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 A NEW LAW…

Law on prohibition of sexual harassment in India

March 10, 2016

Suruchi
Partner
Fidelex Attorneys

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 INDIAN LAW ON PROHIBITION OF SEXUAL HARASSMENT
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Constitution of Vishaka Vs. The Indian

India State of Penal Code,
Rajasthan 1860

The Sexual
Harassment of Women at
Workplace (Prevention,
Prohibition and Redressal) Act,
2013 (“New Act“)

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 • To protect the
fundamental rights of
Objective of women:
the new act

• Article 14
• Article 19
• Article 21

• To give the right to work

with dignity as
recognized by the
international convention

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 • Physical contact and
advances

• Demand or request for

harassmen

Definition sexual favor

of sexual

• Making sexually colored

t

remarks

• Showing pornography

• Unwelcome physical, verbal

or non-verbal conduct of
sexual nature

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  Implied / explicit promise of
preferential treatment in
employment

 Implied / explicit threat of

harassment

constitutin

Ingredient detrimental treatment in

g sexual

employment
s

 Implied / explicit threat about

present or future employment
status

 Interference with work or

creating an intimidating /
hostile environment

 Humiliating treatment, likely to

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 BREAKING DOWN THE DEFINITION :

Severe or Pervasive

• The conduct of the harasser must be either severe or

pervasive to be classified as sexual harassment.

• Although a single unwanted request for a date or

one sexually suggestive comment might offend you
and/or be inappropriate, it may not be sexual
harassment. However, a number of relatively minor
separate incidents may add up to sexual harassment
if the incidents affect your work environment.
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 WHAT IS SEXUAL HARASSMENT?

• Unwelcome verbal, visual or physical conduct of

sexual nature that is severe or pervasive and
affects working conditions or creates a hostile
work environment.

• To qualify as sexual harassment, the conduct

must meet three criteria:

• Must be unwelcome
• Must be sexual in nature
• Must occur in or impact the work environment
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 BREAKING DOWN THE DEFINITION :

Conduct
Conduct is NOT sexual harassment if it is welcome.
For this reason, it is important to communicate
(either verbally or in writing) to the harasser that
the conduct makes you uncomfortable and you
want it to stop.

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 BREAKING DOWN THE DEFINITION :

Of Sexual Nature

• Verbal/Written: Comments about clothing, personal

behavior, or a person’s body; sexual or sex-based jokes;
requesting sexual favors or repeatedly asking a person
out; sexual innuendoes; telling rumors about a person’s
personal or sexual life; threatening a person, sending
emails or text messages of a sexual nature

• Physical: Assault; impeding or blocking movement;

inappropriate touching of a person or a person’s
clothing; kissing, hugging, patting, stroking
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 BREAKING DOWN THE DEFINITION :

Of Sexual Nature
• Nonverbal: Looking up and down a person’s body; derogatory
gestures or facial expressions of a sexual nature;

• Visual: Posters, drawings, pictures, screensavers, emails or text of

a sexual nature

• Non-sexual conduct may also be sexual harassment if you are

harassed because you are female, rather than male, or because you
are male, rather than female.

• For example, it may be sexual harassment if you are a woman

working as a carpenter on an all-male job, and you are the only one
whose tools are frequently hidden by your male co-workers.

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 QUESTIONS TO ASK YOURSELF:

• How many times did the incidents occur?

• How long has the harassment been going

on?

• How many others have been sexually

harassed?

• Who were witnesses to the harassment?

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 AFFECTS WORKING CONDITIONS OR CREATES
A HOSTILE WORK ENVIRONMENT

• It may be sexual harassment if the conduct

unreasonably interferes with your work
performance or creates an “intimidating, hostile,
or offensive work environment.”

• For example, it may be sexual harassment if

repeated sexual comments make you so
uncomfortable at work that your performance
suffers or you decline professional opportunities
because it will put you in contact with the
harasser.
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 INTERNAL COMPLAINTS COMMITTEE

 Mandatory for establishments employing 10 or more

employees

 Internal Complaints Committee to be appointed by an

order in writing

 At least ½ of the membership of the Internal Complaints

Committee to be women

 Internal Complaints Committee to prepare and submit

an annual report to the employer and the District Officer

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 • Presiding Officer: Senior
woman employee from the
workplace / other admin units /
office / organisations
Complaint
Committe

Internal
• Two Members – Committed to
e

the cause of women /

experience in social work /
legal knowledge

• One member from an NGO /

other women's organisation /
familiar with issues relating to
sexual harassment

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 • To be set up every
district

• Local complaint
Committe

Complain
committee is the
Local
grievance redressal
e

body with respect to:

• Organizations having
less than 10
employees
• Organizations who
have not set up ICC
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 GRIEVANCE REDRESSAL PROCESS

Incident of sexual
harassment
Beyond three months Three months

Reasons for delay to be

Complaint made to
recorded in writing
ICC / LCC
beyond three months
When employee request
When there is no for settlement
settlement
Settlement
 Not monetary
INQUIRY  ICC to record settlement and
forward to LCC and parties
 No further inquiry
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 GRIEVANCE REDRESSAL PROCESS
Inquiry should
Appeal to follow the
court / principles of natural
tribunal justice
Punishment as per Allegations proved within 60
days Inquiry report to be
service rules;
submitted to the
monetary penalty
employer and the
payable to the
• ICC / LCC to inquire into parties
aggrieved woman Allegations not proved
whether the allegations No action to be taken;
were made with a malicious assessment of whether
intention charges are false /
• Inability to substantiate the malicious
complaint or provide
adequate proof doesn’t not
amount to malice
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 During the pendency of the
enquiry, upon written
request by the aggrieved
relief upon
request

Interim employee:
• Transfer the aggrieved
woman or the respondent
to any other workplace

• Grant leave to the

aggrieved woman up to a
period of three months

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 • Mental trauma, pain,
suffering, emotional
distress caused
• Loss in career
to determine
compensatio

Ingredients
opportunity due to the
incident
n

• Medical expenses
incurred
• Income / financial
status of the
respondent
• Feasibility of such
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payment in lump sum
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 EMPLOYER’S OBLIGATIONS

 Provide a safe working environment

 Display at the workplace, details of:
 The penal consequences of indulging in acts of
sexual harassment through the ICC
 The grievance redressal mechanism available to
aggrieved employees
 Organize workshops and awareness
programs for sensitizing employees
 Organize orientation programs for ICC
members
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 EMPLOYER’S OBLIGATIONS

 Cooperate and assist during the course of

the inquiry
 Treat sexual harassment as misconduct
under the service rules
 Provide assistance to the aggrieved
employee, should she choose to file a
police complaint
 Initiate action under the IPC or such other
applicable law
 Ensure timely submission of reports to the
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District Officer
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 PENALTIES

 Failure to constitute an ICC

 Contravention of any provision under
the statute
 Fine of INR 50,000
 Cancellation of business licences
 All offences under the statute are
non-cognizable

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 PROVISIONS UNDER THE INDIAN PENAL
CODE

 Section 509: Word, gesture or act intended

to insult the modesty of a woman offence:
 Utterance of any word
 Making any sound or gesture
 Exhibiting any object
 With an intention to intrude upon the
privacy of a woman
 Punishment: Simple imprisonment up to 3
years and a fine
 Nature of offence: Cognizable
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 AMENDMENT TO THE PROVISIONS
UNDER THE INDIAN PENAL CODE
 Section 354A: Sexual harassment and punishment for
sexual harassment
 Offence:
 physical contact and advances involving unwelcome and explicit
sexual overtures; or
 a demand or request for sexual favours; or
 showing pornography against the will of a woman; or
 making sexually coloured remarks
 Punishment: Commission of an offence under (i), (ii) or (iii)
punishable with rigorous imprisonment for a term of up to 3
years and/or fine; commission of offence under (iv)
punishable with imprisonment for a term up to one year
and/or fine
 Nature of offence: Cognizable
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