SEXUAL HARASSMENT

The Sexual Harassment Act is enacted provide women protection against sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment. Sexual harassment is a violation of the fundamental right of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India and her right to life and to live with dignity as per Article 21 of the Constitution.

More and more women are joining workforce, both in organises and unorganised sector so it has become absolutely necessary for government to provide them a safe and ensuring environment. This act protects every woman from any act of sexual harassment irrespective of whether such woman is employed or not.

Prevention of sexual harassment

Section 3 of the Act provides that: No woman shall be subjected to sexual harassment at any workplace.

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-

   1.       implied or explicit promise of preferential treatment in her employment; or

2.       implied or explicit threat of detrimental treatment in her employment; or

3.      implied or explicit threat about her present or future employment status; or

4.      interference with her work or creating an intimidating or offensive or hostile work environment for                 her; or

5.     humiliating treatment likely to affect her health or safety.

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Complaints Committee & Complaint Procedure

The Act makes it mandatory for every employer to constitute an internal complaints committee (“ICC”) which entertains the complaints made by any aggrieved women. The members of the ICC are to be nominated by the employer and ICC should consist of

  1. A Presiding Officer,
  2. not less than two members from amongst employees preferably committed to the cause or women or who have had experience in social work or have legal knowledge and
  • one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.

In order to ensure participation of women employees in the ICC proceedings, the Act requires that at least one-half of the members of ICC nominated by employer are women.

Local Complaints Committee:

Every District Officer shall constitute in the district concerned, a committee to be known as the “Local Complaints Committee” to receive complaints of sexual harassment from establishments where the Internal Complaints Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.

Complaint of sexual harassment

Any aggrieved woman may make, in writing, a complaint of sexual harassment at work place 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:

If 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.

Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

Conciliation

The Internal Committee or, the Local Committee, may, before initiating an inquiry and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation. No monetary settlement shall be made as a basis of conciliation.

Inquiry Into complaint

Internal Committee or the Local Committee, as the case may where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable.

When 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 be made available to both the parties enabling them to make representation against the findings before the Committee.

For the purpose of making an inquiry, 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:-—

  1. summoning and enforcing the attendance of any person and examining him on oath;
  2. requiring the discovery and production of documents; and
  3. any other matter which may be prescribed.

The inquiry shall be completed within a period of ninety days.

STOP right there woman with hand up
STOP right there woman with hand up

Action during pendency of inquiry

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—

  1. transfer the aggrieved woman or the respondent to any other workplace; or
  2. grant leave to the aggrieved woman up to a period of three months; or
  3. grant such other relief to the aggrieved woman as may be prescribed.

The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.

 

Determination of compensation

For the purpose of determining the sums to be paid to the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, shall have regard to

  1. the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
  2. the loss in the career opportunity due to the incident of sexual harassment;
  3. medical expenses incurred by the victim for physical or psychiatric treatment;
  4. the income and financial status of the respondent;
  5. feasibility of such payment in lump sum or in instalments.

Duties of employer.

Every employer shall—

  1. provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
  2. display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee.
  3. organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
  4. provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
  5. assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
  6. make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under the provisions of the act.
  7. 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.
  8. cause to initiate action, under the Indian Penal Code or any other law, 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;
  9. treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
  10. monitor the timely submission of reports by the Internal Committee.

 Committee to submit annual report

The Internal Committee or the Local Committee, as the case may be, shall in each calendar year prepare, an annual report and submit the same to the employer and the District Officer.

The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the annual report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.

 

Punishment

If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000. A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses.

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Process of Criminal Trial in India

1. Laws Governing Criminal Trial in India:

Cr.P.C. is a procedural law for conducting a criminal trial in India, it prescribes the manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, process of criminal trial, method of conviction, and the rights of the accused for a fair trial.

IPC is the main penal law of India, which is applicable to all offences, except as may be provided under any other law in India. It’s basically talks about what constitutes offence and punishment.

Indian Evidence Act is an act which deals with the production of the evidence and its evaluation. There are certain other laws, which have been enacted to deal with criminality in special circumstances.

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2. Onus of Proof in The Criminal Trial:

India follows the adversarial system, where generally the onus of proof is on the State (Prosecution) to prove the case against the accused, and until and unless the allegation against the accused are proved beyond reasonable doubt, the accused is presumed to be innocent. In certain exceptional cases, which may relate to terrorism, etc., the onus of proof has been put on the accused person, who claims to be not guilty.

3. Types of Offences:

Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfilment of certain conditions, as a matter of right under Section 436 of the Cr.P.C.

Non-bailable Offence means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non-bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guiding principle.

Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant.

Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.

  1. Investigation Process and Mechanism:

On complaint /reporting /knowledge of the commission of a cognizable offence, any police officer, even without the orders of a Magistrate, can investigate the cognizable case. [Section 156 (1) of the Cr.P.C.] b. In case of failure or inaction of a police officer to investigate a cognizable offence, a criminal complaint can be filed before a Magistrate under Section 190 of Cr.P.C., for taking cognizance of such offence, and on such complaint, the Magistrate himself can take cognizance of the case and do the enquiry, or in the alternative under Section 156 (3) of the Cr.P.C., order Police to register an F.I.R and investigate the offence. c. In case of non-cognizable offence, Police is not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the Cr.P.C.

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