In her defence

Women have to continually live with the threat of sexual harassment. Rajesh Gill deliberates whether the passing of theProtection of Women against Sexual Harassment at Workplace Bill will make working women breathe easy

The Bill on Protection of Women against Sexual Harassment at Workplace, which is going to be tabled in Parliament in the winter session is more than welcome in view of the large number of women having entered into employment sector in the country. Most vulnerable have been the unskilled and semi-literate women working in the unorganised sector constituting more than 90 per cent of total gainfully employed women in India.

Therefore the most significant feature of the proposed Bill is that it has a comprehensive coverage, which is likely to benefit all women who are in employment. Further, it is not only the women employees who can seek justice under the provision but even other women at a workplace, like students or service recipients would also benefit in case of sexual harassment at workplace. Whether in villages, towns or cities, men in a patriarchal set up that we have always had, are not used to having women around, especially surpassing them in efficiency as colleagues or using their authority at superior positions.

There have been numerous cases since the implementation of 73rd Constitutional Amendment Act in which women sarpanches and members of Panchayats, especially when they were assertive and non obliging to male members, have been "taught a lesson" by the men around by humiliating them in full public view.

After the Vishakha case, it was made mandatory for all public sector organisations, including universities, to have actively functional bodies known as Gender Sensitisation Committees against Sexual Harassment (GSCASH). But in reality, these have hardly been functional in most of the cases.

If the proposed Bill comes into force as an Act, this provision shall certainly get teeth. But there is no need to over-estimate the Act. Like most of other provisions, such as Dowry Prohibition Act, Section 498-A of Indian Penal Code, Protection of Women against Domestic Violence etc., this provision too shall be liable to misuse. In fact, this Act has already evoked a mixed response with a strong apprehension among men that women are going to misuse the provision against men in order to meet their vested interests.

Instead of brushing such fears under the carpet, there is need to counter them, debate them and build public opinion so that the objectives for which this Act is being formulated, can be met. These apprehensions can be effectively handled provided the "Internal Complaints Committees" the Bill talks about, are methodically and judiciously formulated. As per the proposed Bill, these committees shall have to discern the malicious complaints, and identify the genuine ones. Persons of high integrity and calibre need to be engaged for the job so that justice is not denied but delivered.

The most crucial aspect of the acts of sexual harassment at workplace (as elsewhere) relates to the fact that such an act is always committed in complete privacy, generally when the relationship between the person committing it and the victim is either fiduciary or that of super ordination. In such cases usually there is no witness and it is extremely difficult to produce direct evidence by the victim. Consequently, while the victim, for want of witnesses and evidence, generally chooses to remain silent (not complain) for the fear of getting stigmatised, the person committing the act gets encouraged.

But it is important that the proposed Bill has taken up a comprehensive definition of "sexual harassment" from Vishakha case, encompassing sexually coloured remarks, sexual advances and gestures etc., apart from actual physical acts, thus coming to the rescue of thousands of women who are persistently harassed at workplace not necessarily with physical acts but through sexually flavoured gestures or remarks, coming so naturally from men. Of course, in modern job environment, it is common for women to mix around with men, have live-in relationships, now legalised, and be comfortable with the advances of men. But the point is that no man has a right to force himself upon a woman who refuses to take it. Several judicial pronouncements in Indian courts have categorically ruled that even a prostitute has a right to privacy and no man has a right to force himself upon her against her consent.

The proposed Bill reminds us, especially men, that it is time we mind our language, at least at the workplace, show some professionalism and look upon women at workplace as human beings. The recent cases involving complaints of sexual harassment by women officers in defence services against their male officers have generally aroused a backlash blaming the presence of women at workplace as mind polluting. It is time our men build up strong minds along with strong bodies.

Let us hope that the Act giving protection to women against sexual harassment at workplace comes into force and enables women to give their best professionally, not fearing men while using elevators, or while working with them in subordination or as colleagues. But for that women, especially at the bottom of the hierarchy, shall have to be educated about the legal provisions regarding their protection. Finally, there is no need for men to fear because it is not only their women colleagues or subordinates who are going to get protection at the workplace, but more importantly their wives, daughters, sisters and mothers too.

Protective provisions

v        The Bill recognises the promise or threat to a woman's employment prospects or creation of hostile work environment as 'sexual harassment' at workplace and expressly seeks to prohibit such acts.

v        The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/ university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors.

v        The Bill provides for an effective complaints and redressal mechanism. Every employer is required to constitute an Internal Complaints Committee. Since a large number of establishments in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee.

v        Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to Rs 50,000.

v        Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.

v        The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee.

v        The Bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.

v        Implementation of the Bill will be the responsibility of the Central Government in case of its own undertakings/ establishments and of the State Governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory.