For 15 years now,government agencies and womens groups have consistently pressed for a law on sexual harassment. This urgent need for a law was finally recognised when the Sexual Harassment of Women at Workplace (Prevention,Prohibition and Redressal) Bill,2010,was passed in the Lok Sabha on September 3. However,several sections of the bill must be revisited before it can be turned into an effective law.
It is a known fact that sexual harassment in the workplace occurs in a hostile work environment. Yet the definition of sexual harassment in the bill does not factor this in. Implied or overt promises of either preferential or detrimental treatment,which interfere with work or create a hostile work environment,should have been part of the definition.
Legislators should also consider excluding Section 14 from the bill,which seeks action against complainants for false and malicious charges. This could unnerve women trying to gather the courage to raise their voice against harassment by seniors and colleagues at work. It is also possible that this section will be misused by the accused employer to discredit the victim. Any complaint that cannot be proved,for whatever reason,would then be put down as false or malicious. Moreover,the internal complaints committee in the workplace cannot be given the prerogative to categorise complaints as genuine or false. It is important to note here that no other law has provisions to penalise the complainant if her accusations are not proved.
Provisions for compensation and the redressal of grievances also need to be revised. Section 15 of the bill,for instance,should delineate the procedure and fix responsibility for compensation. The fine of Rs 50,000,mentioned in Section 26,is too paltry. The amount fined must be commensurate with the net worth of the company. A new section should be added to the bill to ensure that employers cover damages if the complainant has lost her job or been denied promotion because of harassment. The bill should also ensure that the complainant is not pressured into conciliation with the employers and forced to withdraw charges. However,cases of sexual harassment reported to the complaints committee at the workplace may be addressed through non-formal means,such as warnings to the accused or discussions between complainant and harasser.
The scope of the bill,in terms of the workplaces it covers,should also be discussed further. While the demand for the inclusion of domestic workers has been accepted,the bill leaves out agricultural workers,who form a large part of the unorganised sector. Women working in fisheries and forests as well as those employed in construction sites,stations and trains must be brought within the purview of the bill. Women employees in the armed forces should also be covered.
There are other flaws. For instance,Section 9 (1) says that the complaint must be made within three months of the offence. But research reveals that the social stigma faced by victims of sexual harassment and the fear of negative repercussions on their jobs make women hesitant to complain. If and when they do manage to pluck up the courage to complain,the stipulated time period might already be over.
The bill should also have a section to protect women from the possible repercussions of making a complaint. After all,it is not uncommon for an employer to retaliate by terminating the complainants contract,effecting a forced transfer or denying promotion. Finally,Section 16 of the bill prohibits revealing the identity of the accused,even if he is found guilty of sexual harassment. This is warped logic,and appears to be an attempt to shield the men who are guilty of harassment in the workplace.
Much remains to be done to achieve justice for women affected by sexual harassment,and to prevent the offence in the first place. The Supreme Courts Vishaka judgment of 1997,and other judgments following it,have laid a strong foundation for prosecuting the offence. However,change must start at the individual level gender equality and human rights must be respected by each one of us.
The writer is a research scholar at the Tata Institute of Social Sciences,email@example.com