The Protection of Women against Sexual Harassment at Workplace Bill, 2010 Some Loopholes
We all are fully aware as to how much discrimination a woman faces right from the time she is in her mother’s womb. But very few of us actually ever ponder upon it. The government too knows everything and therefore its move to bring in such legislation which protects women from sexual harassment at workplaces is a welcome one. By all accounts, the Protection of Women against Sexual Harassment at Workplace Bill, 2010, is a highly commendable one and needs to be implemented in letter and spirit. It is imperative to ensure a safe environment for women at all workplaces.
The Bill proposes a broadened definition of sexual harassment which is as laid down by the Supreme Court in Vishaka vs State of Rajasthan (1997). It defines sexual harassment as “unwelcome sexually determined behaviour, physical contact, advances, sexually coloured remarks, showing pornography, sexual demand, request for sexual favours’’ and sexually-coloured conduct “whether verbal, textual, physical, graphic or electronic’’. It also includes any implied or overt promise or threat of preferential or detrimental treatment for a woman employee based on her response to the harassment.
The Bill envisages protection not only to women who are employed but also to any woman who enters the workplace as a client, apprentice, customer, and daily wage worker or in ad hoc capacity. It also covers students, research scholars at colleges/universities and patients in hospitals and workplaces in the unorganised sectors. It also arms the women with effective complaints and redressal mechanism. It is obligatory on every employer to constitute an Internal Complaints Committee but considering the fact that a large number of establishments in our country have less than ten workers, it is not possible to set up an Internal Complaints Committees. As per the Economic Census 2005, 41.2 million establishments out of 41.33 million have less than ten workers.
It is also expressly provided in the Bill that 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. A woman also has been given the option to seek interim relief in the form of transfer of either her own or the respondent or seek leave from work as there is always the chances of women being subjected to threat and aggression during the pendency of the enquiry. It is also provided that the Complaint Committees must complete the enquiry within 90 days and a time limit of 60 days has been provided for implementation of the recommendations of the Committee to the employer/district officer.
The major drawback in the Bill is that it does not provide for minimum imprisonment of at least few months if not a year to those found indulging in sexual harassment of women. It does, however, provide for safeguards in case of a false or malicious complaint of false harassment. But here it must be noted that mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment. The Bill also lays down that the responsibility of the implementation of the Bill will be 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 the ambit. Another major drawback in the Bill is that domestic maids are not covered by the proposed Bill. Officials say that domestic workers have been left out keeping in view the numerous administrative difficulties in proving sexual harassment due to lack of witnesses and the effectiveness of the local committee at the accused’s home.
Keeping in view the glaring fact that nearly 88 per cent of women workforce in IT sector are subjected to sexual harassment at workplace as a survey recently revealed, it was imperative that new laws were enacted to protect women from sexual harassment at workplaces and deter potential offenders from indulging in the same as per their discretion. But in this Bill also, absence of imprisonment term of at least few months is a major drawback which the policymakers should rectify at the earliest so that it can act as a sufficient deterrent for potential offenders from indulging in the same. Failure to do so will only serve in making it less effective and influential, rich offenders will bother the least in sexually harassing women at workplaces.
By Sanjeev Sirohi