The last two weeks saw several women calling out men for alleged sexual harassment. Most of these men make up for an influential bunch given that there are senior journalists, actors, stand-up comics etc. Many of the harassment incidents date back to several years when the women concerned and the accused were either colleagues or related to the same workplace in some way.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013. It defines sexual harassment and lays down procedures for complaints, inquiries and action which the authorities have to take. It also broadens the Vishaka guidelines, which were already in place since long.
There are countless questions that everyone’s asking amid the #MeToo movement. We got to talking with lawyers, Rebecca John and Arushi Arora, to understand where laws concerning sexual harassment at the workplace stand. Let’s take a look at the guidelines and actions that can be taken.
Read #MeToo India stories here.
Arushi informs us that the Supreme Court had laid down these guidelines in a judgment in 1997. A women’s rights group had filed a case in the concerned situation. Vishaka, here, is one of the women’s names in the group. The group had filed a public interest litigation (PIL) over the alleged gangrape of Bhanwari Devi, a social worker from Rajasthan.
Provisions of the sexual harassment law at the workplace
Rebecca says that the provisions aren’t drafted structurally and there are some loopholes in the law too. She explains:
- It is a must that at least one of the parties should have been an employee of the workplace at the time of the incident.
- When you look at it, everything depends on the facts from the time when the alleged incident took place.
Arushi adds that the provision covers the fact that during the time of the alleged incident, the woman should either have been working or visiting the workplace for some work.
When the cases reported are years old
When it comes to complaints being followed up and the time-frame ticking, Arushi says it depends upon the survivor, the organisation and what follows after the internal complaint is filed.
- A complaint can be filed with the Internal Complaints Committee of the organisation within three months of the occurrence of the incident. Post that, there is always an option of filing a complaint and registering an FIR.
- In cases of sexual harassment, the delay, as per the law, is not a problem. The complaint filing window may be extended by another 90 days by the Internal Committee if the delay is reasonably explained.
Rebecca explains that there is a three-month limitation when we talk about sexual harassment at the workplace. She explains:
- The Act lays down a limitation of three months (90 days) for filing of complaints. For a criminal law, in a crime as grave as this, the complaint limitation period ranges from one year to three years, depending on the nature of the offence.
- However, there is absolutely no limitation period for filing a complaint of rape with the police.
- Another important factor that we need to understand is that if, at the time of the incidents, the workplace did not have a redressal mechanism as mandated by the SC in 1997 (Vishakha) and in the 2013 Act by Statute, then the non-filing of a complaint cannot be held against the woman.
Burden of proof
Another significant factor to be considered is that on whom does this burden of proof lie when there is no witness to the alleged incident.
Both Rebecca and Arushi point out that the burden of proof lies with the prosecutor beyond reasonable doubt.
- The prosecutor has to provide relevant proofs in cases of criminal offence. Criminal offences are bound to be State vs Accused.
- The investigation agency also plays a major role in collating proof and presenting it. The survivor has to assist the agency and help the case.
- The court examines the survivor when the prosecutor and investigation channels submit proof.
- It is indeed difficult to prove an offence if there are no evidences.
If we talk about olden times, women were generally not believed. This, however, has changed drastically. In the current scenario, Arushi says, the law believes women and the society is more open to listening to them. Of course, the court requires proof but there’s a positive change when it comes to addressing theses issues.
Law covers situations wherein the woman has, in any manner, been associated with the organisation at the time of the incident
- Rebecca informs that The Sexual Harassment of Women at Workplace provides remedies to the survivors. The survivors, in question, should either they have to be employed by the organisation, or have to be associated with the organisation in any capacity. Arushi says that the association can be in any form, as an intern, a guest visitor for work, for meetings etc.
- The complaint in this case can be filed against an employee of the organisation or even an outsider who crosses paths in relation to the work.
What happens and which authority should the woman approach when she has never worked in the organisation of the accused, or has worked, but no longer does so?
Rebecca explains that there are many sides to this situation. The complaint can be filed in various ways.
- The woman can file a complaint even after she has left the organisation if the sexual harassment took place while she was employed by the organisation earlier.
- Now in the case if the woman had never been employed by the organisation, she has the right to file a complaint with the Internal Complaints Committee (ICC) of the organisation where the man works. This is in case of any harassment which has taken place in the course of work like the woman being a consultant, guest etc.
- The woman can also choose to register a complaint with the police. The employer has to provide necessary support such as legal assistance, leave etc. in this case.
Arushi says that there are other channels, too, wherein the complaint can be registered.
- The woman has the right to file a complaint with the Local Complaints Committee. Every district has an established committee. This committee does not offer a justified redress and is also not very popular. But the law still counts it as an option.
- Then there is IPC Section 354A and other related sections under which the woman can register the complaint.
The lawyers inform us that the law allows women to always access remedies under civil and criminal law simultaneously.
When individuals are or were working in the same organisation but the incident took place in a private space outside work hours
- Rebecca says that although it’s difficult to assess the situation when the incident has happened in a private space, at someone’s house for example, the law still allows for addressing the issue.
- The law, she says, duly notes that the relationship between the individuals arose during the course of work and they share a professional relationship.
- Arushi says that these offences, even if committed in private spaces, can result in grave impact on other women at the workplace.
- The employer, in such a case, must address the incident through appropriate measures. It’s the employers duty to fulfil its constitutional and legal responsibility in maintaining a safe working environment for everyone.
Do romantic relationships, past or present, form a defence against what the woman claims as sexual harassment?
Arushi tells us that the accused party cannot use romantic relations as an excuse or a defence. Especially now, when the Supreme Court’s recent judgments on ‘Privacy and Adultery’ recognise the bodily and sexual autonomy of women as a fundamental right. Rebecca enlightens us with some crucial points in this regard:
- The parties need to bring the concerning facts of the case and circumstance.
- Again, whatever the case may be, it’s the employer’s responsibility to provide a safe work environment for all employees, regardless of relationships between the two individuals.
Situations where one or both parties have consumed alcohol
The lawyers strongly state that it should be duly noted that situations wherein one, or both individuals, are under the influence of alcohol do not account to any kind of defence for offence against the woman. This is a clear matter of a woman’s sovereign and fundamental right over her body.
Also Read: #MeToo Is No Laughing Matter. It Is The Tipping Point.