7 months after its passage, law yet to be implemented

Of late, the very institution of justice came under attack for not being fair and just. This after a young woman lawyer related her experience of sexual harassment which she underwent while interning with a Supreme Court judge.

Just days before this incident, the fourth pillar of our democracy was rocked when a young Tehelka journalist accused her founder-editor (Tarun Tejpal) of rape.

 Both the incidents brought to the fore the issue of sexual harassment at workplace. It would be germane to have a re-look at the legal regime put in place to deal with the issue of sexual harassment at workplace.

 The Sexual Harassment of Women at Workplace (Protection, Prohibition and Redressal) Act of 2013 - there was no law relating to this issue earlier- carries a broad definition of the misdemeanour, including physical contact and advances or demand for sexual favours, making sexually coloured remarks or showing photography or any other unwelcome physical, verbal and non-verbal conduct of sexual nature.

Going a step ahead it also covered worker employed at a dwelling house, unorganised sectors and self-employment projects.  Curiously enough, critics take a potshot at the law for coming to the rescue of the women employee only.

They say sexual harassment at workplace should be gender neutral as the circumstances listed as explicit or implied promise of preferential treatment or threat of detrimental treatment could be faced by any employee.

 The law enjoined that a complaint is to be made in writing to the internal committee having more woman members. This in itself could prove to be a dissuading factor for an aggrieved woman who is illiterate. This anomaly has been sought to be addressed by including a provision that her legal heir could file the complaint.

 What happens in a case if the internal committee so constituted under the Act found prima facie substance in the woman employee’s allegation? A recommendation would be sent to the police within seven days for registration of an FIR under Section 509 (word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code.

 But this could also become a problem area as, at times, the offences, to which the employee was subjected to, may constitute graver charges of rape or outraging woman’s modesty as in the case of Tejpal.

 Notably, if the committee comes to the conclusion that the case is proved, it could recommend to the employer to take action against the accused employee under service rules or deduct a sum determined henceforth to be paid to the complainant.

 Apart from factors like physical or psychiatric treatment, the compensation would depend upon the status of the tormentor.

This again, as it has not been left open for the employer to determine, could lead to manoeuvring, obviously at the cost of the victim’s interests.

 Among other contentious issues, the law stated that the internal committee may also recommend action against the woman if it is found that her complaint was malicious.

Justice J S Verma panel, formed after the December 16 Delhi gangrape case, has condemned Section 14 of the draft bill which proposed to penalise a woman for making a false complaint, by calling it a “completely abusive provision” and demanded its deletion.

 The recommendation of the internal committee could also be challenged in an appropriate court. If any employer fails to form the panel, he shall be liable to pay fine up to Rs 50,000.

Describing the law as “unsatisfactory”, the panel pointed out, “Regrettably, nothwithstanding the directions of the Supreme Court in Vishakha case, there is no empirical evidence to suggest that the conditions of working women have distinctly improved in the recent past.”

 The Act stipulated that on receipt of a sexual harassment complaint, conciliation must be attempted between the complainant and respondent (accused).

 “This is in violation of the mandate prescribed by the Supreme Court in Vishakha case, which was a direction to the state ‘to ensure a safe workplace/educational institution for women’.

 The Verma committee proposed an `Employment Tribunal’ comprising two retired judges –one necessarily a woman –two eminent sociologists and one social activist instead of having internal complaints committee to adjudicate all complaints was proposed by the panel. The suggestion could have been incorporated to imbibe more confidence of the women folk.

 Further, a provision in the statute to grant leave to the woman complainant without taking her wish into account seemed contrary to the ends sought to be achieved by the legislation.

 Notably, the rules framed under the law (passed by Parliament last April) for its implementation, are still to be notified. The Women and Child Development Ministry is learnt to have finalised the draft, which, sources say, is lying with the Law Ministry.