Sexual harassment: India
This is a collection of articles archived for the excellence of their content.
Part A: the law, the rules
What is workplace sexual harassment?
The position in 2018
As India faces its #MeToo reckoning there has been the occasional voice questioning the movement’s progress. But sexual harassment, if anything, is a problem that has received less attention than it deserves given the social attitudes which discourage the outing of such cases.
What is sexual harassment at the workplace?
The Inter national Labour Organisation (ILO) defines sexual harassment as unwelcome sexual advances or verbal or physical conduct of a sexual nature that has the effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, abusive or offensive working environment.
How does a sexual harassment case proceed to the court?
If we look at 2016, there were 34,186 cases for investigation by police, which could complete inquiry in 75.9% of these cases. Of the total 34,186, chargesheets were filed in 67.3% of the cases, which were sent for trial. Only 7,665 trials were completed during the year, which was 22% of the total cases investigated by police. The year saw 2,295 convictions, which was only 6.6% of the total cases that the police was supposed to investigate. If one calculates the conviction rate, then 29.9% of the total 7,665 cases in which trial was completed ended in conviction.
How widespread is the problem?
As of mid October, more than 100 people have been called out in India’s unfolding #MeToo moment. In US, where the movement on twitter started last year, more than 900 people have been named till October, 2018. While many have questioned whether the problem is as widespread as is being claimed, analysis of the data suggests that this could actually be the tip of the iceberg, as claimed by proponents. On an average, in the past three years, every hour has witnessed three cases of sexual harassment reported to the police. It has been observed that because of the social stigma of victim-shaming, a large majority of cases often go unreported. A 2018 survey by Stop Street Harassment (SSH), a non-profit, shows that 81% of women and 43% of men reported experiencing some form of sexual harassment and/or assault in their lifetime. The National Sexual Violence Resource Centre (NSVRC), another American organisation, estimates that 63% of sexual assaults are never reported to police.
What proportion of these cases are false allegations?
A study of eight US communities said that the prevalence of false reporting is between 2% and 10%. The data for India shows that false cases constituted 4% of sexual harassment cases disposed of by police in 2016. This indicates that nine out of every 10 complaints of sexual harassment are true.
Supreme Court's guidelines
Vishaka Vs. Rajasthan
Guidelines and norms laid down by the Hon’ble Supreme Court in Vishaka and Others Vs. State of Rajasthan and Others(JT 1997 (7) SC 384)
HAVING REGARD to the definition of ‘human rights’ in Section 2 (d) of the Protection of Human Rights Act, 1993,
TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that en actment of such legislation will take considerable time,
It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women.
Duty of the Employer or other responsible persons in work places and other institutions
It shall be the duty of the employer or other responsible persons in work places or other institutions to preven t or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) Physical contact and advances;
b) A demand or request for sexual favours;
c) Sexually coloured remarks;
d) Showing pornography;
e) Any other unwelcome physical, ve rbal or non-verbal conduct of sexual nature
Where any of these acts is committed in circumstances where-under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse conseq uences might be visited if the victim does not consent to the conduct in ques tion or raises any objection thereto.
All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
A. Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
B. The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in su ch rules against the offender.
C. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
D. Appropriate work conditions sh ould be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Where such conduct amounts to a spec ific offence under the Indian Penal Code or under any other law, the employ er shall initiate appropriate action in accordance with law by making a comp laint with the appropriate authority.
In particular, it should ensure that vi ctims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate comp laint mechanism should be created in the employer’s organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women. Fu rther, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on th e reports of the Complaints Committee to the Government department.
Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
Awareness of the rights of female empl oyees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
Third Party Harassment
Where sexual harassment occurs as a resu lt of an act or omission by any third party or outsider, the employer and pe rson in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
The Central/State Governments are requested to consider adopting suitable measures includin g legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Vishaka, Apparel Export Promotion Council
Two landmark judgments of the Supreme Court delivered in the 1990s threatened male employees with prosecution for any form of sexual harassment of female colleagues, and a 2013 legislation have failed to force behavioural change in ‘predators’.
The first of the two was Vishaka judgment (AIR 1997 SC 3011), delivered on August 13, 1997. The first sentence of the judgment, by a bench of then CJI J S Verma and Justices Sujata V Manohar and B N Kirpal, read, “The present petition has been brought as a class action by certain social activists and NGOs with the aim of focussing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of ‘gender equality’, and to prevent sexual harassment of working women in all workplaces through judicial process, to fill the vacuum in existing legislation.”
The petition was about workplace hazards faced by Bhanwari Devi, a Rajasthan government employee under the women’s development programme, who was sexually assaulted for attempting to prevent rampant child marriage in society.
The SC had said, “The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate, and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfil this felt and urgent social need.”
It laid down elaborate guidelines to proscribe and prosecute ‘predators’ who sexually harassed female employees. “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right,” it said.
Less than two years later, a bench of then CJI A S Anand and Justice V N Khare delivered another landmark judgment on January 20, 1999, in Apparel Export Promotion Council vs A K Chopra (AIR 1999 SC 625). In the backdrop of Vishaka case guidelines, the SC framed a few more questions to broaden the contours of sexual harassment.
“Does an action of the superior against a female employee which is against moral sanctions and does not withstand the test of decency and modesty not amount to sexual harassment? Is physical contact with the female employee an essential ingredient of such a charge? Does the allegation that the superior ‘tried to molest’ a female employee at the ‘place of work’ not constitute an act unbecoming of good conduct and behaviour expected from the superior,” it asked.
Upholding the dismissal of A K Chopra from the job of private secretary to the Council chairman for repeatedly touching ‘Miss X’ inappropriately, Justice Anand had said, “Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee must fall under the general concept of the definition of sexual harassment... There is no gainsaying that each incident of sexual harassment at the place of work results in violation of the fundamental right to gender equality and the right to life and liberty — the two most precious fundamental rights guaranteed by the Constitution of India.”
On June 25, 1993, India ratified the ‘Convention on the Elimination of all Forms of Discrimination Against Women’. Four years later, the SC laid down Vishaka guidelines. It took Parliament another 16 years to enact the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Act provides that a complaint of sexual harassment by a female employee must be made within three months of the incident and that a false charge could invite proceedings against the complainant. Among various acts described as sexual harassment under Section 3(2) of the Act, there is a provision which says “implied or explicit promise of preferential treatment in her employment” for sexual gratification would also constitute an offence under the law. Since the SC has decriminalised Section 377 of IPC, the definition needs reworking.
Such an act becomes an offence only when the approached employee refuses to take the bait of promised preferential treatment from the employer or superior. What if both, the superior as well as the employee, are in sync with the dalliance in exchange of preferential treatment through accelerated career growth? Will this consensual arrangement amount to sexual discrimination of other employees? There could be many other instances providing the flip side to this ‘MeToo’ campaign, as we discovered in the cases of Asia Argento and our own Rohtak sisters.
Giving and taking bribes is inherent in our social culture. It is firmly entrenched even in the professional spheres. Should an employee be empowered to file a complaint of sexual discrimination at the workplace if she/he finds that a certain employee, despite her/his known incompetence professionally, gets accelerated promotions?
The rules; court judgements
A summary, as in 2018
What is sexual harassment at workplace-=: a summary of the rules, as in 2018
A a look at the laws that are in place to make our workplaces safe for women. Vishaka guidelines, promulgated by the Supreme Court, were in place since 1997. This was superseded in December 2013, when the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, or POSH Act, was passed. The Criminal Law (Amendment) Act, 2013, was also passed and Section 354 was added to the Indian Penal Code. This defines sexual harassment and the penalties for the offence. Additionally, with sexual harassment being a crime, employers are obligated to report offences
Accused Must Get Chance To Defend Self: HC
Every case of defamation on social media can’t be equated with those where anonymous sexual harassment allegations are levelled and immediate relief given, Delhi high court has said.
The latter may need court’s intervention since the anonymous accuser becomes the judge and decides the guilt of the other person publically while the accused doesn’t even get a chance to defend him/herself. Such suits by a party affected by anonymous online allegations have been entertained and ex parte (without hearing the other party) orders passed to remove the online content, the court said in a recent order.
“Generally, such accusations are of sexual harassment or misconduct. In such cases, suits have been entertained and ex parte orders issued to social networking sites for taking down the impugned content and to disclose particulars of the uploader of such content,” the court observed. “The reason was that no one can be condemned publically, without having an opportunity to defend him/herself. It was felt that the accuser, in the matter of own complaint/grievance, cannot also be the judge and pronounce the accused guilty publically.”
The court said that orders can be passed in cases of sexual harassment claims made online without revealing identity as “it is not possible for a person accused of sexual harassment or misconduct to prove the negative, that they are not guilty of what they are accused of in a public domain by unknown people who want to hide behind the veil of an electronic identity.”
But the court scotched an attempt by a real estate businessman to get a stay against social media platforms such as YouTube and Google where someone anonymously put out details against his project.
Rejecting the plea of Ritesh Properties & Industries, Justice Rajiv Sahai Endlaw made an important distinction, pointing out that the real estate firm’s case is different from suits against character assassination where the complainant/accuser doesn’t disclose one’s identity. The court took a strong exception to the company not clarifying if the anonymous allegations against the project were false with proper documents.
“When there is no effort in this respect, the only inference is that the allegations are not controverted. The court would not injunct a defendant from publishing the truth. The effect of the injunction, if granted, would be to allow the plaintiff to continue selling real estate without having a good marketable title, thereby cheating gullible buyers,” it noted.
The court scotched an attempt by a real estate firm to get a stay against social media platforms where someone anonymously put out details against his project
Acquittals on hyper-technical grounds: SC frowns upon/ 2021
NEW DELHI: The Supreme Court expressed concern over “a rising trend” of courts invalidating proceedings into sexual misconduct at working place on “hyper-technical” grounds saying that it would defeat the law and would turn judicial process into a punishment for the victim.
“We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties,” a bench of Justices D Y Chandrachud and A S Bopanna said while seting aside the order of Calcutta High Court which had acquitted a BSF personnel from charge of commiting sodomy on his subordinate on the ground that the order of Commandant for preparing an additional RoE (Record of Evidence) was beyond jurisdiction. The HC had set aside an order passed by Summary Security Force Court which held him guilty. The apex court said that the approach of HC was “callous” in this case as there was sufficient evidence against the accused. It said that the HC was incorrect in its interpretation of the jurisdiction of the Commandant and the obligation of the SSFC to furnish reasons under the BSF Act.
“...we would also like to highlight a rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules. For instance, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 penalizes several misconducts of a sexual nature and imposes a mandate on all public and private organizations to create adequate mechanisms for redressal. However, the existence of transformative legislation may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment,” the bench said.
“It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. It is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace,” the bench said.
The court said there was discrepancy regarding the date of occurrence in this case but it was minor in nature since the event occurred soon after midnight and on the next day.
“Deeming such a trivial aspect to be of monumental relevance, while invalidating the entirety of the disciplinary proceedings against the respondent and reinstating him to his position renders the complainant‘s remedy at nought. The history of legal proceedings such as these is a major factor that contributes to the deterrence that civil and criminal mechanisms pose to persons aggrieved of sexual harassment,” it said.
All unwelcome touch not sexual harassment: HC
The court said that an accidental physical contact, though unwelcome, would not amount to sexual harassment.
Similarly, a physical contact which has no undertone of sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment, the court said.
All unwelcome physical contact cannot be called sexual harassment unless it is in the nature of a sexually oriented behaviour, the Delhi high court has said. Justice Vibhu Bakhru, who made the observation, also said that even an accidental physical contact, though unwelcome, would not amount to sexual harassment.
"Similarly, a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment," the court said.
The observations by the bench came during the hearing of an appeal by a CRRI scientist challenging the clean chit given by the complaints committee and disciplinary authority to her former senior colleague, whom she had accused of sexual harassment.
Both of them were working in the Central Road Research Institute (CRRI) which is a part of the Council of Scientific and Industrial Research (CSIR).
The allegation pertained to an incident of April 2005 when the man had entered the laboratory where the woman was working and had snatched samples from her hand, thrown the materials and pushed her out of the room.
The woman had contended that any unwelcome physical contact would amount to sexual harassment. The Complaints Committee after examining her complaint had concluded that "it was a case of altercation in the background of the uncongenial environment prevailing in the division".
Terming the man's conduct as deplorable, it had also said that while there was evidence of physical contact by the man, "the same was not a sexually determined behaviour but was in the nature of an altercation".
The disciplinary authority had accepted the committee's report and passed an order in October 2009 giving clean chit to the man accused of sexual harassment.
Agreeing with the committee's finding, the high court said, "Undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour. Such physical contact must be in the context of a behaviour which is sexually oriented."
The court also rejected the woman's challenge to the constitution of the committee and the disciplinary authority, saying that it finds no infirmity in their set up.
Allegations of sexual abuse may cause suspension in government departments
The Times of India, Jul 18 2015
Suspension before inquiry in sexual harassment case?
Govt employees likely to face action before filing of charges
A government employee, facing allegations of sexual harassment at workplace, may be suspended even before filing of the chargesheet if his continuance in office is likely to prejudice the investigations or leads to a scandal, compromising wider public interest.
A DoPT note issued outlining the steps for conduct of inquiry into complaints of sexual harassment in government departments, also provides for initiation of action without inquiry where the charged government servant threatens or intimidates witnesses, disciplinary authority or members of the complaints committee.Such circumstances may exist either before commencement of the inquiry or develop during the course of the inquiry.
As per the procedure prescribed for dealing with com plaints of sexual harassment, a government employee may be placed under suspension before or after filing of the chargesheet where there is apprehension that he may tamper with witnesses or evidence (documents). “Suspension may also be resorted to where continuance of the government servant in office will be against wider public interest such as there is a public scandal and it is necessary to place the government servant under suspension to demonstrate the policy of the government to deal strictly with officers involved in such scandals,“ says the DoPT order.
“It may be desirable to re sort to suspension in case of misdemeanor involving acts of moral turpitude,“ it adds.
As per Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, every employer, both in the public and private sector, must set up a sexual harassment complaints committee to inquire into such acts reported at workplace. The law provides for transfer of the victim or accused to a different workplace, pending the inquiry, but an accused government employee may also face suspension ahead of being chargesheeted, if the disciplinary authority deems his continuation as prejudicial to the inquiry or against public interest.
Acting tough on an accused who, through or with his associates, tries to intimidate or terrorise witnesses likely to testify against him, the norms empower the disciplinary authority to suspend the inquiry and take action against him without such inquiry . The circumstances leading the disciplinary authority to conclude that it is not reasonably practicable to hold the inquiry include threatening, intimidation or terrorizing of the disciplinary authority , members of the complaints committee, the presenting officer or members of their family .
At the same time, the DoPT has clarified that the “disciplinary authority is not expected to dispense with the inquiry lightly , arbitrarily or with ulterior motive or merely because the case against the government servant is weak“.
To guard against bias on part of the complaints committee during an inquiry , the DoPT norms provide for a stay on the inquiry until the disciplinary authority takes a decision on allegations of bias received. If allegations of bias are established against one member of the panel, the committee may not be allowed to conduct the inquiry .
Doctor’s touch was not inappropriate: HC
Two years after a doctor was accused by a patient of inappropriately touching her, the Bombay high court has struck down sexual harassment charges against the medical practitioner. The woman, who was suffering from a nerve problem on both her hands, had alleged the doctor touched her on the hands and shoulders.
“...We are of the opinion that whatever was done by the doctor was appropriate to the medical situation,” said a division bench of acting chief justice Vijaya Kapse Tahilramani and Justice Makarand Karnik while issuing the order recently. “It cannot be said that the conduct of the doctor was something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done... looking to the medical complaint with which the complainant approached the doctor, it was necessary for him to hold her hands and to touch her shoulders,” said the bench. The court also pointed out that the complainant’s young son as well as a lady compounder were present at the time of the medical examination.
The woman had visited the clinic with her son on April 29, 2016. In her complaint, she said the doctor made her sit on the examination table and told her to hold his fingers with both her hands, which she did. He then pressed her hands as well as shoulders. Subsequently, he told her that she needed to be given Vitamin D3 and D12 injections on the hip. She said she did not feel the doctor’s touch was appropriate and therefore lodged a complaint with police.
Don't soil image of accused until proved guilty: HC
New Delhi: Internal Complaints Committee (ICC) is meant to tackle sexual harassment at workplace and help affected women, not to tarnish reputation of an accused until proven guilty, Delhi high court said.
Justice Najmi Waziri in a recent order said, the task of ICC is not to assume guilt of a person accused of harassment but to go by the evidence. Internal complaints panel is mandatory in every organi sation following the Supreme Court's guidelines in Vishakha case on combating sexual harassment. HC quashed an order of ICC where it concluded that an officer of Indraprastha Gas Ltd (IGL) was guilty of sexual harassment. HC found that the “conclusion was not borne out from the facts and cannot be sustained“ granting him relief.
Justice Waziri put on record his disapproval with the manner in which internal committee of IGL went about the task and indicted the officer despite lack of evidence. “The dignity of neither party can be trifled with in an inquiry proceedings,“ the court observed, after it found that inquiry report had not found the officer guilty, yet inferred that he indulged in behaviour that was “more than failure, even flirtatious, in terms of transgressing the lines of acceptable behaviours at a work place.“
HC said there was nothing on record to support the ICC's inference and even the circumstantial evidence was in favour of the accused.
Government employees accused of sexual harassment can be transferred to ensure fair inquiry
Government employees accused of sexual harassment can be transferred to another office to prevent them from influencing victims and to ensure fair inquiry.
The move by the department of personnel and training (DoPT) follows complaints of the accused trying to influence victims of sexual harassment. The DoPT also said a junior officer can probe charges against seniors accused of sexual harassment.“To ensure fair inquiry , departments may also consider transferring the suspect officer to another office to obviate any risk of that officer using the authority of his office to influence the proceedings,“ an order issued to central government departments said.
All complaints committees set up to inquire into charges of sexual harassment should be headed by a woman.
Harassment panels at companies/ 2017-18
Companies will soon have to disclose whether they have constituted an internal complaints committee (ICC) on sexual harassment as the government is planning to amend its rules to make the move mandatory, Union minister Maneka Gandhi said.
The measure will help the government monitor whether organisations are complying with the Sexual Harassment at Workplace Act, 2013, which requires any entity with 10 or more employees to compulsorily set up an ICC to look into the complaints of sexual misconduct.
Women and child development minister Gandhi, who has been pursuing this issue with the corporate affairs ministry for the past two years, announced on Twitter that the government would revise its rules under the Companies Act, 2013. “I am deeply grateful to Arun Jaitley ji and ministry of corporate affairs for considering our request to amend relevant rules under the Companies Act, 2013, for women’s safety,” she tweeted. An official said the corporate affairs ministry had informed it in a letter that “they will amend the rules” before the end of financial year.
Companies will have to disclose whether they have set up a committee in their annual reports, the official said.
Minors, pulling them towards oneself not sexual harassment: HC
Mumbai: Bombay high court granted bail to a youth booked for pulling a minor girl towards him, observing that his act does not amount to sexual harassment under Protection of Children from Sexual Offences (POCSO) Act, 2012. Justice Bharati Dangre on Friday allowed his bail application and directed his release on a Rs25,000 bail. The youth was booked by Hadapsar police station on September 22, 2021, for offences under Indian Penal Code, Information Technology Act and POCSO Act.
The girl’s statemen t said her male friend had introduced her to his two friends. On September 15, 2021, she reluctantly went to meet him, but those friends were also present. They went together to visit Ganpati pandals. Taking advan tage of her standing alon e, the accused (ap p licant) pulled her towards him but she immediately pushed him away. After she returned home around 4am, she received an objectionable video from him. When her mother saw the video, she lodged a complaint. The three youths were ar rested on Sep tember 22. Police sent their mobile phones for forensic analysis as well as the minor’s tab. The panchnama showed there were two video recordings and five chat messages between the applicant/accused and the minor. Justice Dangre said from panchnama , prima facie there is no connection established between the applicant and the girl regarding the objectionable video.
She noted that as far as offences under section 8 (punishment for sexual assault) and 12 (sexual harassmen t) of POCSO wa s concerned, the prosecution must establish that the act would fall within the purview of “sexual assault” a s defined under Section 7 and also “very necessary to establish that the touch was with sexual intent”.
“The applicant faces accusation at the instance of the victim that he pulled her towards him, but she immediately pushed him away. Prima facie it cannot be said that the offence would fall within the purview of sexual harassment,’’ said Justice Dangre.
The judge also noted that the maximum penalty for offence under both POCSO sections was five years’ imprisonment and a fine. “In the wake of accusations, specifically when the applicant is a young boy aged 22 and with future staring at him , I do not deem it appr opria te to keep him incar cera ted further, though he may face trial and take consequences of the charges levelled against him,’’ she concluded.
Whistling in own house doesn’t show sexual intent: HC
Bombay high court’s Aurangabad bench has granted pre-arrest bail to a trio accused by a woman from a scheduled caste community of offences of a sexual nature such as whistling and making sounds and gestures from a terrace towards her. The HC said, “Merely because some sound is created by a person in his house we cannot directly infer that it is with such an intention that it is with sexual nature towards the informant.’’ The woman had invoked Sections 3(1)(w)(i) and (ii) of the SC/ST (Prevention of Atrocities) Act against the trio which included a woman. The HC said, in order to attract the first provision, a “person should intentionally touch a woman belonging to a Scheduled Caste knowing that she belongs to that caste and such touch is of a sexual nature and is without consent.” The HC benchin its January 5 judgment said the FIR does not say that any of the three accused had touched her body with sexual intent, and hence the offence would not be attracted.TNN
Central government employees
Can claim 90 days of paid leave during inquiry
Women employees in the central government who file complaints of sexual harassment at the workplace can now claim up to 90 days of paid leave during pendency of the inquiry .The move comes amid complaints of the accused trying to influence or threaten the survivors in a few cases.
The special leave will be granted on the recommendation of the internal or local committee formed to look into the charges. This will be in addition to leave given to central government employees.If the complainant feels victimised, she can send a representation to the secretary or head of the organisation.
Initiatives to report sexual harassment
2017/ SHe-box (Sexual harassment electronic box)
‘SHe-box’ (sexual harassment electronic box) — hosted on the website of the Women and Child Development Ministry, also seeks to ensure “effective implementation” of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Women and Child Development ministry on Monday launched an online platform to enable women employees of the Central government to file complaints related to sexual harassment at the workplace.
Union minister Maneka Gandhi said the platform will cater to Central government employees in the beginning and thereafter, its ambit will be widened to include the private sector as well.
“We are also going to soon conduct a national survey to assess the nature and magnitude of sexual harassment at the workplace,” the minister of woman and child development said after launching the portal at her office here.
The online complaint management system — ‘SHe-box’ (sexual harassment electronic box) — hosted on the website of the Women and Child Development Ministry, also seeks to ensure “effective implementation” of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Once a complaint is submitted to the ‘SHe-Box’, it will be directly sent to the internal complaints committee (ICC) of the ministry/department/PSU/autonomous body etc concerned, having jurisdiction to inquire into the matter.
The ICC will take action as prescribed under the Act and update the status of the complaint. The portal is also an effort to provide “speedier remedy” to women facing sexual harassment at the workplace, as envisaged under the sexual harassment Act, a senior official of the ministry said.
The WCD minister also instructed officials to make the portal as “interactive” as possible. The portal should offer a list of follow-up details so that the employee gets to know the exact status of the complaint, she told officials.
The Union government has 30.87 lakh employees. According to the Census of Central Government Employees 2011, women constitute 10.93 per cent of the total force.
“To begin with, central government women employees can file complaints, but we are going to widen the ambit to include the private sector as well. We just need to make a few changes in our online interface. Once it is done, employees from private companies would also be able to lodge complaints,” Ms. Gandhi said.
The decision to host an online platform for sexual harassment cases was taken by the WCD Ministry in October last year after the minister received complaints from women employees in various ministries. Interacting with reporters later, Ms. Gandhi said, “If the internal complaints committees (on sexual harassment) is working, then we are out of the picture totally. But people, who will come to us, are those women employees who work where there are no committees or there’s one for the sake of it or composed of people who are outrightly negative,” she said.
The sexual harassment Act mandates that all workplaces with more than 10 workers constitute an internal complaints committee for receiving complaints of sexual harassment.
“We are not treading on anybody’s toes. The idea of this portal is to remedy the cases before they reach the level where legal action may be warranted,” she said. Ms. Gandhi also asked officials to include a section in the portal where complainants can “vent” their grievances.
On the proposed pan-India survey, she said the idea was initiated after an NGO came up with a small—scale study on matter related to women.
“We will put up the survey on out portal as well as our Facebook page and Twitter handle to reach out to as many people as possible. Some people say installation of CCTV cameras is a harassment. So, we need to to define it so that there are no frivolous cases,” she said.
The minister also said the definition of what constitutes a case of sexual harassment must be made available on the portal.
Part II: the incidents, the allegations
Harassment in cinema, the media
Number of cases reported
Complaints registered: 2011- 14
Dec 20 2014
Sexual harassment complaints with NCW double in 2 yrs
There has been an over 100% increase in sexual harassment complaints with the National Commission for Women in the last two years. The number of complaints has increased from 167 in 2012 to 336 in 2014 according to government data.
The women and child development ministry (WCD) had enacted the sexual harassment of women at workplace (prevention, prohibition and redressal) act, 2013 which covers all women, irrespective of their age or employment status and protect them against sexual harass ment at workplace both in public and private sector, whether organized or unorganized. There was a 34% increase in registration of complaints in the year after the law was brought. The Commission received 249 complaints related to sexual harassment in 2013. Responding to a question in the Lok Sabha WCD minister Maneka Gandhi said that safety of women were of utmost priority for the Government.“The government is endeavoring to put in place effective mechanisms to provide safe environment for women, she said.
The government has also introduced the Criminal Law (Amendment), Act 2013 has been enacted for making the punishment more stringent for offences like rape. Provision for increased penalty for gang rape and causing injury to the victim resulting her to remain in a vegetative state have been made.
2013-15: Harassment in Delhi’s universities
The Times of India, Nov 26 2015
51 harassment cases in 3 years at JNU
The Jawaharlal Nehru University reported the maximum number of sexual harassment cases at 51, with over 100 cases across 16 university and educational institutions in the capital since 2013. The cases were reported to the internal complaints committees (ICC). Out of the 101 cases reported to committees, six are pending. The DCW said most cases across the universities were resolved through settlements. “We got data from all universities except DU whose registrar has been summoned on November 30,“ said DCW chairperson, Swati Maliwal.
Sexual harassment at work: 526 cases in '14
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
The Times of India, Aug 08 2015
About 526 cases of sexual harassment at workplace were reported by women in 2014, the government has said. Of these, 57 cases were reported in office premises and 469 were registered at other places related to work, minister for women and child development Maneka Gandhi said, quoting NCRB data. She said the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, puts responsibility on the appropriate government to monitor its implementation and maintain data on the number of cases filed and disposed of and there was no centralized mechanism to collect such data.
2015-18: spike in complaints in 2018
The National Commission for Women has received 2,383 complaints pertaining to sexual harassment at workplace since 2015. The numbers have been increasing with each passing year with a visible spike this year with over 750 complainants approaching NCW for redressal till October 2018.
14 complainants came forward just in the last one month after the #MeTooIndia campaign took social media by storm.
As the number of complaints pertaining to workplace harassment are on the rise and they reflect a wide range of concerns, NCW chief Rekha Sharma said that NCW is planning to hold a consultation in November to review the provisions and the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. “We will be inviting judges and legal experts to discuss the law and come up with recommendations to further strengthen its implementation,” Sharma said.
On the rising complaints, the NCW chief said that growing awareness about the law has resulted in more people coming forward to complain. In 2015, 522 complaints were received from all over the country and this rose to 539 in 2016 and 570 in 2017. The maximum complaints have come from Uttar Pradesh with the NCW receiving 695 complaints followed by Delhi at 352 and Haryana at 155.
The NCW database also shows 14 complaints received as a fallout of the MeTooIndia campaign. “Most of these pertain to incidents that are many years old. Some are serious and others are incidents that are allegations. Action has been initiated based on the nature of the complaint,” she added. Sharma pointed that the biggest challenge in these cases that relate to incidents that are many years old is about proving these as there are instances where the accused is no longer with the organisation or the organisation itself does not exist.
The NCW chief said that mostly these are complaints from women who are dissatisfied with the findings of the Internal Complaints Committee of their organisations.
2016-17: 12% rise in complaints in BSE's top 100 companies
Higher Nos. Show Growing Compliance, Robust Internal Systems, Say Experts
There has been an increase of around 12% in the number of sexual harassment complaints reported by the BSE's top 100 listed companies in 2016-17. While some companies reported fewer cases, others like Wipro, ICICI Bank, Infosys and Tata Consultancy Services reported more than 50 cases during the year.
Experts believe there is no reason to be alarmed by higher numbers as this only indicates better transparency and robustness of a company's internal mechanism to handle such cases. Earlier, such cases were either swept under the carpet or dealt with in an opaque manner. They were never reported publicly . More companies reporting such numbers indicates growing awareness and compliance with the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Wipro reported 116 cases during the year (111 in the previous year), of which, 102 were disposed of with appropriate actions taken within the statutory timelines. At ICICI Bank, all the 95 cases that were reported in 2016-17 were disposed of during the year. Similarly, at Infosys, out of 88 cases, 72 cases were disposed of by disciplinary action, while five by conciliation.
Vishal Kedia, founder & director, Complykaro Services, which collated the numbers for TOI, said, “It is difficult to judge a company's value by such statistics in isolation.Companies that have a larger number of complaints should not be viewed negatively as they have created a robust system for redressal.“ At the same time, Kedia said not having any complaint necessarily does not mean that everything is in order. It could mean employees are hesitant to complain or there is no adequate awareness about the internal redressal mechanism or employees are not sensitised about what constitutes sexual harassment.
T K Srirang, HR head, ICICI Bank, said, “Today , greater awareness is encouraging corporations to report all such cases. Sometimes the numbers may appear to be relatively high compared to industry peers, but that only means that the corporation has instituted a strong culture where people are free to report all cases, no matter how minor they may appear to be.“
Srirang said although the bank would like the numbers to come down, this should not be at the cost of colleagues under-reporting such inciden ces. “When new hires walk into ICICI Bank, we train them on what is acceptable and what is not. Our employees have the confidence that any issue that they bring to our attention will be dealt with utmost diligence and confidentiality. We constantly emphasise zero tolerance towards unacceptable behaviour, including inappropriate language, and the overall enabling work environment that we ha ve encourages every employ ee to discuss their discomfort fearlessly,“ said Srirang.
Richard Lobo, executive VP and HR head, Infosys, said an increase in the number of reported cases on sexual harassment is an indication that its employees trust the company's process to do the right thing and address their concerns. Wipro too has a policy and framework for employees to report sexual harassment cases at the workplace and the process ensures complete anonymity and confidentiality of information.
2017: Two women harassed at workplace daily
Officially, about two women were harassed at their workplace in India every day so far in 2017, with the National Commission for Women (NCW) receiving an average of 1.7 complaints per day. In the 316 days between January 1 and December 12, the commission received539 complaints, 60% of which were from five states: Uttar Pradesh, Delhi, Maharashtra, Madhya Pradesh and Haryana.
However, the cases reported to the NCW represent only the tip of the iceberg. According to sexual harassment laws, complaints are first expected to be addressed by an internal complaints committee or district complaints committee in the case of unorganised sector workers. The complainant then has a choice to approach the state women’s commission or national commission for redress. However, in many cases survivors don’t complain because the committee has either not been set up or is not considered effective.
Cumulative data for four years from 2014 shows a similar trend with the NCW receiving 1.8 complaints per day on average. In four years, 1,971 complaints were received by the commission.
Sc advocate K V Dhananjaysays a problem withtheexisting system is that there are no penalties for internal committees not acting on complaints, or in many cases further harassing the survivors.
“Eight out of 10 firms do not have a functional committee. While the big ones are more sincere in putting in place a system, The majority of them fail in addressing the concerns of women, and no legal action is taken,” he says.
Three months ago, after theKarnataka Women’s Commission (KWC) ensured action against a supervisor of a garments firm in Bengaluru, 11 other women complained of harassment by the same man for several months.
KWC chairperson Nagalakshmi Bai says it’s not just the garment industry or government; the majority of complaints come from technology firms. “There are two kinds of harassment, professional and sexual, and I’ve seen many casesthat began as professional harassment and eventually ended up as sexual,” shesays, adding that itis important to improve prevention mechanisms.
Despite the introduction of redressal systems — POSH (Policy on Prevention of Sexual Harassment) and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 — sociologist Samata Deshmane argues that women continueto refrain from filing complaints as most workplaces are still dominated by men and victims are often harassedfor raising such issues.
Priya Chetty Rajagopal, CXO search consultant and a member of sexual harassment committees in three firms in Bengaluru says: “Now there is more visibility to such victims and hopefully we will have more people coming forward and reporting cases.” Agreeing with Bai that prevention is the way forward, Priya says
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Sexual harassment: India