Stand up for your rights

Protection of Women against Sexual Harassment at Workplace

Posted on: January 20, 2011


Sub: – Strongest protest against

“Protection of Women against Sexual Harassment at Workplace Bill 2010” for DENYING MEN its protection

This memorandum is in response to the invitation for suggestions for the bill titled “Protection of Women against Sexual Harassment at Workplace Bill 2010”.

This bill points out that Sexual Harassment results in violation of the fundamental rights of equality under articles 14 and 15 of the Constitution of India and right to life and to live with dignity under article 21 of the Constitution and right to practice any profession which includes a right to a safe environment free from sexual harassment. However it only counts the violation of fundamental rights of women and categorically ignored the violation of fundamental rights of men who constitute the other half of the population, at the sole discretion of Women and Child Ministry under the pressure of a miniscule number of feminist and sexist people. When the world over, “Sexual Harassment at Workplace” is considered as a gender neutral offence, India, on the contrary, is setting a horrendously bad and absolutely backward attitude of DENYING legal protection for the current and future generations of men for no apparent reason whatsoever.

Sexual Harassment at Workplace is a very serious issue and we fail to understand why the present draft of the bill, completely misses out the important aspect that Sexual Harassment of Men results in same amount of violation of all those rights mentioned above. We also humbly lodge our strongest protest against changing the very name of the draft bill itself, from the original gender neutral “Prevention of Sexual Harassment at Workplace Bill” to the present biased one, without any justification, reasoning or logic.

Apparently, the present draft of the bill openly violates Article 15 of the Constitution which prohibits discrimination on grounds of gender. Article 15(3) of the Constitution does allow the government to make special provisions for women, but the same article cannot be used to overlook the fact that women too can be perpetrators of the crime and absolve women from getting prosecuted for committing the same offence. In order words Article 15(3) does not allow women to be exempted for punishment for committing the same act which, when a man does, is a crime. Moreover, our Constitution nowhere mentions that special provisions for women will be achieved at the cost of deliberate discrimination against men on the grounds of gender, which is the essence of the Main Article 15 of the Constitution.

The Universal Declaration of Human Rights states that “all are equal before the law, and are entitled without any discrimination to equal protection of the law”. Article 14 of the Indian Constitution declares that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Unfortunately the present draft of the bill violates both the Universal Declaration of Human Rights and Article 14 of the Indian Constitution.

We would also request the committee to avoid duplication of laws, while drafting bills. Clause 19 (h) of the bill clearly states, that in case the perpetrator is not an employee, the employer shall initiate action under Indian Penal Code (IPC), without even waiting for the enquiry, for the same offense of sexual harassment. Or in other words, it is amply clear that remedies under the present provisions of IPC do very well exist, for the same offense of sexual harassment and can be easily applied when the perpetrator is not an employee. So why are we not applying the very same laws on the employee itself, without going for a new law, which is nothing but a duplication of Law, as per the very draft of the bill itself and clog the judicial dockets, with multiple cases. This clause has been explained in more detail later.

Today India is more famous for its astronomical scams than anything else. The outgoing chief of the Central Vigilance Commission openly stated that about 30% of Indians are utterly corrupt and about 50% are on the borderline corrupt and can be corrupted if presented with a situation. Hence given that over 80% of the country is corrupt, what is the justification behind creating laws which can be easily used as weapon for extortion? From the above data it can be concluded with reasonable accuracy that given that half the country is composed of women, over 40% of the Indian women are also corrupt. In this context we would like to bring to the notice of the Hon’ble Members, that our President, Her Excellency Mrs. Pratibha Patil, has repeatedly warned on the massive misuse of gender biased laws live IPC 498a, and urged everyone to exercise extreme caution while drafting such bills. The present bill, if passed in the present format, containing numerous loopholes and open to rampant misuse, would be a serious vote bank issue in the coming elections.

Let us now go through the various shortcomings of the present draft of the bill, and which requires the following amendments

A. Gender Neutrality

Comments

1) Women and Child Ministry has no right to deny MEN their rights.

2) All employers are committed to maintaining a workplace where each employee’s privacy and personal dignity are respected and protected from offensive / threatening behavior, irrespective of gender.

3) The Sexual Harassment at workplace policies prevalent in most of the nations today are gender neutral. According to a report on Sexual harassment at workplace by United Nations Economic Commission of Europe – Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, The Slovak Republic, Slovenia, Spain, Sweden, United Kingdom have policies for Sexual Harassment, that are gender neutral. Even neighboring Pakistan has Gender Neutral Sexual Harassment policies.

4) Surveys recently conducted by the Economic times, and Synovate across 6 Indian cities exposed the fact that men face more sexual harassment than women and must also be given protection.

5) Eminent social workers like Madhu Kishwar supported the fact that the Sexual harassment at Workplace Bill in its present from needs immediate amendment.

6) The feminist argument saying “sexual harassments of men are miniscule” is not based on any research, survey or study. Even if this argument is taken into face value, it does not stand a ground for denying protection for men; if the number of harassment is low the number of cases will also be low.

As per the Census of India 2001 data, men constitute 68.37% of the total workforce whereas women were 31.63%. Therefore, any effort to prevent or eliminate sexual harassment at workplace should be applicable to employees, irrespective of gender, both in terms of responsibility and liability.

Suggestion # 1

The Act should be made applicable to all employees, irrespective of their gender. The word woman should be replaced by the word employee in all appropriate places in the draft bill so as to render the proposed draft gender neutral.

B. Committees

B-I Tenure of Committees

Comments

The committees should not be permanent entities. This would help avoid any possibility of malpractice. Committees should be formed only when a complaint is received and appropriate action is warranted on it. They should be disbanded after appropriate action has been taken.

Suggestion # 2

No committee be formed unless to hear a specific complaint.

B-II Remuneration for Committee members

Comments

Section 7(2) and Section 7(4) of the draft bill propose tenure and remuneration for the Committee members. It is strongly recommended that no remuneration or allowances should be made payable to any of the Committee members as it would encourage frivolous and malicious cases to justify such payments.

Suggestion # 3

No remuneration, monetary or otherwise be provided to the committee members or chairperson.

B. 3 Constitution of committees

B.3-I Appointment of Committee Chairperson and Internal Committee members

Section 7(1)(a) of the draft bill states :- “a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women

Comments

The above proposed section is based on an unjustified, untenable premise that only women are capable of arbitrating complaints of sexual harassment.

Both section 7(1)(a) and 7(1)(c) use the phrase ‘committed to the cause of women’. Even the Supreme Court, Vishakha Judgement does not use the phrase “committed to the cause of women”. This phrase in fact finds mention in several places in the draft bill and its connotation only suggests an inherent bias and prejudice against men. The committee members instead should be individuals with ‘high integrity and a judicious approach’ and most importantly unbiased.

Suggestion # 4

Instead of being gender biased and committed to the “cause of women”, the appointment of the Committee Chairperson and members should be on the basis of their integrity and their judicious approach. All appointments should be transparent.

B.3-II NGO Committee member

In section 7(1)(c), the bill states :- “at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women, which may be prescribed”

In section 7(1)(d), the bill states :- Provided that at least one-half of the total Members so nominated shall be women

Comments:

Members external to the organization should not be allowed to arbitrate on the issues that are internal to the organization. Members of women’s groups or non-governmental organizations dealing with issues of violence against women may harbour an inherent bias against men and a fair and equitable probe may not be made available to male victims of sexual harassment. They may also encourage women who are not necessarily harassed, but have other grievances with the organization, to file sexual harassment complaints.

Another stipulation in this section requires that at least fifty per cent of the members so nominated shall be women.

Suggestion # 5 & 6

No members, external to the employer organization should be allowed in the committee.

Any stipulation with respect to number of women in the Committee is unnecessary and makes a prejudiced assumption that only women are capable of arbitrating complaints. This, as well as the “commitment to the cause of women” is addressed by

Suggestion #4.

Comments

In various sections the committee has been granted various powers to make appropriate recommendations to the employer or District Officer.

i. From the proposed draft bill it is not clear if the employer is bound by the recommendations of the committee.

ii. The process of appeals too is not clearly specified.


iii.
Would the recommendation of committee be open to challenge in a court of law?


iv.
Does the respondent have a right to utilize help of legal counsel during the proceedings on the enquiry?


v.
The power of the committee and the process of the enquiry of the complaint should be well defined.

Again Clause 11(2) of the bill states that “the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents; and

(c) any other matter which may be prescribed.

We strongly object to the subclause (c) “any other matter which may be prescribed” as such an important bill can’t give huge powers to the committee and at the same time, make clauses ambiguous and open ended.

Suggestion # 7

The powers of the committee and the appeals process should be specified unambiguously. Inadequacies mentioned in (i) to (v) above need to be addressed explicitly. Clause 11(2)c, needs to be deleted, being not specific, ambiguous, and open to various interpretations.

C. Complaints

C-I Conciliation

In section 10 (1), the draft bill states – “The Internal Committee or, as the case may be, the Local Committee, may, before initiating inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation“.

Comments

A complaint of sexual harassment is a serious complaint, and under no circumstances should the conciliation include any monetary settlements. It is an outrage to the sensibilities of all self respecting men and women that money can be considered as adequate redressal for their loss of dignity. Moreover, any kind of monetary incentive would only render the proposed statute open for abuse. Various media articles have specially pointed out these serious lacunae of this bill. In fact, this is in clear violation of the Supreme Court, Vishakha Judgement, which does not speak of awarding monetary compensation to a victim of Sexual Harassment, from the respondent, as Apex Court knew very well, that then, the bill, would be open to rampant misuse.

Suggestion # 8

Monetary compensation should not be a part of conciliation proceedings. This would to a large extent help avoid potential for misuse.

C-II Time limit on Filing Complaints

Comments

A time limit within which the complaint needs to be filed from the time of alleged incident is of crucial significance in settling sexual harassment disputes. Justice should be meted out before any evidence is damaged, destroyed, rendered useless or fades away from memory. In fact the complaint should be lodged by the complainant instantaneously and spontaneously without any loss of time. Any delay on this score must be explained to the satisfaction of the concerned authority. In addition, the filing of the complaint needs to be time bound. For example, it would be ridiculous to entertain a complaint of sexual harassment after years of the alleged incident. It is also important to remember that the guilty person should be visited with appropriate reformist action at the earliest, which can be made possible only when the complaint is filed instantaneously.

Suggestion # 9

The complaint should be filed immediately on the occurrence of the alleged incident. Any complaint not filed within a stipulated time period (4 weeks) should be closely scrutinized for veracity before admission and the delay should be explained in writing by the complainant, to the satisfaction of the committee.

C.3 Compensation

C.3-I Silence on action to be taken

The bill in clause 13(3)(i) states that “ to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

C.3-II Financial Responsibility

In section 13(3)(ii), the draft bill directs – “to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum of compensation to be paid to the aggrieved woman or to legal heirs, as it may determine, in accordance with the provisions of section 15:”

Comments

First of all the bill is totally silent on what action is to be taken on the respondent, in absence of service rules and states “as may be prescribed”. Or in other words, the draft bill is unfortunately silent on the main issue.

Secondly, loss of salary or wages would be a huge encumbrance on the family of the respondent, potentially including children, who would face economic hardships and could even jeopardize their future. The respondent must not be individually responsible when he/she is in employment of the organization. Rather, it is the responsibility of the organization to police its own employees and ensure they follow the service rules. If they don’t, the employer is responsible to pay the compensation to the victim. The employer can deal with the service aspects of the perpetrator separately in the best interest of their organization. In the western nations, the financial burden of a sexual harassment suit lies with the employer as it is the responsibility of the employer to provide a safe working environment to the employees.

Suggestion # 10

As prevalent in the western world, the Employer should bear the financial burden of the compensation ordered to the aggrieved person. The bill should clearly specify the action to be taken on the respondent in absence of service rules, as that it supposed to be the main purpose of this bill.

C.3-III Determination of Compensation

Comments

All incentives for filing frivolous and malicious complaints should be eliminated. No committee should be empowered to issue any monetary compensation at any stage of the complaint. All avenues for extortion and blackmail should be shut down by divesting the committee of all power to order any monetary incentive to the complainant.

The committee should be given authority only to investigate and submit a report. The question of compensation must be decided by a legal authority whose decisions should be available for review by higher judiciary.

Suggestion # 11

The committee should be divested of all powers to order any monetary compensation at any stage of the proceedings.

C.4 False and Malicious complaint

In section 14(1), the bill states – “

Provided further that the malicious intent or falsehood on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended”

Comments

When the allegations of sexual harassment cannot be proved against the respondent, then it should recommend action against the complainant immediately, within a maximum specified time limit of 30 days. The bill also states that “in accordance with the procedure prescribed”. We are all aware that most of the cases filed under this bill, would be false. And as no procedure is being spelt out, none would be punished for lodging false cases for ulterior motives. We strongly suggest the deletion of the above phrase to minimise its rampant misuse.

We would also like to humbly remind the Hon’ble Committee Members that on 7th August, 2009, some Women NGOs lobbied for deletion of the Misuse Clause from the draft bill. All the Women MPs, unanimously agreed that a Misuse Clause is very much needed to prevent misuse of this loosely worded bill. Unfortunately, after the above consensus was reached, with the Women MPs, the very misuse clause has been drastically changed to make the bill, ironically, even more prone to misuse.

Section 14(1), of the bill states that if a complaint is found to be false, the committee “may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint”.

The phrase ‘may recommend’ should be changed to “shall recommend” to ensure justice for a respondent falsely accused of sexual harassment.

Suggestion # 12

Mandatory action must be taken against the complainant when the complaint is found to be frivolous or malicious, within a maximum of 30 days.

Suggestion #13

Falsely accused person should have the right to pursue justice in a court of law, and claim appropriate redressal as remedy for the mental trauma, pain, suffering, emotional distress and social censure caused to the falsely accused person.

D. Duties of Employer

Clause 19 (g) states that “provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;

Comments on Section 19 (g)

The bill is totally silent on quality of assistance to be provided by the Employer.

Suggestion # 14

The quality of assistance to be provided by the Employer must be spelt out clearly and unambiguously in the bill.

E. Duplication of Law

Clause 19(h) states that the Employer shall “initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator after the conclusion of the inquiry, or without waiting for the inquiry, where the perpetrator is not an employee in the workplace at which the incident of sexual harassment took place.

Comments:

This clause makes it amply clear, that in case the perpetrator is not an employee, the employer shall initiate action under IPC, without even waiting for the enquiry, for the same offense of sexual harassment.  In other words, remedies under the present provisions of IPC do very well exist, for the same offense of sexual harassment and can be easily applied when the perpetrator is not an employee. So why are we not applying the very same laws on the employee itself, without going for a new law, which is nothing but a duplication of Law, as per the very draft of the bill itself and clog our courts, with duplicate cases.

We admit that there are three shortcomings with the present IPC laws vis-a-vis this draft bill.

Firstly, under the present IPC laws, the women do not get any monetary compensation for sexual harassment and the perpetrator also gets punished, if found guilty. Moreover, no Women NGO member gets paid for being recruited as committee members under the present IPC laws. In the present bill however, there is no punishment for the perpetrator, whereas the victim gets monetary compensation, for alleged Sexual Harassment, with an elaborate, non required, recruitments of committee members from various women NGOs, whose qualification would be “committed to the cause of women”, and thus get paid by the Government, from Tax Payers hard earned money.

Secondly in the Present IPC laws, the woman needs evidence in the court, to prove her case. In the present bill, however, there is no such requirement as the process of enquiry of the complaint has not been defined. Very special measure like blanket ban of use of RTI on the enquiry proceeding have also been proposed in this bill, making it wide open for rampant misuse under the cover.

Thirdly, the present IPC laws are again criminal in nature with the government Public Prosecutors, fighting for the women, with no scope of income generation for the women activist lawyers. In the present bill, the alleged victim would however require lawyers including women activists’ lawyers to fight her case and get monetary compensation for alleged sexual harassments. Thus the present bill would generate huge business and income for lawyers including women activists and simultaneously clog the judicial dockets with non required, multiple cases, as per the very draft of the bill itself. Such a scope of business and income generation for women activist lawyers is unfortunately absent under the present IPC laws.

Suggestion # 15

Avoid duplication of law as the very bill states that remedies under present IPC are very much available for the same offense of sexual harassment and can also be easily applied when the perpetrator is not an employee. So why not apply the very same IPC laws on the employee itself and avoid duplication of laws. The government can alternatively, employ such, women NGO members, qualified as “committed to the cause of women” in various other upcoming social schemes.

G. Right to the Enquiry Report

Section 16 prohibits the publication or making known, the contents of complaint and enquiry proceedings. Interestingly the bill suggests suppression of information only when the case is False. Information on true cases can however be retrieved through RTI Act. In a report published by the Transparency International, it was found that India’s corruption index showed a marked decline and the single-most reason for the drop in corruption in government was attributed to the Right to Information Act. The RTI Act which has been hailed as a beacon of democracy in India many a times by the Honourable Prime Minister and Leader of the UPA Mrs. Sonia Gandhi cannot be allowed to be trampled in such a manner by some people having vested interest. Even the DoPT has given serious objections in writing against this Clause 16, which brutally tramples the RTI Act.

The Sexual Harassment at Workplace is an outcome of the guidelines framed by Honb’le Supreme Court of India in Vishakha Vs State of Rajasthan (AIR 1997 SC 3011). The guidelines clearly say that “These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993”. The above clause is thus a clear contempt of the Apex Court guidelines and a blatant abuse of Human Rights.

Comments

When, either the complainant or the respondent wishes to approach any court of law for justice, they should have a right to the details and proceedings of the enquiry in the enquiry report to provide context to the judiciary.

Suggestion # 16

Section 16 should be deleted. In the event the complainant or the respondent wishes to pursue the matter in judiciary, the enquiry report should be provided to concerned party.

Summary of the above recommendations:

1.      The Act should be made applicable to all employees, irrespective of gender. The word woman should be replaced by the word employee in all appropriate places in the draft bill so as to render the proposed draft gender neutral.

2.      No committee be formed unless to hear a specific complaint.

3.      No remuneration, monetary or otherwise should be provided to the committee members or chairperson.

4.      Instead of being gender biased and committed to the “cause of women”, the appointment of the Committee Chairperson and members should be on the basis of their integrity and their judicious approach. All appointments should be transparent.

5.      No members, external to the employer organization should be allowed in the committee.

6.      Any stipulation w.r.t. number of women in the Committee is unnecessary and makes a prejudiced assumption that only women are capable of arbitrating complaints. This, as well as the “commitment to the cause of women” is addressed by Suggestion #4.

7.      The powers of the committee and the appeals process should be specified unambiguously. Inadequacies mentioned in (i) to (v) above need to be addressed explicitly. Clause 11(2)c, needs to be deleted, being not specific, ambiguous, and open to various interpretations.

8.      Monetary compensation should not be a part of conciliation proceedings. This would to a large extent help avoid potential for misuse.

9.      The complaint should be filed immediately on the occurrence of the alleged incident. Any complaint not filed within a stipulated time period (4 weeks) should be closely scrutinized for veracity before admission and the delay should be explained in writing by the complainant, to the satisfaction of the committee.

10. As prevalent in the western world, the Employer should bear the financial burden of the compensation ordered to the aggrieved person. The bill should clearly specify the action to be taken on the respondent in absence of service rules, as that it supposed to be the main purpose of this bill.

11. The committee should be divested of all powers to order any monetary compensation at any stage of the proceedings.

12. Mandatory action must be taken against the complainant when the complaint is found to be frivolous or malicious, within a maximum of 30 days.

13. Falsely accused person should have the right to pursue justice in a court of law, and claim appropriate redressal as remedy for the mental trauma, pain, suffering, emotional distress and social censure caused to the falsely accused person.

14. The quality of assistance to be provided by the Employer must be spelt out clearly and unambiguously in the bill.

15. Avoid duplication of law as the very bill states that remedies under present IPC are very much available for the same offense of sexual harassment and can also be easily applied when the perpetrator is not an employee. So why not apply the very same IPC laws on the employee itself and avoid duplication of laws. The government can alternatively, employ such, women NGO members, qualified as “committed to the cause of women” in various other upcoming social schemes.

16. Section 16 should be deleted. In the event the complainant or the respondent wishes to pursue the matter in judiciary, the enquiry report should be provided to concerned party.

Those who want to send this to Rajya Sabha can download the printer friendly format here

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