Sexual
harassment includes such unwelcome sexually determined behaviour (whether
directly or by implication) as:
(a) physical contact and advances
(b) a demand or request for sexual favours
(c) sexually coloured remarks
(d) showing pornography
(e) any other unwelcome physical, verbal or non-verbal
conduct of sexual nature.
Where any of these acts is committed in circumstances where
under the victim of such conduct has a reasonable apprehension that in relation
to the victim's employment or work whether she is drawing salary, or honorarium
or voluntary, whether in government, public or private enterprise such conduct
can be humiliating and may constitute a health and safety problem it amounts to
sexual harassment.
It is discriminatory for instance when the woman has
reasonable grounds to believe that her objection would disadvantage her in
connection with her employment or work including recruiting or promotion or
when it creates a hostile work environment. Adverse consequences might be
visited if the victim does not consent to the conduct in question or raises any
objection thereto.
Steps to be taken by the employers
All Employers or persons in charge of work place whether in
public or private sector should take appropriate steps to prevent sexual
harassment. Without prejudice to the generality of this obligation they should
take the following steps:
(a) Express prohibition of sexual harassment as defined,
above at the work place should be notified, published and circulated in
appropriate ways.
(b) The Rules/Regulations of Government and Public Sector
bodies relating to conduct and discipline should include rules / regulations
prohibiting sexual harassment and provide for appropriate penalties in such
rules against the offender.
(c) As regards private employers steps should be taken to
include the aforesaid prohibitions in the standing orders under the Industrial
Employment (Standing Orders) Act, 1940.
(d) Appropriate work conditions should be provided in
respect of work, leisure, health and hygiene to further ensure that there is no
hostile environment towards women at work places and no employee woman should
have reasonable grounds to believe that she is disadvantaged in connection with
her employment.
Criminal proceedings / disciplinary action
Where such conduct amounts to a specific offence under the
Indian Penal Code or under any other law, the employer shall initiate
appropriate action in accordance with law by making a complaint with the
appropriate authority.
In particular, it should ensure that victims, or witnesses
are not victimized or discriminated against while dealing with complaints of
sexual harassment. The victims of sexual harassment should have the option to
seek transfer of the perpetrator or their own transfer.
Where such conduct amounts to misconduct in employment as
defined by the relevant service rules, appropriate disciplinary action should
be initiated by the employer in accordance with those rules.
· Whether or not such conduct constitutes an offence under
law or a breach of the service rules, an appropriate complaint mechanism should
be created in the employer's organization for redress of the complaint made by
the victim. Such complaint mechanism should ensure time bound treatment of
complaints.
· The complaint mechanism, referred above, should be
adequate to provide, where necessary, a Complaints Committee, a special
counsellor or other support services, including the maintenance of
confidentiality.
· The Complaints Committee should be headed by a woman and
not less than half of its member should be a woman. Further, to prevent the
possibility of any undue pressure or influence from senior levels, such
Complaints Committee should involve a third party, either NGO or other body who
is familiar with the issue of sexual harassment.
· The employers and
person in charge will also report on the compliance with the aforesaid
guidelines including on the reports of the Complaints Committee to the
Government department.
Conducting enquiry by the complaints committee
Any person aggrieved shall prefer a complaint before the
Complaints Committee at the earliest point of time and in any case within 15
days from the date of occurrence of the alleged incident.
The complaint shall contain all the material and relevant
details concerning the alleged sexual harassment including the names of the
contravener and the complaint shall be addressed to the Complaints Committee.
If the complainant feels that she cannot disclose her
identity for any particular reason the complainant shall address the complaint
to the head of the organisation and hand over the same in person or in a sealed
cover.
Upon receipt of such complaint the head of the organisation
shall retain the original complaint with him and send to the Complaints
Committee a gist of the complaint containing all material and relevant details
other than the name of the complainant and other details, which might disclose
the identity of the complainant.
The Complaints Committee shall take immediate necessary
action to cause an inquiry to be made discreetly or hold an inquiry, if
necessary. The Complaints Committee shall after examination of the complaint
submit its recommendations to the head of the organisation recommending the
penalty to be imposed.The head of the organisation, upon receipt of the report
from the Complaints Committee shall after giving an opportunity of being heard
to the person complained against submit the case with the Committee's
recommendations to the management.The Management of the Organisation shall
confirm with or without modification the penalty recommended after duly
following the prescribed procedure. Where the conduct of an employee amounts to
misconduct in employment as defined in the relevant service rules the employer
should initiate appropriate disciplinary action in accordance with the relevant
rules.
Laws under which a case can be filed
Section 209, IPC deals with obscene acts and songs and lays
down:
Whoever, to the annoyance of others:
a) does any obscene act in any public place or
b) sings, recites or utters any obscene song, ballad or
words in or near any public place, shall be punished with imprisonment of
either description for a term, which may extend to 3 months or with fine or
both. (Cognizable, bailable and triable offences).
-Section 354, IPC deals with assault or criminal force to a
woman with the intent to outrage her modesty and lays down that:
Whoever assaults or uses criminal force to any woman,
intending to outrage or knowing it to be likely that he will thereby outrage
her modesty, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine or both.
-Section 509, IPC deals with word, gesture or act intended
to insult the modesty of a woman and lays down that:
Whoever intending to insult the modesty of any woman utters
any word, makes any sound or gesture, or exhibits any object intending that
such word or sound shall be heard, or that such gesture or object shall be seen
by such woman, or intrudes upon the privacy of such woman, shall be punished
with simple imprisonment for a term which may extend to one year, or with fine,
or both. (Cognizable and bailable offences).
-Civil suit can be filed for damages under tort laws. That
is, the basis for filing the case would be mental anguish, physical harassment,
loss of income and employment caused by the sexual harassment.
