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Bolster The Sexual Harassment Law

There is an urgent need to impose criminal penalties on companies and their management for any lapses in compliance with the Act

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Sexual harassment violates the fundamental rights of women and undermines their stature in society. The #MeToo Movement symbolises an earth-shattering response by Indian women to the rampant sexual abuse by predators, both at home and work. The movement is likely to have major ramifications for Corporate India and it is imperative that they gear up to cope with this new reality.

In 1997 the Supreme Court, in the case of Visakha vs. State of Rajasthan, AIR 1997 SC 3011, had for the first time in India laid down the guidelines for combating sexual harassment at the workplace. But it took 16 years for the Parliament to enact the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Five years later, a majority of companies and organisations in India are yet to comply even with the basic guidelines and the law. Sexual harassment goes unreported while sexual predators roam freely donning the badge of respectability.

The recent allegations against Union minister M.J. Akbar, actors Alok Nath and Nana Patekar and several other prominent personalities have unravelled the bitter truth — that 21 years after the Supreme Court’s ruling, sexual predators abound, while the law is reduced to being a paper tiger. A surveys conducted by LocalCircles revealed that 80 per cent women never report sexual harassment in India. Further, 32 per cent of the women surveyed admitted that they had observed or experienced sexual harassment at the workplace in one way or another. Besides, a 2017 survey by the Indian Bar Association states that 70 per cent women never report sexual harassment at the workplace, even though the sexual harassment law has been in force for four years prior to the survey.

One possible reason for such dismal findings could be the lax penalties provided under the Prevention of Sexual Harassment Act. Section 26 of the law imposes a paltry fine of Rs 50,000 on an employer if he fails to constitute an Internal Complaints Committee as per the law. Other than that, no civil or criminal penalties are provided for any failure in compliance with the Act.

Generally, the top management of Indian companies would prefer to suppress incidents of sexual harassment than wash dirty linen in public. Further, companies would be loath to let go of ‘talent’. Finally, just as whistle-blowers are made to pay for their courage to report, women employees who speak out too share similar fates, albeit in subtler ways.

A 2015 survey by FICCI-EY (Ernst and Young) showed that 36 per cent of Indian companies had not complied with the Prevention of Sexual Harassment Act, 2013. While the figures may have improved since then, the extremely low rate of reporting leads one to conclude that the atmosphere for reporting sexual harassment in Indian companies is not conducive enough.

The Parliament, representing the supreme will of the people, brought into being the Prevention of Sexual Harassment Act in 2013. Fast-forward to 2018, it’s time for it to look back and ascertain where it went wrong. There is an urgent need to impose criminal penalties upon companies and their management for any lapses in compliance with the Act. And this can only be effected through an amendment in the Act, which only the Parliament is competent to enact.

The ideal way to combat the rising menace of sexual harassment would be to amend Section 26 of the Prevention of Sexual Harassment Act, 2013 and impose criminal penalties on the management of workplaces, whether public or private, for any lapses in compliance with the Act, on the lines of the provisions used in Sections 15 and 16 of the Environment Protection Act, 1986 and analogous provisions of the Air and Water Acts. While Indian jurisprudence has always abided by Blackstone’s Formulation, according to which “it is better 100 guilty persons should escape than that one innocent person should suffer”, the time for change has arrived.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.

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sexual harrassment magazine 13 October 2018

Abha Singh

The writer is an advocate in the Bombay High Court

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