Will the anti-sexual harassment Act be truly effective?

Lubna Kably
27 December 2013, 05:22 PM IST

It was a long wait, even as the President's assent was given on April 22, 2013, 'The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013' – for sake of brevity lets refer to it as the 'Anti-sexual harassment Act', did not come into force immediately. It appears that finalisation of rules, kept this Act on hold. Finally, it is now in effect from December 9, 2013.

Zenobia Aunty, has been interacting with a lot of legal experts on this Act and its rules. Like many others, she thought it was a case of better late than never. After all, not many companies had adopted the tenet set by the Supreme Court in the landmark Vishaka's case.

In 1997, the Supreme Court of India recognised the problem of sexual harassment at the workplace and while delivering its judgement in Vishaka's case laid down guidelines that employer organisations have to follow. Employers were required to: prohibit sexual harassment (which was widely defined) and include such prohibition in the employees' rules of conduct; set up a complaint committee with majority of women members and headed preferably by a woman which would investigate all complaints of sexual harassment; and initiate disciplinary proceedings and possible criminal action against any offenders.

This was a temporary measure till a well defined Act was in place. Well, we now have such an Act. The moot issue however is: How effective will it be?

According to many legal eagles, the Act and also the Rules suffer from certain infirmities. Let us start with the complaint committees – after all this is the first step – receiving a complaint and dealing with it fairly.

Section 4 of the Anti-sexual harassment Act, requires that the internal committee shall comprise of a presiding officer who shall be a senior woman employee at that particular office – if such employee is not available then she can be drawn from offices in other location. The lnternal Complaints committee is also required to have not less than two members from among employees (preferably committed to the cause of women or who have had experience in social work or have legal knowledge), one external member from an NGO or association dealing with women causes or a person familiar with issues relating to sexual harassment. At least half of the composition of this committee is required to be women.

If the internal complaints committee is not set up at a particular office – because it has less than 10 employees at that particular location or if the complaint is against the employer itself then the district officer sets up a 'local complaints committee'.

Here creep in major differences as regards the composition of the two committees. The 'local complaints committee' set up at the behest of the district officer comprises of a chairperson nominated from among emient women in the field of social work and committed to the 'cause of women'; a woman member nominated from the block, talkuka, tehsil, ward or municipality; two members (at least one of which shall be a woman) nominate from such NGOs committed to the cause of women or a person familiar with the issues relating to sexual harassment – provided that at least one of such nominees should preferably have a background in law or legal knowledge. Now hold your breath, it is also provided that at least one of the nominees shall be a woman belonging to a scheduled caste, scheduled tribe, OBC or minority community notified by Central Government from time to time.

Shwetasree Majumdar, co-founder of Fidus Law Chambers, is aghast with the politicisation of the local complaints committee – "Reservations on the ground of SC, ST etc are eminently avoidable," she says.

Further, if one takes a closer look, the Act does not make it mandatory for any member of an internal complaint committee to have legal knowledge. Nor does it make it mandatory for the company to provide legal knowledge to the committee members – this is a huge drawback and will result in inefficiencies. Whereas, a local complaints committee which is appointed by the district officer, under certain circumstances if required preferably to have at least one member having a background in law or legal knowledge, points out Majumdar.

When it comes to the actual complaint, there are some aspects that Times Crest had pointed out earlier (soon after the Act was passed by the Lok Sabha). For instance, The Act provides that action can be taken against a woman who has made a false or malicious complaint. As a saving grace, the Bill adds that a mere inability to substantiate a complaint or provide adequate proof 'need not' attract such action.

Senior Advocate, Anand Grover had said: "This provision could have a dampening effect. The provisions should be further strengthened – for instance, the onus of proof could be on the alleged offender who wants to prove his innocence or there could be certain scenarios in which it shall be presumed that the complaint is genuine. The alleged offender should also have the opportunity to rebut. Also perhaps it would have been better for another act, such as the Indian Penal Code, to deal with a malicious complaint, instead of making it part and parcel of the proposed anti-sexual harassment Act."

The Rules suffer from a major draw back, that of the victim's consent to proceed with the complaint. "The wording is such that sub-rules (a) to (c) of Rule 6(i) are not fettered by consent. So if a complainant is physically incapacitated (which again is a term lacking clarity), a complaint may be filed on her behalf by a friend, relative or a member of the National Commission for Women or State Women's Commission without seeking her consent," points out Majumdar.

"Why? The consent issue is a larger issue and it is my opinion that a complainant's consent is an integral part of the manner in which the issue should be dealt with – delicate handling is a must or else her continuance in the job will be compromised in each instance (especially since there is no actionable requirement that the employer ensure that the resultant work environment post-complaint is not hostile to the complainant)," stressed Majumdar.

The ambit of the Act and Rules are wide, but alas not wide enough. Harassment by peers and bosses in places such as at a party, at a movie etc may be difficult to get redressal, as the Act covers any place visited by the employee arising out of or during the course of employment.

"Detailed obligations have been cast upon the employer for conducting workshops and creating awareness. Smaller organisations may find it prohibitive, leading to non-compliance," says Vikram Shroff, HR leader, at international legal counselors Nishith Desai Associates. Or for that matter, as almost everyone Zenobia Aunty spoke to pointed out, it is rather impractical to have internal complaints committee at every location, with locations linked by technology, perhaps a centralized committee based at the head-office level which could as required visit the various offices across India of an organization as and when needed would be more practical.

In most other countries, such as the UK or US, the employer organisation can be, under certain circumstances, held vicariously liable for sexual harassment by an employee. Suits filed can even be upwards of a million dollars. However, companies in India will not have to bear any such liability. A mere fine of Rs. 50,000 is the maximum penalty for non-compliance with the provisions of the Act or rules.

Yet, Zenobia Aunty is glad that a start has been made. It is just societal pressure that will ensure that companies follow the Act and Rules not just in letter but also in spirit. Hopefully the lacuna will be ironed out via suitable amendments in due course.