The Law
Does India have a special law against sexual harassment at the workplace?
Yes, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Also called the Sexual Harassment Act (SHA).
Then, what are the Vishaka Guidelines?
In 1997, the Supreme Court laid out a set of guidelines in the landmark Vishaka vs State of Rajasthan case, which used to be the law on sexual harassment at the workplace till the SHA came into effect in 2013. The basic principles of the Vishakha Guidelines form the basis of SHA.
Behaviour That Constitutes Sexual Harassment
What constitutes sexual harassment at the workplace?
- Touching and other unwanted physical contact, such as kissing or fondling.
- Demanding or asking for sexual favours – this could be verbal, or through email or text message, or even of an implied nature, such as indicating that not providing a sexual favour could adversely impact a woman’s career, or that doing the favour would be beneficial to her.
- Saying something that’s sexual in nature, such as overt sexual innuendos, offensive jokes, remarks about a person’s sexual orientation or sex life.
- Showing someone pornography.
- Any other unwelcome physical, verbal or non-verbal conduct with sexual overtones.
- Creating a hostile work environment for a woman, in connection with any of the above.
Would flirting in the office count as sexual harassment?
Yes. If the flirting is without your consent and involves sexual comments that make you uncomfortable, it counts as sexual harassment. The legal position is that it’s not the intent, but the impact that constitutes sexual harassment.
Does eyeing or staring at someone count as sexual harassment?
Staring at a woman in the workplace could fall within the concept of unwelcome‘non-verbal conduct’ with sexual overtones. The moment a woman indicates that this behaviour is unwanted, repetition of such behavior would be considered sexual harassment.
The courts have awarded compensation in cases where it was alleged that the complainant had been subjected to vulgar, lewd comments and “elevator eyes”.
Can hugging, or holding a person by the shoulder or waist, or any such conduct also be considered sexual harassment?
Yes, any unwanted physical contact at a workplace would be considered sexual harassment.
Is it sexual harassment if someone makes a sexually charged comment to someone else about me, but doesn’t say this to me?
No, unfortunately. The comment has to be made to the complainant for this to constitute sexual harassment.
Can a man file a complaint of sexual harassment against a woman?
The Sexual Harassment Act only deals with sexual harassment against a woman. However, individual organisations may allow complaints on a gender-neutral basis according to their own policies, though these would not proceed under the Act.
The ‘Workplace’
What do you mean by ‘workplace’? Does this mean anything that happens to a woman outside her office would not qualify?
No, not necessarily. The ‘workplace’ doesn’t just mean the precincts of an office (or, when it comes to domestic workers, the dwelling place or house they work at), but also covers any place visited by an employee arising out of or during the course of their employment.
So, if a journalist goes to cover an event and gets sexually harassed at the external venue, she can still make a complaint of sexual harassment since she had gone there in the course of her employment.
Do I have to be a permanent employee of an organisation to make a complaint of sexual harassment?
No. A complaint of sexual harassment can be made by any woman, whether an intern, trainee, ad-hoc or part-time employee, or even a visitor. This means that you can file a complaint of sexual harassment before the Internal Committee (IC or ICC) of the respondent’s employer, regardless of your connection to that organisation, as long as the alleged sexual harassment takes place in a context involving the respondent’s employment.
This means that a student can file a complaint against a teacher, patient against a doctor, and so on.
Can I make a complaint about a fellow employee regarding any behaviour that has taken place outside the workplace – which has no direct connection to our employment?
This will depend on the facts and circumstances – each case needs to be considered carefully. If the harassment has taken place outside the workplace but the relationship between the complainant and respondent stems from the workplace (for instance, someone who only knows you from the office who then stalks you), it may fall within the purview of the SHA.
However, if you consent to meeting a fellow employee outside the office, on a personal basis, without any connection to your work, this would not count as being at the workplace.
What happens if we are in a relationship?
If you are in a relationship which is consensual, any voluntary, consensual acts are not sexual harassment as they are not unwelcome.However, within the relationship as well, if something non-consensual takes place, it could amount to sexual harassment (see the answer above).
And if the relationship ends (whether on good or bad terms), the respondent cannot insist that the same be continued – persisting to do so would amount to sexual harassment.
The Complaints Committee
Who is supposed to deal with complaints of sexual harassment? Do I need to approach HR or management?
Under the Sexual Harassment Act, every organisation with more than 10 employees needs to have an IC, to which complaints of sexual harassment at the workplace can be made. You do NOT need to inform your supervisor, or the head of your organisation, or your HR.
If you wish to make a complaint to an organisation with less than 10 employees, or against someone for whom you work in any other capacity, or the employer, you can approach the Local Committee (LC/LCC) which has been constituted at the district-level by the government.
Who is supposed to be part of an Internal Committee?
An Internal Committee is supposed to be made up of at least four members:
- A Presiding Officer who is a woman employed at a senior level at the workplace;
- At least two members from amongst other employees who should have experience in women’s issues or have some legal knowledge;
- At least one external member who can either be from an NGO or another organisation that works for women’s issues, or who has expertise in sexual harassment matters (like a lawyer).
Members of the IC are appointed for a 3-year period by an employer keeping in mind their seniority, functional balance, record on gender equality, maturity and approachability.
Organisations are required to issue circulars to employees and prominently display in the workplace, a list of the members of the IC, as well as their contact details if anyone wishes to approach them.
How can I know the Committee will be fair, or that the harasser cannot influence the Committee?
The IC has to conduct the investigation according to the Handbook on Sexual Harassment of Women at Workplace published by the Ministry of Women and Child Development. The IC is supposed to observe many of the tenets an actual court has to, including principles of natural justice, equity and fair play, while also maintaining utmost confidentiality. It is the duty of the IC to ensure that no retaliation or vindictive action is taken against either the complainant or the respondent.
Crucial to the impartial functioning of the IC is the presence of the external member, who can ensure objectivity, and can be contacted individually in the event of any concerns the complainant may have over the fairness of the investigation.
Making a Complaint
How do I make a complaint to the Internal Committee?
Complaints need to be made in writing to the IC, normally to the Presiding Officer, though they can also be submitted to any of the IC’s members on paper, or even via email.
A formal complaint needs to contain a description of the incident(s), including relevant dates, timings and locations, the name of the respondent, and what the working relationship is between the alleged harasser and the complainant. Six copies of the complaint need to be submitted along with supporting documents and the names and addresses of the witnesses.
If the complainant wants, a member of the IC can help them draft the complaint and submit it. This could be extremely important for illiterate complainants or even complainants who are unsure how to make their complaint.
If the complainant can’t submit the complaint herself, because of physical or mental incapacity, it can be submitted on her behalf by her relatives or friends, or certain specified persons (see the table below). If she is unable to file the complaint for any other reason, it can be submitted by any person who knows about the incident, with her written consent.
Another new option which now exists for a complainant is to file a complaint online using the Women and Child Ministry’s SHe-box tool. On receipt of the complaint, government authorities will forward the complaint to the relevant committee, and ensures an official record which can be used to make sure all time frames and requirements are complied with, and allows the status of the complaint to be tracked.
How much evidence do I need when making a complaint? Do I need to have screenshots, recordings, etc?
It is not essential to have any evidence beyond your own statement, and failure to produce such evidence is not detrimental to your case. Having said that, the more evidence you are able to submit to support your complaint, the better – remember that the respondent will also try to submit evidence to support their case. Screenshots, recordings, testimony of friends who can confirm that you were upset or distressed at the time, would all be useful.
Is there a time limit within which a complaint must be filed?
A complaint generally needs to be filed within three months from the date of the alleged incident of sexual harassment (in case it involves a series of incidents, the most recent incident needs to be cited). This can also be extended to six months, if the IC acknowledges the circumstances which prevented her from doing so.
Can I approach the police?
You can always approach the police with a complaint of sexual harassment, the Sexual Harassment Act cannot and does not take that away from you. The two are not mutually exclusive – you can file a complaint with the police and with your IC, the latter is a civil remedy, not a criminal one.
Section 354A of the IPC specifically deals with sexual harassment (not just at the workplace), and depending on the conduct, you could also file a complaint with the police for stalking (354D), voyeurism (354C) or graver forms of assault like rape (376).
The Inquiry
What is the inquiry process?
The IC is supposed to conduct an inquiry in which it assesses the complaint, allows the respondent to defend themselves and evaluates any evidence submitted by the parties. They will also get witnesses for either side to provide statements.
An important thing to note is that under the Sexual Harassment Rules, neither complainant nor respondent is allowed to be accompanied by a legal practitioner to represent them in their case at any stage of the proceedings. This doesn’t mean you can’t get legal advice or assistance – just make sure you have done so prior to attending any proceeding.
Let’s say I’ve made a complaint, and the inquiry is ongoing. Would I be required to attend office while the process is underway?
This is up to you. During the pendency of the inquiry, the organisation has to ensure, that the respondent cannot be responsible for supervising any of your work. Similarly, if the complaint relates to an educational institution, the respondent cannot supervise any academic activity of the complainant.
If you are not comfortable working in the organisation during the inquiry process, you are entitled to up to three months’ paid leave (separate from other leave entitlements). If you choose to come in to work, you can request that you and the respondent shouldn’t be in the same workplace.
Is there a time limit within which the inquiry has to take place?
90 days. Any recommendations of the Committee have to then be implemented within 60 days.
What happens if I am unsatisfied with the inquiry or its result?
You can file an appeal against the Committee’s decision (which could be on the basis of deficiencies in the process) within 90 days before the relevant appellate authority.
What happens to the person accused of harassment while the inquiry is ongoing? And what action can the organisation take against them?
During the course of the inquiry, the respondent can be directed to go on leave if there is a concern that they will try to influence the inquiry. Once it is completed, depending on the findings of the inquiry, they could be fired and made to pay compensation to the complainant. The IC can also direct them to issue an apology, block their promotions or dock their pay.
The IC can also forward complaints on to the police to investigate them for offences under the IPC.
Can an IC investigate allegations coming out online through MeToo? Can it be initiated without a formal written complaint?
If one strictly follows the terms of the Sexual Harassment Act, a formal written complaint is required before an IC can investigate allegations against an employee. If one were to take a purely formalistic view, allegations that have come out against an employee online cannot be investigated.
However, some pro-active employers take suo motu cognisance of reports of sexual harassment made on social media if the respondent/alleged harasser is working in the organisation at the time.
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