THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) BILL, 2012
Murder of Democracy and Gender Equality........
THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE(PREVENTION, PROHIBITION AND REDRESSAL) BILL, 2012 (Excerpts)
A
BILL
A
BILL
(The amended Lok Sabha version)
to provide protection against sexual harassment of women at workplace and for the
prevention and redressal of complaints of sexual harassment and for
matters connected therewith or incidental thereto.
WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;
to provide protection against sexual harassment of women at workplace and for the
prevention and redressal of complaints of sexual harassment and for
matters connected therewith or incidental thereto.
AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;
AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.
.
In this Act, unless the context otherwise requires,—
## ''Sexual harassment'' includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
(o) ''workplace'' includes—
(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional,
vocational, educational, entertainmental, industrial, health services or financialactivities including production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(v) any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.
Conciliation:
1) The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation.
(a ) transfer the aggrieved woman or the respondent to any other workplace; or
Source: http://164.100.24.219/BillsTexts/LSBillTexts/PassedLoksabha/144C_2010_LS_Eng.pdf
In this Act, unless the context otherwise requires,—
(a) ''aggrieved woman'' means—(i) in relation to a workplace, a woman, of any age whether employed or
not, who alleges to have been subjected to any act of sexual harassment by the respondent;
not, who alleges to have been subjected to any act of sexual harassment by the respondent;
ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;
(b) ''appropriate Government” means—(i) in relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly—
(A) by the Central Government or the Union territory administration, the Central Government;(
(B) by the State Government, the State Government;
(ii) in relation to any workplace not covered under sub-clause
(B) by the State Government, the State Government;
(ii) in relation to any workplace not covered under sub-clause
(i) and
falling within its territory, the State Government;
(c) ''Chairperson'' means the Chairperson of the Local Complaints Committee nominated under sub-section (
1) of section 7;
(d) ''District Officer'' means an officer notified under section 5;
(e) “domestic worker” means a woman who is employed to do the household work in any house hold for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer;
(f) ''employee'' means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwi0se, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.
falling within its territory, the State Government;
(c) ''Chairperson'' means the Chairperson of the Local Complaints Committee nominated under sub-section (
1) of section 7;
(d) ''District Officer'' means an officer notified under section 5;
(e) “domestic worker” means a woman who is employed to do the household work in any house hold for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer;
(f) ''employee'' means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwi0se, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
(o) ''workplace'' includes—
(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional,
vocational, educational, entertainmental, industrial, health services or financialactivities including production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(v) any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.
(vi) a dwelling place or a house
## "Uunorganised sector'' in relation to a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.
## (1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs or is persent in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:—
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interferes with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.
## (1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs or is persent in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:—
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interferes with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.
COMPLAINT
(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident :- Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
- Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
Conciliation:
1) The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation.
Provided that no monetary settlement shall be made as a basis of conciliation.
(2) Where a settlement has been arrived at under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.
(3) The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent.
(4) Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.
(3) The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent.
(4) Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.
(1) Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where applicable:
- Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:
- Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall made available to both the parties enabling them to make representation against the findings before the Committee.
(2) Notwithstanding anything contained in section 509 of the Indian Penal Code, the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.
(3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
(4) The inquiry under sub-section (1) shall be completed within a period of ninety days.
(3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
(4) The inquiry under sub-section (1) shall be completed within a period of ninety days.
INQUIRY INTO COMPLAINT
## (1) During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to—(a ) transfer the aggrieved woman or the respondent to any other workplace; or
b) grant leave to the aggrieved woman upto a period of three months; or
(c) grant such other relief to the aggrieved woman as may be prescribed.
(2) The leave granted to the aggrieved woman under this section shall be in addition to
the leave she would be otherwise entitled.
(3) On the recommendation of the Internal Committee or the Local Committee, as the
case may be, under sub-section (1) , the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.
## (1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed.
(c) grant such other relief to the aggrieved woman as may be prescribed.
(2) The leave granted to the aggrieved woman under this section shall be in addition to
the leave she would be otherwise entitled.
(3) On the recommendation of the Internal Committee or the Local Committee, as the
case may be, under sub-section (1) , the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.
## (1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed.
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:
- Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:
- Provided further that in case the respondent fails to pay th0e sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
## For the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall have regard to—
(a) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
(b) the loss in the career opportunity due to the incident of sexual harassment;
(c) medical expenses incurred by the victim for physical or psychiatric treatment;
(d) the income and financial status of the respondent;
(e) feasibility of such payment in lump sum or in instalments.
## Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and
media in any manner:
Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.
(a) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
(b) the loss in the career opportunity due to the incident of sexual harassment;
(c) medical expenses incurred by the victim for physical or psychiatric treatment;
(d) the income and financial status of the respondent;
(e) feasibility of such payment in lump sum or in instalments.
## Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and
media in any manner:
Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.
DUTIES OF EMPLOYER
## Every employer shall—
(a) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace
(a) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace
(b) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;
(c) cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
(d) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(e) monitor the timely submission of reports by the Internal Committe.
(d) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(e) monitor the timely submission of reports by the Internal Committe.
## (1) Where the employer fails to—
(a) constitute an Internal Committee under sub-section (1) of section 4;(b) take action under sections 13, 14 and 22; and (c) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder, he shall be punishable with fine which may extend to fifty thousand rupees.
(2) If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to—
(i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence:
Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;
(ii) cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.
## (1) No court shall take cognizance of any offence punishable under this Act or any rules made thereunder, save on a complaint made by the aggrieved woman or any person authorised by the Internal Committee or Local Committee in this behalf.
(a) constitute an Internal Committee under sub-section (1) of section 4;(b) take action under sections 13, 14 and 22; and (c) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder, he shall be punishable with fine which may extend to fifty thousand rupees.
(2) If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to—
(i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence:
Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;
(ii) cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.
## (1) No court shall take cognizance of any offence punishable under this Act or any rules made thereunder, save on a complaint made by the aggrieved woman or any person authorised by the Internal Committee or Local Committee in this behalf.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
(3) Every offence under this Act shall be non-cognizable.
(3) Every offence under this Act shall be non-cognizable.
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Conclusion: Only point which looks to me a little sane is that, "Every offence under this Act shall be non-cognizable"; otherwise the provisions of the acts looks draconian and easy to abuse. There is one clause, which says, "Punishment for false or malicious complaint and false evidence". The case of trying the girl/lady/women/female (or complainant), for "False or Malicious Complaint or False Evidence" will come only after the person wins the case. But the sections are so, prejudiced and one-sided, that once a person is dragged into it, it would be difficult for him to escape the net, even if the case is false.
In such a circumstance, I feel, it would be prudent for any employer of a firm or owner of a sole proprietorship business, or the head of a family, etc.: NOT to EMPLOY women/girls/females/ladies, in the said concern, unless it is absolutely necessary, so that headache becomes less. In case of homes, one can use the services of male maid servants, instead of the ordinary female ones; if there is a male member in the house. In this way, the potential hazards of such act, which are purely based on VOTE BANK POLITICS of Political Outfits, is minimized.
In such a circumstance, I feel, it would be prudent for any employer of a firm or owner of a sole proprietorship business, or the head of a family, etc.: NOT to EMPLOY women/girls/females/ladies, in the said concern, unless it is absolutely necessary, so that headache becomes less. In case of homes, one can use the services of male maid servants, instead of the ordinary female ones; if there is a male member in the house. In this way, the potential hazards of such act, which are purely based on VOTE BANK POLITICS of Political Outfits, is minimized.
I am really disgusted at all the political parties who responsible for passing such a gender prejudiced act, which will further divide the gap between male and females. This act is dangerous and I am sure more and more innocents will be victimized by its sections.
Source: http://164.100.24.219/BillsTexts/LSBillTexts/PassedLoksabha/144C_2010_LS_Eng.pdf
