this would make it appear that there is no redress in criminal law for offenses allegedly committed years ago, but there is a way out. Section 473 of the Code of Criminal Procedure (CrPC) allows a waiving of the limitation period if the court is satisfied that the complainant had valid reasons for the delay in seeking legal redress.
Moreover, it is true that in cases where the perpetrator is in a position of power, women would hesitate, even for decades, to press charges, fearing retaliation and backlash and discrimination.
Options for complainants
Under the Indian legal system, a sexual harassment complainant is allowed to seek remedies in both civil and criminal law (as outlined above) simultaneously. If she wants the perpetrator to be punished, she can go for criminal law which is stringent and requires a high threshold of burden of proof (beyond reasonable doubt) or if she wants him out of the organization where both she and he are working, she can seek civil remedies.
At the very outset, if a complainant is seeking a remedy, she has to take up the matter with the organization she is working with. As per Section 19 of the law, it is mandatory for every organization which employs women to have an Internal Complaints Committee (ICC), which will be the first body to investigate the allegations. This applies to all employers, irrespective of the size of the workforce or number of women employees.
The law declares that the members of these ICCs be given proper training in the procedures of the law, and at the same time sensitized adequately so that they can overcome their own biases and prejudices.
Moreover, according to Section 19 (e), the employer is bound to provide assistance to the victim/survivor in securing the attendance of witnesses and the person against whom the complaint has been filed. And, according to Section 19 (g), in case the survivor wishes to file a criminal complaint, the employer is bound to provide all material assistance.
Composition of the ICC
The composition of the ICC is crucial, because there have been cases aplenty where allegations have been blocked and survivors disbelieved because the committee members were not fully independent of the influence of the accused. The Act has guidelines which says that an ICC should be constituted with at least four members. The chairperson must be a senior woman in the workplace and there should be at least two other members from amongst the employees. There also needs to be an external independent member.
In case a complainant lacks confidence in the ICC, she can move the high court by way of a writ petition (under Article 226 of the constitution of India) so that judicial directions can be given for constituting an ICC which can be believed to do justice.
In case a complainant wants to remain anonymous, she can invoke Section 19 (a) of the 2013 law which makes it incumbent upon every employer to provide a safe working environment for women employees.
It is significant to note that the ICC has to proceed according to the principles of natural justice, and while conducting hearings, has to follow legal procedures. This means that all opportunities should be given to both the complainant and the respondent to present their respective cases, and this includes the right of cross-examination by both parties.
In case a complainant is aggrieved by the findings of the ICC, she can move to the labor court or tribunal which has jurisdiction. If the respondent – the perpetrator – refuses to abide by the guilty verdict passed by the ICC, or if the employer is still shielding him, the survivor can move court.
Section 16 of the law prohibits publication of any information about the identity and addresses of the survivor, the respondent, witnesses, any information relating to inquiry proceedings, recommendations of the ICC in any manner, notwithstanding the provisions of India’s right to information law. Anybody contravening this provision is liable to be penalized under the relevant service laws. However, there is an exception – it says that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars that can lead to the identification of the aggrieved woman and witnesses.
Guarding Against Retaliation
Perpetrators have a common strategy to get back at their victims: they typically file civil and criminal defamation suits and claim huge damages. There is no reason to be intimidated by this because, if the suit is one of civil defamation, the person filing it has to deposit a percentage of the damages claimed as court fees. This puts him in a spot, by placing upon him a big financial burden (the higher the amount he claims as damages, the higher would be the court fees) before he can proceed with such a retaliatory measure.
As for criminal defamation, the burden of proof is very high. Indian courts are becoming increasingly conscious of women’s right and feminist ways of judging, so it would be tough for a perpetrator to prove that he was defamed by allegations of abuse, unless those are proved to be patently false and malicious.