Although the concept of equal opportunity employer is still a long way off in India, some headway in this direction will be made when Parliament votes into law a new Bill on sexual harassment in the workplace likely to be tabled during the current session of the House.
The “Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Bill, 2006”:http://ncw.nic.in/sexualharassmentatworkplacebill2005.pdf, is a follow-up on what has come be to be known as the “Vishakha Guidelines”:http://www.infochangeindia.org/analysis100.jsp issued by the Supreme Court on August 13, 1997 in an order on the Vishakha vs State of Rajasthan case.
While the Vishakha Guidelines had made it mandatory for employers to set up a complaints committee to not only address complaints but also undertake preventive measures, despite a decade down the line, very few employers have bothered to implement this directive.
To start with, the new Bill seeks to change all this by stipulating punishment for non-compliance. The Bill, once passed, will go a long way in plugging the loopholes in the Vishakha Guidelines.
The Bill recognises the fundamental right of a woman to gender equality under Article 14 of the Constitution of India and the right to life and live with dignity under Article 21 of the Constitution which includes a right to a safe environment free from sexual harassment. It also flows from the international “Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)”:http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm, ratified by the Government of India, which recognizes the right to protection from sexual harassment and the right to work with dignity as universal human rights.
Once the Bill becomes law it will lay down a uniform procedure for conducting enquiries into complaints of sexual harassment across a very wide range of employers including the government, armed forces, private organized sector as well as the unorganized sector such as agriculture, domestic work, construction work and the service industry.
Social activists and critiques of the Bill, however, point out that the Bill fails to cover two very important areas â€“ (a) it is not gender neutral and, therefore, does not cover sexual harassment of men by women (for example, US laws do so) and (b) it fails to cover third party service-takers, for example students or patients who may face sexual harassment in an educational institute or a health care centre from their teachers or physicians respectively. Also, there is a fear that the examples of sexual harassment mentioned in the Bill may lead to restrictive application of the Bill as the Bill does not explicitly state that these are examples only and there could be various other types of incidents that may fall under the rubric sexual harassment.
The provisions of the Bill stipulate inter alia:
“*”employers have to set up an internal complaints committee â€“ headed by a woman â€“ for three year terms,
“*”employers have to complete an enquiry within 90 days from receiving any complaint,
“*”if the enquiry confirms sexual harassment then employers have to take action against the accused within three months, and
“*”imposition of a minimum fine of Rs 10,000 on employers if they do not have a complaints committee or if they do not take action on the complaint within the stipulated time.
According to the Bill, the district magistrate will be entrusted with ensuring that all organized sector companies within his/her jurisdiction set up internal complaints committees chaired by a senior woman employee. The committee will be required to have at least three other members, apart from the chairperson, all preferably women and with experience of social work while at least one member will have to be from a non-governmental organization working on womenâ€™s rights. In any case, at least 50% of the committee members will have to be women.
Although the initial draft of the Bill was ready as early as 2004, it has taken three years to iron out flaws in the original draft, plug loopholes and include provisions that would ensure that all women, including those who feel they are being professionally victimized for not agreeing to grant sexual favours would be treated at par with victims of direct harassment. The Bill also seeks to protect a complainant and witnesses against victimization by providing that the service conditions of such persons cannot be changed while the complaint is pending. It also provides for confidentiality, compensation for complainant and also protection against delays in filing a complaint as it stipulates that such delays would not work against the veracity of complaints.
Once the new law comes into effect employers will do well to not only comply with the provisions of the law such as setting up an internal complaints committee but also take precautionary steps to ensure that incidents of sexual harassment do not happen at all, to the extent possible. For this, a good first step is to ensure that prohibitory orders are circulated widely among employees so that everyone knows about the law and the punitive measures that would follow once a case of harassment is confirmed. A related issue is that of dress and behaviour codes to be followed in the workplace and employers will do well to lay down certain stipulations regarding what to wear to office, how to behave with women colleagues, what constitutes sexual harassment at the workplace as per law etc. and circulate these guidelines widely within the organization.
After all prevention is always better than cure!