India s Law on Prevention of Sexual Harassment at …

1 MUMBA I S I L IC O N VAL L E Y BA N G A LO RE SI N G A P O RE M U M BA I B KC NE W DELH I MUNIC H NE W YORK. India 's Law on Prevention of Sexual Harassment at the Workplace February 2018. Copyright 2018 Nishith Desai Associates India 's Law on Prevention of Sexual Harassment at the Workplace India 's Law on Prevention of Sexual Harassment at the Workplace February 2018. Nishith Desai Associates 2018. Provided upon request only Nishith Desai Associates 2018. India 's Law on Prevention of Sexual Harassment at the Workplace Contents 1. INTRODUCTION 01. 2. EVOLUTION OF THE LAW ON WORKPLACE Sexual Harassment 02. I. The Vishaka Judgement 02. II. Post Vishaka Some Other Judgments 03. 3. KEY PROVISIONS OF THE POSH ACT 05. I. Applicability and scope 05. II. What amounts to Sexual Harassment ? 06. III. Employee 07. IV. Workplace 07. V. Complaints committee 08. VI. Complaint mechanism 10. VII. Conciliation 11. VIII. Redressal process/Inquiry 11.

2 IX. Interim Reliefs 12. X. Punishment and compensation 12. XI. Frivolous complaints 12. XIl. Confidentiality 13. XIII. Consequences of non-compliance 13. 4. EMPLOYER'S DUTIES AND OBLIGATIONS 14. 5. EXAMPLES OF CONDUCT AMOUNTING TO Sexual Harassment 16. 6. OTHER LAWS PERTAINING TO WORKPLACE Sexual Harassment 17. I. Industrial Employment (Standing Orders) Act, 1946 17. II. Indian Penal Code, 1860 17. 7. FREQUENTLY ASKED QUESTIONS 19. ANNEXURE I 20. Sexual Harassment of Women at Workplace ( Prevention , Prohibition and Redressal) ACT, 2013 [Act No. 14 of 2013] ANNEXURE II 34. Sexual Harassment of Women at Workplace ( Prevention , Prohibition and Redressal) Rules, 2013 Nishith Desai Associates 2018. Provided upon request only Nishith Desai Associates 2018. India 's Law on Prevention of Sexual Harassment at the Workplace ANNEXURE III 38. Hotline: Court decides not to interfere with decision of Internal Complaints Committee set up by employer ANNEXURE IV 41.

3 Sexual Harassment Committee - Time for a Change! ANNEXURE V 42. Bombay Chartered Accountant Society Publication ANNEXURE VI 45. Sexual Harassment at Workplace: Indian Government Introduces Platform for Female Employees to File Complaints Nishith Desai Associates 2018. Provided upon request only Nishith Desai Associates 2018. India 's Law on Prevention of Sexual Harassment at the Workplace 1. Introduction Long bygone are the days when men used to be The POSH Act has been enacted with the the sole bread-winners of a family. Globalization objective of preventing and protecting women has brought a radical change in the status of against workplace Sexual Harassment and to women worldwide. However, with the larger ensure effective redressal of complaints of influx of women in the mainstream workforce Sexual Harassment . While the statute aims at of India , Sexual Harassment at workplace has providing every woman (irrespective of her assumed greater dimensions.)

4 Age or employment status) a safe, secure and dignified working environment, free from all Workplace Sexual Harassment is a form forms of Harassment , proper implementation of of gender discrimination which violates a the provisions of the statute remains a challenge. woman's fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 Although the law preventing Sexual Harassment of the Constitution of India ( Constitution ). at workplace has been in force since 2013, there Workplace Sexual Harassment not only creates remains lack of clarity on various aspects an insecure and hostile working environment pertaining to the statute, including what for women but also impedes their ability to constitutes Sexual Harassment , obligations deliver in today's competing world. Apart from of an employer, remedies/safeguards available interfering with their performance at work, to the victim, procedure of investigation, etc.

5 It also adversely affects their social and Many are also not fully aware of the criminal economic growth1 and puts them through consequences of Sexual Harassment . Lewd jokes, physical and emotional suffering. inappropriate comments etc. are dismissed as normal, with women being hesitant to India 's first legislation specifically addressing initiate actions due to apprehension of being the issue of workplace Sexual Harassment ; the disbelieved or ridiculed; which underpins Sexual Harassment of Women at Workplace the need for greater awareness and greater ( Prevention , Prohibition and Redressal) Act, enforcement. 2013 ( POSH Act ) was enacted by the Ministry of Women and Child Development, India Any tool would be useless if the person in 2013. The Government also subsequently operating it is unaware of the way it is to be used. notified the rules under the POSH Act titled Therefore, the objective of this booklet is to the Sexual Harassment of Women at Workplace serve as a ready reckoner to all the stakeholders ( Prevention , Prohibition and Redressal) Rules, and re-educate them on the law relating to 2013 ( POSH Rules ).

6 The year 2013 also workplace Sexual Harassment . witnessed the promulgation of the Criminal This booklet focusses mainly on the POSH Act Law (Amendment) Act, 2013 ( Criminal Law and other relevant laws in India pertaining Amendment Act ) which has criminalized to workplace Sexual Harassment . Further, offences such as Sexual Harassment , stalking the objective of this booklet is to create more and voyeurism. awareness on the issue and simultaneously equip employers in providing women a safe and secure working environment. The booklet also discusses the importance of Prevention '. as the best tool for elimination of this menace in a multi-cultural society as ours. 1. Statement of Objects and Reasons, Sexual Harassment of Women at Workplace ( Prevention , Prohibition and Redressal) Act, 2013. Nishith Desai Associates 2018 1. Provided upon request only 2. Evolution of The Law on Workplace Sexual Harassment The elimination of gender-based discrimination women in the country, women's rights activists has been one of the fundamentals of the and lawyers filed a public interest litigation in Constitutional edifice of India .

7 The principle the Supreme Court of India under the banner of gender equality is enshrined in the of Vishaka. Constitution, in its Preamble, fundamental The Supreme Court of India , for the first rights, fundamental duties and Directive time, acknowledged the glaring legislative Principles. However, workplace Sexual inadequacy and acknowledged workplace Harassment in India , was for the very first time Sexual Harassment as a human rights violation. recognized by the Supreme Court of India in In framing the Vishaka Guidelines, the its landmark judgment of Vishaka v. State of Supreme Court of India placed reliance on the Rajasthan2 ( Vishaka Judgment ), wherein Convention on Elimination of All Forms the Supreme Court framed certain guidelines of Discrimination against Women, adopted and issued directions to the Union of India by the General Assembly of the United Nations, to enact an appropriate law for combating in 1979, which India has both signed and workplace Sexual Harassment .

8 Nothing less of ratified. As per the Vishaka Judgment, the an irony, the POSH Act and the POSH Rules was Vishaka Guidelines issued under Article 32. enacted 16 years after the Vishaka Judgement. of the Constitution, until such time a legislative In the absence of a specific law in India , the framework on the subject has been drawn-up Supreme Court, in the Vishaka Judgment, laid and enacted, would have the effect of law down certain guidelines making it mandatory and would have to be mandatorily followed for every employer to provide a mechanism by organizations, both in the private and to redress grievances pertaining to workplace government sector. Sexual Harassment ( Vishaka Guidelines ). As per the Vishaka judgment, Sexual which were being followed by employers until Harassment ' includes such unwelcome sexually the enactment of the POSH Act. determined behavior (whether directly or by implication) as: I.

9 The Vishaka Judgement a. Physical contact and advances In 1992, Bhanwari Devi, a dalit woman b. A demand or request for Sexual favours;. employed with the rural development c. Sexually coloured remarks;. programme of the Government of Rajasthan, was brutally gang raped on account of her d. Showing pornography;. efforts to curb the then prevalent practice of e. A. ny other unwelcome physical, verbal or non- child This incident revealed the verbal conduct of Sexual nature. hazards that working women were exposed to on a day to day basis and highlighted the Where any of these acts are committed in urgency for safeguards to be implemented in circumstances under which the victim of such this regard. Championing the cause of working conduct has a reasonable apprehension that in relation to the victim's employment or work (whether she is drawing salary or honorarium 2. 1997 6 SCC 241: AIR 1997 SC 3011. 3. Indira Jaising, Law Relating to Sexual Harassment at the Workplace (2014).)

10 2 Nishith Desai Associates 2018. India 's Law on Prevention of Sexual Harassment at the Workplace or voluntary service, whether in government, conduct with Sexual overtones, whether directly or public or private enterprise), such conduct can be by implication, particularly when submission to or humiliating and may constitute a health and safety rejection of such conduct by the female employee was problem, it amounts to Sexual Harassment in the capable of being used for affecting the employment of workplace. It is discriminatory, for instance, when the female employee and unreasonably interfering the woman has reasonable grounds to believe that with her work performance and had the effect her objection would disadvantage her in connection of creating an intimidating or hostile work with her employment or work (including recruiting environment for her.. and promotion), or when it creates a hostile working environment.