Following #MeToo campaign, the Centre has announced its plan to set up a panel of judges to look into the legal and institutional framework to curb sexual harassment at workplace.
WHAT WILL THE COMMITTEE DO
- The committee will have four retired judges and a lawyer.
- It is expected to be formed by early next week and will look into the legal and institutional framework, which is in place currently and will hear all complaints and give its recommendations.
- This will include framework available within The Sexual Harassment of Women at the workplace (prevention, Prohibition and Redressal) Act, 2013, and the formation of Internal Complaints Committees, as mandated by the rules.
- The panel will also examine the nature of individual complaints and accounts posted on social media as part of the movement and analyze the aspect of the stipulated time limit for reporting a crime under the statutes of limitation.
JUSTICE VERMA COMMITTEE
- In December 2012 a three-member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.
- The other members on the Committee were Justice Leila Seth, former judge of the High Court and Gopal Subramanium, former Solicitor General of India.
- The Committee submitted its report in January 2013.
- It made recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms.
- In its landmark report on gender laws, had recommended setting up an employment tribunal of an internal complaints committee (ICC) in sweeping changes to the Sexual Harassment at the Workplace Bill.
MAJOR RECOMMENDATIONS OF THE PANEL
- The panel termed the Sexual Harassment Bill “unsatisfactory” and said it did not reflect the spirit of the Vishakha guidelines, framed by the Supreme Court in 1997 to curb sexual harassment at the workplace.
- It recommended that the gradation of sexual offenses should be retained in the Indian Penal Code, 1860 (IPC).
- The panel was of the view that rape and sexual assault are not merely crimes of passion but an expression of power.
- Rape should be retained as a separate offense and it should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be included in the definition of rape.
RELATIONSHIP SHOULD NOT BE RELEVANT
- The IPC differentiates between rape within marriage and outside marriage.
- Under the IPC sexual intercourse without consent is prohibited. However, an exception to the offense of rape exists in relation to un-consented sexual intercourse by a husband upon a wife.
- The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts.
- Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the panel stated that the relationship between the victim and the accused should not be relevant.
WHAT IS THE “#METOO” MOVEMENT
- The #MeToo campaign began in 2017 as a hashtag on Twitter amid the Harvey Weinstein, where the noted Hollywood producer has been accused of sexual harassment by over 70 women.
- Through this movement, several women have bravely come out with stories about harassment and sexual abuse at the workplace at the hands of the powerful and higher-ups.
UNDERSTANDING THE LAWS RELATED TO SEXUAL HARASSMENT
- An offense against a woman can be divided into four main categories depending upon the place where it is committed- a public place, a workplace, a shared household (including home), and other places.
- The law can further be classified based upon the age of survivor- below 12, between 12-16, between 16-18 or above 18 years of age.
- There are 6 main legislative enactments that deal with the issue of sexual harassment:
- Indian Penal Code 1860
- Protection of women from Domestic Violence Act 2005 (DV Act)
- Protection of Children from Sexual Offences Act, 2012 (POCSO)
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
- Information Technology Act, 2000
- Indecent Representation of Women (Prohibition) Act, 1986
THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION, AND REDRESSAL) ACT, 2013
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 came into force with effect from 9th December 2013 and in India, it is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which deals with the sexual harassment at workplace.
- The Act seeks to cover all women, irrespective of their age or employment status and protect them against sexual harassment at all workplaces both in public and private sector, whether organized or unorganized.
- This will contribute to the realization of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women's participation in work, resulting in their economic empowerment and inclusive growth.
- The Act seeks to provide a secure and enabling environment for women employees, including domestic workers, against sexual harassment at the workplace.
- The Act makes it mandatory for all workplaces, including homes, universities, hospitals, government and non-government offices, factories, other formal and informal workplaces to constitute an internal committee for redressal of complaints.
HOW THE ACTS ARE USED
- IPC & Sexual Harassment at Workplace Act: If the crime of sexual harassment is committed against a survivor at a workplace and she is above 18 years of age, she gets the remedy available under the IPC and the Sexual Harassment Workplace Act.
- IPC & Domestic Violence Act: If she is married and the crime is committed against her at her home, she is aggrieved under the IPC and the Domestic Violence Act.
- IPC & POCSO: If he or she is a child, i.e., below 18 years of age, IPC along with the POCSO is attracted, irrespective of the place of occurrence.
WHERE THE LAW LACKS
A number of voids in the Indian legal framework give ample opportunity to the male-dominated structures to seep in and sweep away the sensitivity of the intended law from the existing system.
- The present system is flawed at multiple levels because it disproportionately places the burden on the complainants completely ignoring the glaring systematic problems and failures.
- The present 2013 law does not explicitly establish the responsibility of an employer when the organization fails to comply with preventive measures mandated under the law.
- There is the limited liability for employers, and hence, there is not much incentive or concern for large private organizations to implement the Act.
- Claims in tort law become untenable for complainants due to overburdened and insensitive courts and scope of limited damages.
In the last couple of years, the issues of sexual harassment have been widely covered in the media. The #MeToo campaign has bravely highlighted the plight of women. With this initiative, a number of survivors have come forward to share unfortunate incidents of harassment. It gave many Indian women the encouragement to come out with their own experiences of sexual harassment. It is the high time that employers take affirmative steps in implementing zero-tolerance policies towards violence against women at their workplace. Further, the government should tighten the laws to ensure that the complaint is investigated swiftly, comprehensively and confidentially.