IN VIEW of the recent #MeToo revelations in India, the National Commission for Women (NCW), which was responsible for bringing out the first draft of the existing Bill to prevent sexual harassment at workplace, is set to hold a series of stakeholder consultations next month so as to review the Act for lacunas and suggest amendments.
NCW officials admit that the present law is flawed and not equipped to deal with the nature of sexual harassment complaints that have come to the fore recently, in most cases after a considerable time lapse.
“The review of the law is required. The NCW’s mandate includes reviewing laws pertaining to women. We will be holding a review meeting in November that will be attended by former judges and other legal experts, academicians, and NGOs working on women’s issues,” said NCW chairperson Rekha Sharma. She added that the recommendations for amendment will be forwarded to the Ministry of Women and Child Development or directly to Parliament.
The existing Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is based on a draft prepared by the NCW in 2010 — drawing on the Supreme Court’s 1997 Vishaka judgment on measures to be adopted by employers to address workplace sexual harassment. It provides for constitution of an Internal Complaints Committees (ICC) at all workplaces that employ 10 or more persons and Local Complaints Committees (LCC) under the district collector for workplaces with fewer employees or for women in informal sector including domestic workers and daily wage labourers.
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According to an NCW official, the most glaring problem with the law is the provision that allows the complainant to be penalised thus creating a fear of retribution. Section 14 of the Act states that where the ICC or LCC “arrives at a conclusion that the allegation against the respondent is malicious or the complaint (is made) knowing it to be false, forged or misleading document” is produced, they can direct the employer or district officer to take action against the complainant.
“Even in worst kinds of crimes, the courts merely dismiss a petition if it is found to be false. Here, the complainant faces threat of action against her if the ICC declares that her case is not genuine,” said an official.
Other issues that the law, in its current form, fails to address are ensuring the independence of the ICC since all except for one of its members are from within the workplace itself. “The ICC / LCC should comprise external women members who work on gender issues with just one member from the workplace meant to assist them. This is especially important since in many cases, the perpetrators are powerful senior-most officials and a committee comprising subordinate employees cannot be expected to be fair,” said the official.
In addition to issues with the law itself, there are a host of issues with implementation, said officials. Sharma said, “The law mandates that the ICCs have to submit their report within three months. But in most cases, it takes anywhere from six months to over one year putting the woman through a great deal of torture in this time period. The Act states that the woman can go on paid leave for the three-month inquiry period but what about when the inquiry stretches for months beyond that? It is often the woman who is given a different posting and the accused is allowed to work in the same office.”
Officials point out that majority of the state government departments do not set up ICCs unless there is “some incident” and the same is true of the district level committees while there is no record when it comes to private firms. Moreover, although the 2013 Criminal Amendment Act makes sexual harassment a criminal offence punishable with anything from one to three years imprisonment, in most cases the accused is merely suspended by the employer and no police complaint is lodged. “We need broader consultations to understand the nature of issues that are emerging so that the law can be amended accordingly,” said an official.