The Protection of Woman against Sexual Harassment at Workplace Bill, 2007 – Drafted by Ministry of Women and Child Development
II.Constitutional Mandate and Law on Prevention of Sexual Harassment at Workplace
A. Constitutional Approach
2.1 This law is to be considered keeping in mind the large number of working women in our country and various problems faced by them and towards creating a just and secure working environment.
2.2 Constitution affords equal rights of work, life and liberty to all [Articles 14, 19(g) & 21]. The same, however, have been constantly undermined in the cases relating to sexual harassment at workplace, be it domestic, office or factory. Art. 15(3) empower the legislature to make special laws for woman, which has been done in this case.
2.3 Directive Principles of State Policy [Articles 39(a), 39(e), 41] enshrined in the constitution, foster the concept of right to work and prevention of exploitation on economic grounds.
2.4 One of the Fundamental Duties as enshrined in Art. 51A (e) of the constitution is to renounce practices derogatory to the dignity of women.
2.5 It is to be noted that men also face sexual harassment at workplaces and thus, the law can be more gender neutral if it includes males as aggrieved party as well.
2.7 Indecent Representation of Women (Prohibition) Act, 1987 is another tool in the hands of victims to seek justice.
C. Case Laws
2.8 Vishaka v. State of
2.9 R D Bazaj v. KPS Gill
2.10 Apparel Export Promotion Council v. A K Chopra
S Verma, Principal, Delhi Public School Society v. National Commission for Women AND Jayshri Kannan and ors. V. U S Verma and ors. MANU/DE/2639/2009
S Chitra v. The Director of Fire Services MANU/TN/2542/2009
2.13 M K Sharma and Anr. v. Sangeeta Gupta and Ors. AND Navneet Kaur v. Sangeeta Gupta MANU/DE/0304/2009
2.14 Ms. Gloria Kumar v. Central Information Commission MANU/CI/0318/2008
2.15 G Pushkala v. High Court of Judicature of
rep. by its Registrar General, K. Muthukumaraswamy, Deputy Registrar Tribunal CLAA MANU/TN/8512/2007 Madras
2.16 Samridhi Devi v. Union of
and Ors. MANU/DE/1953/2005 India
III. The Protection of Woman against Sexual Harassment at Workplace Bill, 2007
3.1 Statement of Objects and Reasons (SOR) carry limited interpretational value. [ State of
v. Subodh Gopal, AIR 1954 SC 92) West Bengal
3.2 The long title has interpretative value [Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369]
3.3 The Long Title of the Bill :
to provide for prevention and redressl of sexual harassment of women at workplace and for matters connected therewith or incidental thereto.
3.4 There is no legislative motivation for acknowledging or redressing sexual harassment faced by men at workplaces.
3.5 The Act would come into force only after government notification.
i) Section 4
3.6 As per this section 4(2)(a), employer is supposed to constitute a committee with a senior level women official as the Chairperson. In case of non-availability, Chairperson is to be appointed from a sister organisation or a non-governmental organisation. This section has 2 problems : -
a) Many of the small scale organisations do not have sister organisations working with them. In such a case, only option available is to appoint the Chairman from a NGO. Now, this would be presupposing that some or the other NGO is working at every nook and corner of the country. A viable option here is making woman police officers also eligible for the post of Chairman.
b) Chairperson can be appointed from a NGO, which is not working in the area where the office is situated.
Also, since the Chairperson is entitled to some remuneration, is the post of Chairperson of ICC in a governmental organisation qualifies as office of profit?
ii) Section 9
3.7 As per Section 9(3) enquiry should be completed within 90 days. What were the considerations while deciding the time limit? Isn’t it excessive?
iii) Section 11
3.8 Section 11(4) proviso : Provided that where the employer or the District Officer is not in agreement with any conclusion arrived at or recommendation made by the committee or the Local Committee, he may alter the conclusion or recommendation in consultation with the committee or the Local Committee, as the case may be, and the parties concerned in such manner as may be decided in the consultation and shall act upon the recommendation within ninety days of completion of the consultation.
It shall be specified whether consultation entails concurrence as well. If not, then the whole purpose of the law would be defeated as the employer would have the final say in every case.
We propose proviso to 11(4) should read as : Provided that where the employer or the District Officer is not in agreement with any conclusion arrived at or recommendation made by the committee or the Local Committee, he may alter the conclusion or recommendation with the permission of the committee or the Local Committee, as the case may be, and the parties concerned in such manner as may be decided in the consultation and shall act upon the recommendation within ninety days of completion of the consultation.
iv) Section 14
3.9 Section 14 oust the applicability of RTI Act. Few questions : - Can a legislation enacted after enactment of RTI Act be out of its purview? Will it lead to compromise on transparency?
Sec. 22 of the RTI Act gives it an overriding effect on any other law. It reads as follows :
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
The information prohibited under Section 14 of the Bill can be denied under Sections 8(e) and 8(j). Thus, there is no apparent conflict between both the laws. Under RTI, however, there are some exceptions to Sections 8(e) and 8(j), mentioned within the section themselves. These exceptions are not provided in the Bill, and thus to that extent the Bill is inconsistent with RTI.
3.10 The Bill contains no provision of mediation or conciliation. Sometimes, a warning is more effective than punishment.