Plugging the loopholes

If men speak up and tackle sexual harassment cases more actively, then the issue will resolve faster. It has to be a cohesive work of both men and women. Men speaking for women may inspire and improvise unreasonable ones.

For wrestlers or anyone, the ground reality is sexual harassment is globally prevalent. A peculiar fact about sexual offences is that victims are always, predominantly, women. Fortunately with changing times, women have managed to capture a substantial percentage of the working population. To tackle such crimes in India, the Prevention of Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was promulgated. It was the Apex Court that first noticed the issue and passed the celebrated judgment of 'Vishaka v. State of Rajasthan' giving guidelines. However, there were no penal consequences for not following these guidelines.

POSH Act non-compliances have serious consequences, including cancellation of registration/license of establishment, apart from monetary penalties. POSH Act inter alia talks about creating an Internal Complaints Committee (ICC) at every office of the organization, having 10 or more employees, to enquire and redress complaints pertaining to sexual harassment. Upon finding the accusations to be true, the committee may take disciplinary actions like dismissal, demotion, removal, reduction in salary, increment, stagnation or any other major/minor penalty. An aggrieved woman may also be awarded compensation for mental trauma, depending on the gravity of the offence committed. In case a woman wants to file a police complaint, she is mandatorily supposed to be supported and assisted by the company whenever required. Where employees are less than 10, the Act provides for the setting up of a Local Committee in every district by the District Officer.

The pandemic has shown different aspects of harassment, like inappropriate messages, emails etc. High Court of Rajasthan in a recent case held that even if two employees are located in different locations and that harassment happens beyond official working hours, it would be considered sexual harassment at the workplace. In a digital platform, this would be applicable. According to Madras High Court, personal feuds, misunderstandings, and not getting along with a coworker are not considered sexual harassment. The Supreme Court in its numerous cases has held interference by courts in penalties imposed by employers should be limited. Reliefs granted by the Courts must be seen to be logical and tenable. In one of the cases, Supreme Court discussed double jeopardy in a case of sexual harassment, wherein the accused was imposed with a minor penalty and was transferred to another office. Dictum held that the transfer was to keep up a good atmosphere in the office and therefore did not amount to double jeopardy.

Women must also know if ICC finds allegations to be malicious, they can be penalised too. However, it is imperative to note that just because the complaint has not been proven, it will not make it malicious, there has to be cogent proof for the same. Consensual relationships have been generally held to be excluded from the ambit of harassment unless there are facts like a promise of preferential treatment, promotion etc. Recently, the Calcutta High Court held the POSH Act to include cases of the same gender also.

Certain steps that can be taken by corporates to ensure the safety of women would include cab service and precautions for women working till late at night, which is also mandatory as per the Shops and Establishment Act of various states.CCTvs, Surveillance etc in offices is also pertinent. Compliances as per the POSH Act include conducting workshops for gender sensitization, apart from filing annual reports. During the enquiry, to make the woman feel comfortable, companies can adopt methods of transfer of employees, granting leave to women for up to a period of three months or any other relief such as the option of working from home or change in working department etc. All these are permitted as per POSH Act. As per the dicta of the Bombay High Court, names of parties in enquiry and other details are to be kept confidential.

The constitution of our country enshrines equality for all citizens, not to discriminate against citizens on grounds of gender, as well as for the State to make any special provisions in favour of women and children. Protection of Human Rights acknowledges women’s right to protection from sexual harassment.

We have come a long way. It is critical to tackle issues in every nook and corner across the globe, especially in remote areas. It is suggested that regular inspections be done in remote areas including women inspectors visiting door-to-door regularly and recording of such visits, which could be kept confidential. Stricter punishments would also create a deterrent. In fact, foreign companies prefer investing in countries that maintain ethics especially when it comes to such issues. It is absolutely vital to eradicate this filthy crime from the entire world.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal