Opinion: State tested for its ability to protect women at workplaces

Women have been subjected to sexual harassment at workplace since the day they stepped out to work. But there has been no special law to protect women at workplace before 1997. In 1992, a grassroots worker named Bhanwari Devi employed as part of the Women’s Development Project run by the Government of Rajasthan was gang raped by high caste men as punishment for opposing a child marriage in her village. 

The Sessions Court acquitted the accused men and thereafter she fought against such acquittal in the higher courts. At this juncture, a Writ Petition was filed in the Supreme Court for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India by Visakha and others. The Supreme Bench consisting of then Chief Justice JS Verma, Justices Sujatha V Manohar and BN Kirpal gave a land mark judgment, popularly known as Visakha judgment. 

In the opening comments itself the bench states that, “With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations; and the resentment towards incidents of sexual harassment is also increasing. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focusing 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 work places through judicial process, to fill the vacuum in existing legislation.” Knowing fully well that the legislature would take its sweet time to pass appropriate laws to protect working women at their workplaces the Bench gave a set of guidelines drawing principles from International and Domestic Laws as envisaged by our Constitution which came to be called Visakha Guidelines. 

The Supreme Court says that, “Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advance, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided.”

The most important recommendation by the Supreme Court was to form Complaints Committee. It should be headed by a woman and not less than half of its member should bewomen. Further, to prevent any pressure or influence from senior levels, the Committee should involve a third party, either NGO or other body who is familiar with the issue ofsexual harassment. This Committee came to be popularly called Visakha Committee. 

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (hereafter referred to as the SHW Act) came to be passed in 2013 in consonance with the Visakha judgment. Under SHW Act, every organisation that employs women have to mandatorily constitute an Internal Complaints Committee (ICC). The Presiding officer of the ICC shall be a Senior Level Woman Employee; not less than two other employees, preferably committed to the cause of women or experience in social work or have legal knowledge. There shall also be another external member selected from NGOs or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. For those women employed in unorganised sector, the District Authorities such as District Magistrate/Collector/Deputy Collector are mandated to constitute Local Complaints Committee (LCC) with eminent members drawn from the Block or Tehsil etc. 

The SHW Act speaks of giving wide publicity, sensitisation and empowerment of working women to prevent/prohibit sexual harassment at workplace. Yet if there is any sexual harassment committed the aggrieved woman is at liberty to prefer a complaint to the ICC/LCC as the case may be. The Committee shall first endeavour to see if there is any settlement of the issues but not any monetary settlement between the aggrieved and the respondent. If it is not settled, then it is the duty of the Committee to inquire into the complaint after giving opportunity to both parties and make recommendations against the respondent for the organisation to take necessary actions as suggested by it.

During the inquiry the aggrieved woman could be given leave with pay, be ensured safety at the workplace for which the respondent could be transferred to another department etc. and ensure that she is comfortable to depose with confidence. On receiving the report of the ICC/LCC the employer organisation/district officer has the duty to follow the recommendations and execute the same. Apart from the such inquiry and departmental action the Committee or even the aggrieved woman can prefer a police complaint against the respondent and initiate criminal prosecution and secure punishment from a court of law. The inquiry should be completed within 90 days. The report of the findings of ICC/LCC have to be sent to the employer/district officer within 10 days of completion of the inquiry. The employer/district officer has to take action as per the report within 60 days. 

The SHW Act is in addition to the general penal law. Therefore, whenever an offence of cognisable nature is preferred it becomes the duty of the ICC/LCC to also prefer a police compliant. The aggrieved woman can also independently prefer a complaint of sexual harassment at workplace to the police. The police have to register the complaint under relevant provisions of Indian Penal Code for outraging the modesty of woman, intimidation, assault etc. depending on the offences committed. 

In the latest case of sexual harassment at workplace woman Superintendent of Police has preferred a complaint against her boss who is an Inspector General of Police.  It takes a lot of courage for a woman employee of the uniformed services to prefer a sexual harassment complaint against her boss. The complaint according to the news media has been referred to an ICC headed by Seema Agarwal, serving woman ADGP, Arunachalam, serving IG, Ramesh, administrative officer in DGP office and Saraswathi, a retired DSP, who is shown as an external member. It is commonsense that justice must not merely be done but seem to be done. Though we have nothing personal against Saraswathi, she could be seen only as an insider and not an NGO or activist as contemplated by SHW Act. Ramesh is also seen as too lower in rank in a case dealing with two serving officers of much higher rank. The complaint also seems to accuse the IG of committing cognisable offences. Therefore, it was necessary that the police department on coming to know of such offence being committed ought to have registered a FIR under appropriate provisions of law and at the least transferred the IG from his post to some other department. Instead it the aggrieved woman officer who has been shunted out to another department. 

In an atmosphere of rampant sexual harassment at workplaces going without complaints due to fear of naming and shaming etc., it takes immense courage for an aggrieved woman to prefer a complaint. The instant case will be seen as a test case by many victims to gather courage and embolden themselves to boldly prefer complaints and fight for justice.  It has become a case of public interest where the State is tested for its fairness and its commitment to protect women at workplaces. Hence it is necessary that the respondent IG be transferred and shifted out of the DVAC department, FIR be registered and criminal prosecution be initiated in right earnest apart from re-constituting the ICC with a committed NGO member and a member from higher ranks with experience in women’s issues or legal knowledge as the SHW Act mandates. Suffice it to state that Ceaser’s wife must be above suspicion – here the State is the Ceaser’s wife. Hope it guards the rights of the aggrieved woman officer, secures justice for her and instills confidence in the minds of women victims of sexual harassment at work places all over Tamil Nadu.