Let us make India Women Friendly Country
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Sexual harrassment is very rampant and has become a way of life as per the survey conducted by Indian National Bar Association. INBA has done extensive research to find out the reasons why there is no effective compliance. Let us make India a women friendly country for the sake of our own family. (https://www.indianbarassociation.org/
INBA suggest the following amendment in Laws:
There is no uniform procedure in all states where the employers are to file the annual report containing the Name of the ICC committee members, number of complaint received, the procedure followed etc. The Act must provide a uniform procedure for compulsary filing the annual reports on the website such as Registrar of Companies where it can be accessed by the public/ employees and Government. The Act must also fix the responsibility of CEO/ Board of Directors for non filing and other non compliance of the Act with certain consequences.
1. Ambiguities pertaining to the definitions
The said definition, under the “unorganized sector” is not exempted from the ambit of the proposed legislation. Thus, as suggested by the Justice Verma Committee Report, the proposed legislation should also cover women in the armed forces and police, government institutions, all public bodies, all panchayats, all establishments covered under the Factories Act, 1948 and the Industrial Disputes Act, 1947 and all employers in the private sector, armed forces, police, agricultural workers and women students/ staff of all schools and educational institutions.
The definition of “Respondent”as given under Sexual Harassment at Workplace (Prevention, Prohibition & Redresseal) Act, 2013 uses the word “person”. The legislation is silent as to whether this “person” or perpetrator can be a woman or a transgender as well.
2. Issues regarding Complaints:
With regard to Section 26 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition bad Redressal) Act, 2013 there arises a doubt as to whom complaint is made about the employer’s failure to constitute an Internal Complaints Committee as per the requirements of the act under this section.
The act is silent upon who is to shoulder the responsibility if the committee is not constituted within an organization. Who has to initiate action against the non constitution of the committee? Hence, the need of a more defined structure is felt wherefore the responsibility of keeping a check on the constitution of such a committee is fixed.
The act also fails to cover the women who were employees of the institution at the time of harassment but were terminated due to one or the other reasons before they got a chance or an opportunity to file a complaint.
Often there have been cases where people have been falsely Hence, we propose that there should be a mechanism for identifying false complaints and ensuring that such instances do not arise in the future.
Training and criteria for appointment of the committee member.
3. Prevention of misuse of the Act:
Instances of people filing false complaints have become common these days. Sometimes, a situation arises wherein people because of sharing a sour relationship with their colleagues files a sexual harassment case which might seem like a person’s way of seeking revenge. Thus, it is suggested that there should be a mechanism laid down for identifying false complaints. The misuse of the act must be prevented and those making false complaints too should be penalized.
4. Internal Complaints Committee :Problems
The act requires the establishment of an Internal Complaints Committee in all administrative units or offices for each workplace. The committee requires four members out of which three should be employees and one should be a non – employee. Half of the members of the committee are supposed to be women and it is also required for it to be headed be a senior level woman employee belonging to that workplace.
But what has not been taken into consideration is the fact that a particular organization may not have a senior level woman employee to head such a committee. Not only this, but it may not have the required number of women employees to constitute this committee. There is also no provision laying down the credibility and expertise of the members who would constitute the committee. The training and capacity building of these members has not been spoken about either.
Another problem in the formation of the Internal Complaints Committee is that an establishment with different branches, offices or departments requires the formation of an ICC at each branch, office or department. This is a very unrealistic suggestion as a high level establishment might have hundreds of offices spread across the country. It would not be possible to form such a committee at every level.
Budgetary allocations for the committee must also be specified in the Act. What resources should be put into the constitution of this committee, where the committee would be funded from, how this money would be utilized etc. should be considered. We would also like to suggest that the role of ICC under criminal investigations must be specified as to whether a civil and criminal trial can go on simultaneously.
Section 11(ii) of the act that enables the internal complaints committee to be given powers of a civil court for summoning discovery and production of documents whereas the composition is without any legal background and no requirement of trainings thereafter is there in the provisions.
It is also worth noting that the procedure of enquiry and complaints committee procedure is very cumbersome regarding the documents and paperwork.
5. Confidentiality of the case
The act talks about a provision under which 6 copies of the case inclusive of the name of the victim and the witnesses are to be made. The same in most cases, jeopardizes the case, as the victim and the witnesses are threatened by the defendant, etc. Thus, we suggest that adequate changes must be made and the confidentiality of the case should be ensured.
As highlighted in Tarun Tejpal citation regarding the difficulty in identifying the head in the Media House and stressed that there has to be onus on the respondent also regarding the maintaining of the confidentiality and the ambiguity about what sections need to be published.
6. Section 19(g) and 19(h) of the Act
There is a lot of ambiguity and confusion regarding the sections 19(g) and 19(h) mentioned in the act. Therefore, the clarity of these acts is something that needs to be worked upon.
7. The nature of the workplace
It may be noticed that the law is very general and is not sensitive to different natures of the workplaces. The agricultural sector and residential areas for domestic helps are not sensitive to LCC and its proceedings.
The Act is vague and silent upon the issue that whether educational institutions form a ‘workplace’. There are a few higher education institutions that have a working Sexual Harassment Committee in place and would prefer to continue with the system they have established and is successfully working, particularly as the Act limits who may be members on the Committee (and appears to exclude students).
8. Absence of Internal Committee
There is no internal committee to look into the ICC at the state level and LCC. Provisions for the creation of the same must be incorporated and mentioned in the act.
The committee should also be advertised on a large scale.
9. Time Frame
Section 9(1) stating the limitation of three months for the complaint to be made might be difficult in some cases. Section 9 provides that the period of 3 months can be extended by another 3 months at the discretion of the Complaints Committee.
Address the aspect of victimization
It is a common feature in most sexual harassment cases that the employer or the person against whom a complaint is filed retaliates against the complainant through counter-complaints, dismissing the services of complainant, creating a hostile work environment etc. There is no provision in the Act or the Rules which deals with this aspect, making it a tough call for women to approach the mechanism under the Act.
The Act is biased against urban-office conditions
It does not provide the same civil remedy to domestic workers as it does to other women. Complaints from domestic workers have to be mandatorily forwarded to the Police Station, regardless of whether they want to use the criminal justice system or not. The civil remedy of compensation etc. is absent in their case.
2. The onus of implementation of the Act is on the Employers, whereas the state should also hold some responsibility for its enforcement?
The Act places main responsibility on the employer for implementation and leaves the State largely out of the purview of responsibility. There is no set-time frame for the ICC’s etc to be notified and no punishment for government officials for failing to do so. The role of the state especially the state government is negligible in terms of ensuring the enforceability of the Act.
3. Does not deal with sexual harassment faced by males
This act has completely ignored the sexual harassment faced by the males in their work place. Sexual harassment faced by males often goes unnoticed. This happens more because of the social ridicule that men would face if they would report any case of sexual harassment being faced by them especially in a patriarchal country like ours. Thus, they instead choose to suffer in silence and very often there are no reports of cases of sexual harassment faced by men at workplace. For this purpose, the head of the Internal complaints Committee should not be gender specific for the males too could be subjected to sexual harassment at workplace.
Judging from the findings of a recent INBA and Economic Times-Synovate survey, the men need to be incorporated in the bill as soon as possible. Of the 527 people queried across seven cities – Bangalore, Chennai, Delhi, Hyderabad, Kolkata, Mumbai and Pune – 19% said they have faced some kind of sexual harassment at office. In Bangalore, 51% of the respondents had been sexually harassed, while in Delhi and Hyderabad, 31% and 28% of those surveyed said they had been sexually harassed. Around 38% of the respondents across 7 cities in India said that in today’s workplaces, “men are as vulnerable to sexual harassment as women.”
4. Inclusion of a non employee in the constitution of the ICC
The act requires a person “amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment”. However employers prefer to appoint the outside person who is more incline to do favour to the company. Even the Independent member may not aware of the law and procedure..
The need of the hour is awareness generation regarding various aspects of the act. This can be done through various ways.
A series of online courses for awareness generation of the Act for basic level of awareness in a form of a module should be created.
Home Ministry should play a bigger role like advertising and taking measures to sensitize the youth.
The employers must be assigned a duty to devise a sexual harassment policy and that should be prominently displayed within the premises with complete details on the procedure for making a complaint.
There is vagueness pertaining to the definition of what exactly constitutes sexual harassment. It might be a very subjective experience for each woman. Hence, women might often be unaware about the citation of difference between physical and sexual harassment. Hence, a clarity pertaining to the same must be incorporated.
6. Other Recommendations
The high power vigilance and monitoring committee shall meet at least twice in a calendar year, in the month of January and July to review the implementation of the provisions of the Act and other matters connected therewith, prosecution of cases under the Act, role of different officers/agencies responsible for implementing the provisions of the Act.
Section 10(1) of the Act regarding the conciliation is contrary to the nature and spirit of the Vishakha Guidelines.
Due to lack of witness protection, witnesses are not willing to come forward to support the women concerned. Thus, we suggest a protection mechanism to be incorporated within the act.
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