The Sexual Harassment of Women (SHW) at Asian College of Journalism (Prevention, Prohibition and Redressal) Regulations
The following regulations have been framed for the ACJ by Justice K. Chandru, retired Judge of the Madras High Court, and come into effect from July 3, 2018
Objects & Reasons of the 2013 SHW Act :
The Constitution of India embodies the concept of equality under articles 14 and 15 and prohibits discrimination on grounds of religion, race, caste, sex or place of birth or any of them.
Article 19(1)(g) gives the fundamental right to all citizens to practise any profession, or to carry on any occupation, trade or business.
This right pre-supposes the availability of an enabling environment for women, which is equitous, safe and secure in every aspect.
Article 21, which relates to the right to life and personal liberty, includes the right to live with dignity, and in the case of women, it means that they must be treated with due respect, decency and dignity at the workplace.
Article 11 of the Convention on Elimination of All Forms of Discrimination (CEDAW), to which India is a party, requires State parties to take all appropriate measures to eliminate discrimination against women in the field of employment.
In its General Recommendation No. 19 (1992), the United Nations Committee on CEDAW further clarified that equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment at the workplace.
India’s commitment to protection and promotion of women’s constitutional rights as well as respect for its obligations under various international treaties is unequivocal.
The Supreme Court of India in the case of Vishaka & Ors. v . State of Rajasthan & Ors. [1997 (7) SCC 323], also reaffirmed that sexual harassment at workplace is a form of discrimination against women and recognised that it violates the constitutional right to equality and provided guidelines to address this issue pending the enactment of a suitable legislation.
The ACJ is committed to providing a place of work and study free of sexual harassment, intimidation or exploitation. The Parliament enacted Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and necessary rules have been framed. Apart from this enactment, amendments have also been made to the Indian Penal Code, 1860 wherein Section 354A and 354D has been introduced to make sexual harassment as a penal offence. Even earlier Section 509 provides punishment for a person who uses a word, gesture or act, intended to insult the modesty of a woman.
A victim of sexual harassment has two courses open in having her grievance redressed. She can either give a complaint to the Internal Complaints Committee or give a police complaint relating to the penal offence.
II. Penal Offences:
The nature of the offence and punishment that can be imposed as provided under Section 354A, 354D & 509 of the Indian Penal Code are as follows:-
354A : Sexual harassment and punishment for sexual harassment
A man committing any of the following acts—
physical contact and advances involving unwelcome and explicit sexual overtures; or
a demand or request for sexual favours; or
showing pornography against the will of a woman; or
making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
354D : Stalking.
1. Any man who—
- follows a woman and contacts, or attempts. to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
- monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that—
- i. it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
- ii. it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
- iii. in the particular circumstances such conduct was reasonable and justified.
2. Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.’
509. Word, gesture or act intended to insult the modesty of a woman.—
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word
or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with
simple imprisonment for a term which may extend to one year, or with fine, or with both.
III. What is Sexual Harassment?
Section 2(n) of the SHW Act 2013 defines “sexual harassment” it as follows:-
Section 2(n) : “Sexual Harassment” includes the following unwelcome acts or behavior (whether directly or by implication):-
(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;
IV Which is a “workplace”?
Since the intention of the SHW Act was to prevent sexual harassment at workplaces, the term “workplace” is also defined under section 2(o) which is as follows:-
Section 2(o): “ Workplace” includes:-
(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 financial activities 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 by the employer for undertaking such
(vi) a dwelling place or a house;
V. Who is an “aggrieved woman”?
Section 2(a) defines an “aggrieved woman” as follows:-
Section 2 (a) : “aggrieved woman”
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;
(ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;
VI. Who is an “employee”?
Section 2(f) defines the term “employee” and section 2(e) defines the term “domestic worker” which are as follows:-
Section 2(f): “employee”
employee means a person employed at a workplace for any work on regular, temporary, adhoc 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 otherwise, 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;
Section 2(e) : “domestic worker”
domestic worker means a woman who is employed to do the household work in any household 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;
VII. Prevention of sexual harassment (Section 3):
(1) No woman shall be subjected to sexual harassment at any workplace:-
(2) The following circumstances, among other circumstances, if it occurs, or is present 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) interference 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.
VIII. Internal Complaints Committee (ICC):
An aggrieved woman can send a written complaint to the Chairman of the ACJ. The said complaint shall be forwarded to the Internal Complaints Committee (ICC) for an inquiry.
As required under section 4, the ACJ has constituted the ICC with the following members:-
Dr.Nalini Rajan – Presiding Officer
Ms.Geetha Ramseshan – Member
Mr.Devadas Rajaram – Member
Ms.Ramya Kannan – Member
(Note : In case of any complaint against any faculty member of the ICC is received, the Chairman of ACJ will reconstitute the Committee accordingly)
The quorum of ICC is minimum 3 members including the Presiding Officer.
IX. Complaint of sexual harassment:
Section 9 of the SHW Act, 2013 as well as the rules framed by the central government provides the person, who can file a complaint with the ICC and it
is as follows:-
Section 9 : Complaint of sexual harassment :-
- Any aggrieved woman can give a complaint in writing to the ICC.
- The complaint should be within a period of 3 months from the date of incident and if it is a series of incidents, then 3 months from the date of the last incident.
- The ICC can extend the time limit by another 3 months if it is satisfied that the circumstances prevented her from filing the complaint.
- If the aggrieved woman is disabled (physical or mental) or in case of death, her legal heir or any such person authorized can file the complaint.
As per Rule (6 ) framed by the Central government, the complaint can be made by the following:
(i) Where the aggrieved woman is unable to make a complaint on account of her physical incapacity, a complaint may be filed by:-
(a)her relative or friend; or
(b) her co-worker; or
(c ) an officer of the National Commission for Women or State Women’s Commission; or
(d) any person who has knowledge the incident, with the written consent of the aggrieved woman;
(ii) Where the aggrieved woman is unable to make a complaint on account of her mental incapacity, a complaint may be filed by:-
(a) Her relative or friend; or
(b) A special educator; or
(c) A qualified psychiatrist or psychologist; or
(d) The guardian or authority under whose care she is receiving treatment or care; or
(e) Any person who has knowledge of the incident jointly with her relative or friend or a special educator or qualified psychiatrist or psychologist, or guardian or authority under whose care she is receiving treatment or care;
(iii) Where the aggrieved woman for any other reason is unable to make a complaint, a complaint may be filed by any person who has knowledge of the incident, with her written consent;
(iv) where the aggrieved woman is dead, a complaint may be filed by any person who has knowledge of the incident, with the written consent of her legal heir.
Section 10 of the SHW Act, 2013 provides scope for bringing about conciliation between the parties.
- The ICC before making an inquiry or at the instance of the aggrieved woman can take step to settle the matter between her and the respondent through conciliation.
- No monetary settlement shall be the basis of conciliation.
- The ICC shall record the settlement and send it to the employer.
- The aggrieved woman and the respondent are entitled for copies of the settlement.
- If matter is settled, no further inquiry shall be held.
XI. Inquiry into Complaint:
Section 11 of the SHW Act, 2013 and the relevant rules provides the nature of inquiry, powers of the ICC and the scope for action by the employer and they are as follows:-
- In case the accusation is against an employee, the inquiry shall be held in accordance with the service rules of the ACJ.
- The local committee in case of a prima facie complaint by a domestic worker shall forward the complaint within 7 days to the local police for registering the complaint under Section 509 Indian Penal Code [Section 509 IPC-Word, gesture or act intended to insult the modesty of a woman] or any other appropriate section.
- If the settlement was not complied with and on complaint by the aggrieved woman, the ICC can proceed with the inquiry on the original complaint.
- In case the aggrieved woman and the accused are employees of the employer, during the inquiry they shall be given reasonable opportunities of being heard.
- They will also be given copies of the report to make representation against the findings to the committee.
- Inquiry shall be completed within 90 days.
Procedure prescribed under Rule 7 framed by the central government for conducting inquiry:
- The complainant shall submit 6 copies of complaint with document along with list of names and addresses of the witnesses.
- The ICC shall send one copy of the complaint to the respondent within a period of 7 working days.
- The respondent shall file his reply together with list of documents, names and addresses of witnesses within 10 working days from the date of receipt of documents and complaint.
- The ICC shall make an inquiry in accordance with principles of natural justice.
- If the complainant or the respondent fails to appear 3 consecutive hearings without sufficient cause, then the ICC can give ex-parte decision on the complaint.
- Before terminating the proceedings 15 days notice shall be given to parties.
Powers of the ICC (Section 11(3)) :
For the purpose of making an inquiry, the ICC shall have the same powers as are vested in a civil court when trying a suit in respect of the following matters,:—
(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.
Pending inquiry – What action can be taken? (Section 12) :
During the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee 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 up to a period of three months; or
(Note 1: The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled)
(Note 2: On the recommendation of the ICC, the employer shall implement the recommendations of the ICC)
XII. Reliefs that can be given by ICC:
The reliefs that can be given to an aggrieved woman, the nature of inquiry report by ICC, punishment that can be recommended, punishment for false complaint and compensation that can be awarded by the ICC are as follows:-
(a) restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer;
(b) restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved woman.
(Note : As per Rule (8) framed by the central government)
- The ICC shall provide its finding to the employer within 10 days from the date of completion of the enquiry and give copies to the parties.
- If the ICC finds the allegation against the respondent not proved, then it can recommend to the employer that no further action is required
- If the ICC finds the allegations are proved, then it can recommend to the employer.
- (a) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable or
- (b) to deduct, notwithstanding anything in the service rules applicable, 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.
- The ACJ shall act on the recommendation within 60 days.
The ICC can recommend the following punishments:
- Written apology
- Reprimand or censure
- withholding of promotion
- withholding of pay rise or increments,
- terminating from service
- undergoing a counseling session
- carrying out community service.
(Note : As per Rule (9) framed by the central government)
Punishment for false or malicious complaint and false evidence (Section 14):
If the ICC finds that the allegation against the respondent is made maliciously or knowing it to be false or by any forged or misleading document, it can recommend to the employer action against the woman complainant in accordance with service rules.
(Note 1: A mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant)
(Note 2: The malicious intent on part of the complainant shall be established only after an inquiry any action can be recommended).
Compensation (Section 15) :
The ICC shall take note of the following circumstances for ordering the sums to the paid to the aggrieved woman:-
(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.
XIII. Penalty and non-publication of the proceedings (Section 16 & 17):
The nature of complaint and identity and address of the aggrieved woman or respondent or witnesses shall not be published.
Where any contravention penalty in accordance with the service rules shall be made against the person concerned.
(Note : Under Rule (12) framed by the Central Govt, the employer shall recover Rs.5000/- as penalty from the person found guilty for publication).
XIV . Appeal against the Report of the ICC (Section 18) :
An appeal to the competent court or tribunal (established under the rules) can be filed by aggrieved persons in case:-
(a) the ICC finds the complaint not established
(b) the ICC finds the complaint was established
(c) the ICC recommends action for giving false complaint
(d) penalty imposed for publicizing the proceedings.
The notified Appellate Authorities in Tamil Nadu
Under Rule(11) framed by the central government, the Appellate Authority under Section 2(a) of the Industrial Employment (Standing Orders) Act 1946 has also been notified as the appellate authority for the purpose of this Act. The Tamil Nadu government by G.O.Ms. No.224 (Labour & Employment) Department dated 11.12.2007 has notified the various Labour Courts as the appellate authorities under the IESO Act. Therefore the very same Labour Courts are also Appellate Authorities under this Act.
XV: Complaints against students by students:
The entire scheme of the SHW Act, 2013 is based upon the misbehavior of an employee against another person and the punishment (in the nature of disciplinary action) has to be imposed by the employer. It did not contemplate a situation in an educational institution where a student gives a complaint of sexual harassment against another fellow student or students. In such cases the remedy opened to an aggrieved student is either filing a police complaint or his complaint will be dealt by the institution under the normal conduct rules applicable to the students of that institution alone.