India’s new “Sexual Harassment at Workplace” law

The Protection of Women Against Sexual Harassment at Work Place Bill (“Act”) has been passed in the Rajya Sabha (Upper House of the Parliament of India) recently and has become law. This Act deals with protecting women from harassment in the workplace and providing a safe environment.

Let us now analyze the provisions of the Act in detail –

1. This Act is not gender neutral as only women can file a complaint. No man can file a sexual harassment complaint. Are men not harassed sexually? Do refer to the links here, here, here and here.
2. As per section 2(o), the definition of “workplace” includes any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey. Therefore as per this definition even areas outside the control of the employer such as office of clients, taxis, hotels etc… become a workplace. Therefore, during an official tour the place of stay (ie hotel), travel mode (ie. taxi) and office of customers / clients are all included as workplace and the employer is liable if any incident happens with the woman employee . Quite a strange provision as the employer is not responsible and in control of any of these places.
3. Section 3 defines sexual harassment containing clauses such as ‘implied or explicit threat about her present or future employment status’ and ‘interferes with her work or creating an intimidating or offensive or hostile work environment for her’. Therefore bringing out quality issues with the woman’s work or providing / enforcing deadlines may be construed as threatening her future employment status or creating an offensive work environment.
4. A committee needs to be formed which will look at all sexual harassment cases. The committee needs to have “A woman Presiding officer committed to the cause of women[i]” and minimum 2 other employees “committed to the cause of women”. What does it mean by “committed to the cause of women”. Further, a member has to be from a women NGO and a majority of the members of the committee must be women. By defining the constitution of the committee in such a way, at the very first step itself bias has been introduced. Having a committee which is specifically formed to promote women specific-causes is coloured. How do we expect justice to be served by such a committee?
5. Section 10 discusses the complaint handling provisions. First, a settlement with the offender would be tried to be achieved. A question: if the woman was sexually harassed, why does she need to reconcile with the offender? This is a point to ponder.
6. Section 11 states that the committees shall have the same powers as vested in a civil court. A point to be noted here is that none of the members of the committee are required to have legal knowledge or be legal professionals. Providing powers of a court to persons having no legal knowledge is strange.
7. As per section 12, during the pendency of the complaint the aggrieved woman may request for –
   • transfer to another workplace
   • a paid leave, further, this leave is over and above the ‘Privilege Leave’ grated by the organization. On the face of it, the provisions seem logical, but there are no misuse clauses mentioned in the Act, which will be discussed further.

   Therefore, without a misuse clause this provision is unjust on the employer as the organization may need to give paid leave if a complaint is made.

8. As per section 13, in case sexual harassment is proved any one of the following provisions may apply –
   • Organization may take action for sexual harassment as per the service rules
   • Deduct a compensation from the salary of the accused employee and the compensation may be recovered as land revenue from the accused employee.

   Quite a strange way to penalize sexual misconduct by providing “Compensation” to the alleged victim… It does not gel well with my senses.

9. Section 14 states that in case of false complaints (which are backed by forged documents submitted by the complainant or a malicious intent, which needs to be proved) an action will be taken as per the service rules of the organization. Further, it states, if the complaint cannot be substantiated, it will not attract any action. This is an unfair provision as only such false cases which are coupled with forged documents or proving malicious intent attracts penalties. With just one complaint the whole life of the man is ruined, the woman gets immediate relief as mentioned in paragraph 6 above but no particular penalty is prescribed for false complaints. Non-proving of complaint may imply that a frivolous compliant was filed. How is this provision ‘Just and Fair’?
10. Section 15 determines the level of compensation to be paid to the woman which depends on –
    • The mental trauma, pain, suffering and emotional distress caused to her
    • The loss in the career opportunity due to the incident of sexual harassment
    • Medical expenses incurred by the victim for physical or psychiatric treatment
    • The income and financial status of the respondent (Respondent is the person who supposedly commits the harassment)
    • Feasibility of such payment in lump sum or in installments

    The  fourth point above means that if the harasser is a wealthy person, then the compensation level will be higher… In other words, compensation level is determined by the income level of the accused. Something does not seem right, does it give an incentive to a accuse wealthy / senior level employees?

11. As per section 16, the complaints handled by this Act is specifically kept outside the purview of Right to Information (RTI) Act. Therefore, details of false / fabricated cases will not be available. Further, even in case of false complaints, the identity of the woman will be not be disclosed but the man is open to media trials and his information may be made public. Further, in case of genuine cases, the details may be made public provided the identity of the woman is protected.

There are many issues here, keeping it out of the purview of the RTI Act will not provide information on the misuse of this Act. Further, only successful cases will be reported thus proving a 100% success rate. The identity of women, even in false cases, is kept confidential. As there are no penalties for false cases (we have discussed this is paragraph 8 above) and identity is protected, there is no disincentive to file a false cases. Just an accusation by the woman will destroy a man’s life with no consequences whatsoever for fabricated complaints.