PUCL Bulletin, March 2005
Analysis of the bill to prevent sexual harassment of women in workplace
(Combat Law April-May 2003)
The National Commission for Women (NCW) proposed their sexual harassment of women at their workplace (Prevention) Bill, first in 2000 to which many regional groups from Mumbai working on the issue gave their feedback. The NCW proposed a redraft of the Bill, Sexual harassment of Women at their Workplace in 2003. The concerns of this Bill needs to be viewed in the context of years of experience of women’s groups in dealing with violence and sexual offenses of implementing “Vishaka” guidelines.
The major significant development and achievement on Sexual harassment at Workplace was the landmark Vishaka judgement by the Supreme Court in 1997. The Court for the first time recognised sexual harassment as a human rights violation. The Vishaka” judgement kept with India’s obligation under CEDAW and their international instruments and laid down broad based guidelines.
The spirit of “Vishaka” is very positive and makes major shifts in dealing with acts of sexual harassment at workplace. It lays a major responsibility on the employers to provide safe work environment to women employees and stresses on prevention.
The “Vishaka” guidelines provide the scope for creative application to different workplaces to make the spirit of “Vishaka” come true. Thus, it stresses on clear role of employer for both prevention and resolution of sexual harassment at workplace. The proposed Sexual Harassment Bill’s title itself remains incomplete in this regard as the Bill should provide for both resolution and prevention of sexual harassment. The Bill does not specify and clarify the preventive role of the employer although the title itself suggests prevention.
The Bill has thrown up many concerns and leaves a lot to be desired in many areas, viz., definitions, clarity of roles of different people involved in resolution mechanism, suggested punishment among others. Although the Bill has incorporated some suggestions with regard to definitions, the definition of “women” leaves out two important categories of service users such as patients and customers.
The definition of sexual harassment has a major problematic word “ “avoidable sexual advances” which can lead to offenders easily getting away with any acts as against the comprehensive definition of sexual harassment given in “Vishaka”.
The “workplace” leaves out many important workplaces such as free trade zones, special economic zones, multinational companies, offices/firms of professionals such as lawyers, doctors, chartered accountants, teachers, and many others such as religious bodies and institutes.
The past experiences show that the offenses of sexual harassment can not be effectively dealt with under criminal laws as the major challenge always in such offenses is to provide the intent of the offender combined with the lack of evidence. The Bill should prove deterrent to acts of sexual harassment and stress on prevention of such offense.
The Bill by providing punishment of imprisonment and fine leans towards criminal justice and poses the threat of denying any actual justice. The Bill needs much detailed and careful considerations of ground realities and clarity of purpose and means for achieving the purposes of prevention and resolution of sexual harassment at workplace.
Complied by Neeta Raymond, Campaign Against Sexual Harassment, India Centre for Human Rights and Law, Mumbai.
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