• Where does the draft fall short of expectations? Suggestions to bridge the gap.
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My comments on Anti Sexual Harassment at workplace Draft Bill as follows.
Expectations from the Act.
In Vishaka and others V. State of Rajasthan, the petition was brought as a class action by certain social activists and NGOs with the aim of focussing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of 'gender equality', and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation. Therefore the proposed Act is expected to deliver the following:
‘Protection from sexual harassment and right to work with dignity’
This is ensured, only if
1. There exist, a working environment, where the employer makes all reasonable efforts to prevent such events from happening.
2. If the misconduct does takes place, there exists a ‘fair mechanism’, in which, the employees have, enough trust that they approach it immediately.
3. The enquiry procedure is time bound and confidential.
4. If the misconduct is established, the punishment awarded should be sufficient to deter others and is implemented within specified time. Follow up Actions are done timely.
Where does the draft fall short of expectations? And Suggestions to bridge the same.
On scrutinizing the Draft Bill in question on the above four parameters the following observations are made.
1. There exist, a working environment, where the employer makes all reasonable efforts to prevent such events from happening.
a). Clause 4(v) states that the employer shall take all necessary steps to assist the aggrieved women… but the Act is ambiguous, as to what are the ‘necessary ’ steps. Clause 14(1) (Presuming that the misprint is “Every owner/manager of the workplace..” ) and Clause 14(1)(c) are quite vague. Which allows the employers to display incomplete information which may not be of much assistance to the victim. Information is not only vital but a prerequisite to make the Act effective. Therefore a format for displaying the information should be placed in the annexure of the Act for the employer, with at least following basic information:
• What constitutes sexual harassment
• Rights of a victim under the Act
• Whom to contact.
• Whom to contact, if the Committee chairperson refuses to take the complaint.
• Where to appeal against the decision.
• About the procedure (time bound , confidential and her rights during the enquiry )
• Other Contact places like the local committee, helpline numbers , ncw etc
The above information should be translated in the local languages.
b). General duties of an owner of a workplace at clause 14. Should include the following guideline of Supreme Court in the Vishaka and others V. State of Rajasthan
‘Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment’
c). General duties of an owner of a workplace at clause 14(1)(h) should be subject to the maximum limit up to which the organization can spend on the expenses of the committee members. Not subjecting it to any limit may make the provision a vulnerable tool of corruption or interest generation of the committee and in the process vitiating the essence of the Act.
2.If the misconduct does takes place there exists a ‘fair mechanism’, in which, the employees have, enough trust that they approach it immediately.
The two essential ingredients of this parameter are
a. Fair mechanism
b. Trust in the system
a. Fair mechanism constitutes two parts. Firstly, the fair committee members and secondly, the fair procedures.
Constitution of the committee:
1. The Act is not very explicit, about the mode and the criteria for constituting the internal complaints committee. It is ambiguous on following points.
I. The committee seems to be appointed by the employer.
Clause 8 states 'Duty of the workplace to constitute Internal Complaints Committee' , draft is ambiguous as to the mode of constituting the committee. It seems to imply that the committee will be appointed by the employer. If so, it violates the basic principle of natural Justice, nemo iudex in causa sua, one can’t be a judge in his own case. It is difficult the perceive, that any women employee who is nominated by the employer and whose career interests vests with the employer will be able to deal with the case in a fair manner. In all probability fair enquiry against the employer will become an elusive target, when the employer's representative is chairing the enquiry? The misuse of the internal committee to gain bargaining power with the unions and its other employees cannot be ruled out.
a). The internal committee should constitute of three members headed by a women chairperson. The chairperson of the internal committee, should be an independent outsider, who has no interest of any kind, related to the business of the organization, in which she is chairing the internal committee and an undertaking to the same effect should be taken from her before appointing her as the chairperson.
A clause should be inserted explicitly identifying the circumstances which qualify as interest in the organisation.
A list should be drawn by the District Officer for all organizations in the district,from the database of the experienced women in the field of Women activism who is familiar with the issue of sexual harassment, NGO (which is not black listed and working on the issue), lawyers with minimum 15 years of practice, Group A(gaz) officers posted in the district and who are familiar with issues of sexual harassment. Allocation of the chairperson should not be random but a standard roaster system should be followed.
c) The term of office of such chairperson should not be more than 3 years. And it should be inbuilt in the roaster , that the same chairperson should not have second term of office in the same organization consecutively for two terms.
II. Other members of the committee
a). Clause 2(i)List of third party is too exhaustive, including doctors, Psychiatrists etc . This list is so general and open ended that it dilutes the essence of involving an independent expert who would ensure fair enquiry. SC in Vishaka and others V. State of Rajasthan and others very unambiguously had stated category and the reasons for identifying the category as follows:
“Further, to prevent the possibility of any undue
pressure or influence from senior levels, such Complaints Committee should involve
a third party, either NGO or other body who is familiar with the issue of sexual
harassment.”
Therefore the above third party list should be revised, including categories which are familiar with the issues of sexual harassment.
b). Given the socio-economic and cultural background of our society and of the women work force in particular, trust of the victim in the committee is a prerequisite for making the Act effective on ground . The justice should not only be done but seem to have been done as well. An independent chairman and a member will convey the distinction and independence of the committee from the management/employer but a real comfort level for a victim to confide of her harassment at workplace will be ensured, if one of them is represented in the committee, who speaks their language, appreciates internal/social/eco/cultural circumstances and they have a comfort zone of communication. Therefore, the third member of the internal committee should be a nominated by the victim for her case. The victim can nominate her representative from the employees of the concern organisation or from the list dawn by the district officer for chairperson and of the third party member.
Every defendant has a right for a fair trial. Therefore the fourth member should be nominated from the defendant who can nominate his representative from the employee of the organisation or from the list drawn by the District Officer.
III. Observation regarding local complaints committee Clause 12 (2)(a) selected from….
a). Clause 12 (2)(a) provides for selection /appointment of the chairperson but it is ambiguous about the procedure of selection as well. Therefore the mentioned clause of the Bill needs reconsideration. One way to imbibe more trust in the system is to design a system, which vests minimum discretionary power in any authority. Any women candidate, whose name qualifies in the list prepared for chairperson by the district officer, should be illegible for the post. A roaster should be followed for the appointment of the chairperson to the local complaints committees. The tenure for the chairperson so elected should be minimum 3 years. Roaster should be so designed that no chairperson has a consecutive two terms.
b). Similarly Clause 12 (2)(b) should substitute elected for selected. And in Clause 12 (2)(c) the clause [OR] needs to be reconsidered for [AND].i.e there should be one representative each from employer and employee.
c) Clause 13(h) provides discretion to District Officer for not to entertain the case directly by local committee where the allegations of sexual harassment is against the employer. This needs reconsideration, subject to the reasons submitted by the complainant as to why the internal committee may not deliver justice. District Officer have to record the reasons for allowing or disallowing the case directly to the local committee.
3. The enquiry procedure is time bound and confidential.
The time bound procedure should clearly be written and displayed at places where the workers can see in both hindi as well as in local language.
I. The procedure:
1. Clause 17 should also include a category where, a misconduct of the nature described in the Act takes place with a women employee in presence of another women employee and who finds the act offensive and humiliating, she can compliant independently under this Act, even though such an act was not directly targeted at her.
2. Clause 21(1) It should be made mandatory on the part of the employer to report offences, falling under the preview of IPC or any other law, which have been reported in his premises, keeping in line with the SC guidelines in Vishaka and others V. State of Rajasthan
“Criminal Proceedings :
Where such conduct amounts to a specific offence under the Indian Penal Code
or under any other law, the employer shall initiate appropriate action in accordance
with law by making a complaint with the appropriate authority.”
3. Clause 30: Enquiry to be completed within 90 days….period 90 days from the date on which the enquiry is commenced. Considering the sensitivity of the issue and the ordeal of the victim, the 90 days period should be counted from the day she gives her complaint.
4. If the misconduct is established, the punishment awarded should be sufficient to deter others and is to be implemented within specified time. Follow up Actions are done timely.
1. The punishment once awarded should be executed within a specified time, taking 7 days to be the maximum limit.
2. If the complaint is proven and punishment is awarded, the same should be displayed or circulated as a memo in the workplace,since most of theses misconducts become a public knowledge but the punishments are very silent affairs, therefore, publishing punishment would act as a deterrent to many fence sitters.
3. SC in Vishaka and others V. State of Rajasthan and others had laid down an effective monitoring mechanism, which can be developed further to achieve the aims of the Act. SC in above case had said “ The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.”
Annual reports will provide an effective monitoring mechanism and a national database on the issue which may give a dynamic insight of the issue and help drawing future policies, therefore, the Internal Complaints committee and Local Complaints committee must submit an annual report to Ministry of Women and Child welfare, of the complaints and the actions taken by them. It should be within the preview of the above ministry to take appropriate actions against issues like the procedural lapses, and gross miscarriage of justice etc. delivered by these committees irrespective of the fact that, the organization concern,falls under any other ministry. The annual reports submitted by various complaint committees should be studied and complied annually, by the Ministry of Women and Child welfare.
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