Human Rights

Much criticised, conciliation is not such a bad option to settle sexual harassment complaints

Tenzin Namdol is part of the faculty on as a method for resolving complaints of sexual harassment at the workplace has come in for much criticism. The Sexual Harassment of Women at the Workplace (Prohibition, Prevention and Redressal) Bill, 2010 (“2010 Bill”), which offered this option in Section 10, was criticised for instance, in the Report on the Committee on Amendments to Criminal Law, 2013 chaired by the late Justice J.S. Verma (“Verma Committee Report”) and the report by the Standing Committee on Human Resource Development, 2011 (“Standing Committee”). Despite this, the Sexual Harassment of Women at the Workplace (Prohibition, Prevention and Redressal) Act, 2013 (“Sexual Harassment Act”) retained the provision with one minor change.

Criticism for conciliation as a method of resolving sexual harassment complaints

Monetary compensation is the most common conciliation settlement. Section 10 of the Bill, by not excluding monetary compensation, indirectly created a legal provision that permitted the accused to bargain against punishment. The Standing Committee pointed out that there was a real danger of conciliation becoming a tool for ‘legal extortion’ and that ‘monetary settlement’ trivialised the crime of sexual harassment.

The provisions were also not clear on many aspects. There was no distinction between a minor offence and a major offence. An apology may be acceptable in case of a minor offence but not for more serious offences. The Standing Committee reported that such uncertainty could encourage repeat offending.

There were also concerns about the high possibility of misuse. Employers could misuse the provision to coerce the aggrieved woman into settling or even cause her to withdraw her complaint.

WorkSafeAntiSexualHarassmentThe Verma Committee Report, which declared the entire Bill to be unsatisfactory, said that conciliation was “only another way of undermining a woman’s dignity” and that it would not help achieve the object of the Bill, which was to ensure that “not even an imperceptible influence of any gender bias is felt against the female workforce either in the performance of their duties or in their career progression”. Such a procedure would only add to “the myriad pressurizing influences that are brought to bear upon women in our society may act to disable her from pursuing a valid complaint.”

Justifications for retaining conciliation

The Bill had in fact, specifically provided that the complaints committee could consider settling the matter through conciliation only at the request of the aggrieved woman. So it had not overlooked the need to safeguard an aggrieved woman’s right to seek justice. An aggrieved woman may settle the matter through conciliation instead of the inquiry process by the Internal Complaints Committee, only if she wants to.

Does conciliation trivialise the offence of sexual harassment?
Does conciliation trivialise the offence of sexual harassment?

As far as serious offences go, victims would not opt for conciliation, which is only an option before the aggrieved woman. The Criminal Law Amendment Act, 2013 defines sexual harassment as a crime, so the victim can resort to filing a complaint under the Indian Penal Code, 1860 for serious offences. Employers are also bound by law to provide all assistance to aggrieved women if they want to file a criminal complaint. Further, under the proviso to Section 11(1), even after a settlement by conciliation, an inquiry can be initiated if the respondent has not complied with the terms of the settlement. Clearly therefore, there are safeguards to protect an aggrieved woman who has the option to settle the matter through conciliation from undue pressure or harassment from her employer. Finally, the only change to Section 10 when the Sexual Harassment Act was enacted in 2013 was the insertion of a proviso clearly stating that monetary settlement cannot be made the basis of conciliation, thereby keeping all the concerns of misuse and trivialisation at bay.

Thus, even though conciliation was initially seen as an inappropriate means of settling complaints of sexual harassment, the provision of the option is not all bad. It simply provides one more way of settlement along with other established procedures. Under the law, the offence of sexual harassment may even occur unintentionally. In such cases, conciliation may just be the perfect option for an aggrieved woman who prefers a quick remedy like an apology from the respondent without the hassle of inquiry reports and such.

Tenzin Namdol is part of the faculty on

Human Rights

Sexual harassment law: Concurrent jurisdictions and lack of guidance on reporting non-compliance cause confusion

SuhasaniRao_RainmakerfacultyIn December 2013, the Government of India brought into force the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, (“the Sexual Harassment Act”). The preamble of the Act recognises that sexual harassment violates a woman’s fundamental right under Articles 14 and 15 of the Constitution of India, 1950, (“the Constitution”) as well as interferes with her right to life and to live with dignity under Article 21. Considering the fact that India ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1993, this legislative protection has been a long time coming.

As you are probably aware by now, the Sexual Harassment Act protects women from sexual harassment at the workplace. While the law defines sexual harassment at Section 2(n) to encompass unwelcome behaviour of a sexual nature, it goes on to contextualise it within employment in Section 3(2). Therefore, when unwelcome behaviour of a sexual nature occurs in the context of employment (such as the exchange of sexual favours in lieu of employment benefits or the threat of the loss of employment) then it most certainly is a situation of sexual harassment at the workplace.

Some grey areas remain however, especially when it comes to implementation of the law. Let us consider a few of these issues.

The difficulty of choosing among fora with concurrent jurisdiction

The sad reality of a working woman is that she more likely than not to face sexual harassment in the context of her employment. Under this new law, women are entitled to safety in the following situations:

–  Where a female employee is working at the workplace of her employer.

– Where a female employee visits any place in the course of her employment.

– Where a woman is present in a workplace, although she is not employed there.

– Where a woman is subjected to sexual harassment in any place at the hands of a perpetrator in the course of his employment.

When a woman faces sexual harassment in the first and the third instances, (‘aggrieved woman’ under Section 2(a)), she has the right to file a complaint before the Internal Complaints Committee (“ICC”) of the organisation of her employment, presuming that the organisation employs more than ten people. In the fourth instance, the aggrieved woman has the right to file a complaint before the ICC of the workplace where the perpetrator is employed.

In the second instance, however, the aggrieved woman will have the choice to file a complaint against sexual harassment either before the ICC of the workplace where the incident occurred or before the ICC of the workplace of her employment, since both of these will exercise jurisdiction.

WomenAtWorkLet us add another dimension to this illustration. Should either of the workplaces not have an ICC already constituted, the aggrieved woman also has the option, under Sections 5 and 6, of filing her complaint before the relevant Local Complaints Committee (“LCC”). In fact, if her complaint is against the employer itself, she can, under Section 2(g), choose to take the process through an LCC rather than an ICC especially.

This is a positive step to address the problem of sexual harassment that is especially prevalent in situations involving power hierarchies between employers and employees. In fact, since it is the duty of the employer to provide a grievance redress mechanism within the organisation to address issues of sexual harassment in the workplace, this provision is the embodiment of the natural justice principle that one should not be a judge in one’s own cause.

This should now amply illustrate the permutations of several ICCs and LCCs exercising jurisdiction over the same cause of action.

In practical terms, it becomes a matter of debate and a source of unnecessary perplexity to choose the forum before which one should file a complaint against sexual harassment. The new law is silent on the issue. While the spirit of the law supports the right to justice for an aggrieved woman by enabling access to multiple fora, it becomes difficult for an aggrieved woman to make a choice without any clear and specific indication of the factors on which to base the choice, especially in sensitive situations.

In any event, the decision to make a complaint against sexual harassment must lie with the aggrieved woman alone, as Section 9 (1) of the Sexual Harassment Act clearly recognises. It is fundamental to justice to respect the choice of an aggrieved woman when it comes to complaining against sexual harassment or even, which forum to utilise since the trauma of facing a procedure of inquiry adds to an already vulnerable emotional, physical, and mental state of a victim of sexual assault. If a situation arises where several ICCs or LCCs or a combination of an ICC and an LCC may exercise jurisdiction, it should be a legislative mandate in the interest of justice for all of the concerned fora to co-operate in the inquiry process carried out by the forum chosen by the aggrieved woman.

This would bring us to another issue that requires greater clarity in operational matters – that of monitoring compliance with the law by the employers.

No guidance on how to report non-complianceWorkSafeAntiSexualHarassment

The Sexual Harassment Act, in Section 4, makes it the duty of every employer who employs more than ten people to constitute an ICC. The failure to constitute such an ICC is punishable under Section 26 of the Sexual Harassment Act. In fact, when such failure occurs for the first time, the employer can be fined up to Rupees Fifty Thousand. In case such a failure occurs for the second time, the employer could lose the license to carry out business.

However, neither the Sexual Harassment Act nor the Sexual Harassment Rules outline how to report the non-compliance of these provisions nor before which authority. This underlines a proverbial slip between the cup and the lip that disconnects the theory of the law and its practical implementation.

For instance, if an aggrieved woman chooses to file a complaint against sexual harassment before the ICC of an organisation and then finds out that such an ICC does not exist, it is unclear where she may report this lapse and how. While one reading of the law indicates that she has the choice to pursue the matter before the relevant LCC, the law does not empower an LCC to question an employer of an organisation that has not constituted an ICC as to the reasons of such non-compliance nor does the LCC currently have the legislative mandate to order an employer to constitute an ICC forthwith.

In fact, Section 25 of the Sexual Harassment Act empowers the appropriate government to call for information and inspect the records of any employer in relation to sexual harassment if it satisfied that it is necessary to do so in public interest. While this provision is a positive step in monitoring the implementation of the law, it falls short of providing concrete directions on how to report non-compliance outside of the purview of such inspections by the Government.

Especially when awareness of the law is yet to reach every corner of the country and every strata of the employment sector, a scenario where a woman is facing sexual harassment and wishes to complain against it but then has no forum to approach for redress and no known agency to turn to for guidance or assistance, may be a common one.

The government should take note of these loopholes that inhibit the smooth functioning of the law and enable more women to speak up against sexual harassment and seek justice.

(Suhasini Rao is part of the faculty on

Human Rights

Prevention just as important as redress in new sexual harassment law

Tenzin Namdol is part of the faculty on is difficult to truly redress the loss caused to a victim of sexual harassment. The offence can be seriously detrimental to the victim, emotionally and psychologically. In such situations, where the legal redress alone, including compensation, is not sufficient to provide justice to the wronged, preventive measures are just as important. Recognising this, the Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013 (“Sexual Harassment Act”) provides some measures that aspire to discourage and stop behaviour that amounts to the sexual harassment of women at workplaces. Let us have a look at some of them.

Employer’s duty to spread awareness

Employers and local governments are now obligated to spread awareness of sexual harassment and the penal liabilities for the offence under the Sexual Harassment Act. The law urges employers and the government to organise workshops and awareness programs. This includes, under Sections 19(b) and (c), the employer’s responsibility to display information at conspicuous locations around workplaces.Dissemination of information about the strict penal liabilities will act as a deterrent. If the employer does not discharge these responsibilities, the organisation can attract a penalty.

Simple complaint process, approachable ICCs


The law has also provided a simple complaint process for aggrieved women. Every workplace must necessarily have an Internal Complaints Committee (“ICC”). In addition to this, every “District Officer” must set up Local Complaints Committees to hear complaints against employers or complaints of sexual harassment where ICCs are not available. More than half the members of any ICC will comprise of women, including women who are familiar with the law or with women’s rights. The presiding officer will be a senior woman employee and the committee also has to include a woman from outside the organisation who works for the cause of women. The committee members are also bound to confidentiality. All these measures make ICCs more approachable for aggrieved women.

Record keeping

WomenAtWorkplaceIndiaAll complaints reported to the ICC have to be submitted to the local government annually. These records will definitely provide valuable information for future amendments to the legislation. This progressive feature shows that the law wants to prevent such offences, and develop a culture that allows women to be safe from sexual harassment in the workplace. The annual records will disclose much needed information on the actual incidents of sexual harassment. These reports will become the test of the actual application or implementation of the law and tell us its shortcomings and possibly some relevant tendencies, which have allowed the offence to occur. This provision will guide lawmakers to adopt more focused preventive measures through future amendments of the law.

Employer’s assistance in filing criminal complaints

The employer also has to assist the aggrieved woman if she wants to file a criminal complaint under the Indian Penal Code, 1860. Criminalising the act of sexual harassment shows how serious the law is against the offence of sexual harassment, for which no tolerance will be shown from the workplace. Criminal liability is the strongest deterrent yet in preventing men from sexually harassing women at workplaces.

With these preventive measures, women will be more confident knowing they can expect support and understanding from their employers. Aware women and a management that is legally bound to act will definitely help prevent such behaviour at the workplace.

Tenzin Namdol is part of the faculty on

Human Rights

How two definitions give teeth to new sexual harassment law

TenzinNamdolThe extensive definitions of the terms “sexual harassment” and “workplace” in the long overdue Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Sexual Harassment Act”) helps assure working women of safer workplaces and aims to protect them from harassment during routine employment.

The landmark judgment of Vishakha v. State of Rajasthan, in which the Supreme Court of India laid down the guidelines (“the Guidelines”) that governed sexual harassment of women at the workplace until the legislative vacuum was filled, adopted the definition in the Convention on the Elimination of All Forms of Discrimination of Women (“CEDAW”). It covered a broad spectrum of acts that amount to sexual harassment including any direct or implied unwelcome sexual behaviour, physical contact, asking for sexual favours, making sexually coloured remarks, and showing of pornography. Though it is a comprehensive definition and gender neutral, it was limited in application because neither the Supreme Court nor the CEDAW had defined the term “workplace”.

SexualHarassmentAtTheWorkplaceMOOC2In 2013, a committee headed by retired Justice J.S. Verma (the same judge who had laid down the Guidelines), which was tasked with finding definite solutions to the rising problem of crimes against women, published their report. It praised the definition of sexual harassment provided in the then Sexual Harassment of Women at Workplace Bill, 2010 (“Sexual Harassment Bill”), except for the criticism that the use of the word “unwelcome” resulted in ambiguity. It also appreciated the definition of “workplace” as appropriately broad for including the unorganised sector, which includes domestic workers and women working in the armed forces.

The Sexual Harassment Act, which incorporated some suggestions made by the Justice Verma Committee, used a broader definition of sexual harassment than that provided in the Guidelines and the CEDAW. The definition even includes circumstances of implied or explicit promise or threat to a woman’s employment prospects or of creation of a hostile work environment or humiliating treatment, which can affect her health or safety. This definition only applies to women harassed by men at the workplace.

The Sexual Harassment Act has meaningfully specified the act of sexual harassment by defining what comprises a workplace. The definition includes organisations, departments, offices, branches, and units in the public, private, organised, and unorganised sectors, hospitals, nursing homes, educational institutions, sports institutes, stadia, sports complexes, and even places visited by the employee during the course of employment which includes transportation taken for work.

The wide scope of the definitions of the terms “sexual harassment” and “workplace”, which acknowledge harassment at the regular work environment, immediately make the Sexual Harassment Act a more inviting and inclusive legislation for all women aggrieved by such harassment. These definitions are in accordance with the existing international law and cover and protect women in every kind of work environment.

Tenzin Namdol is part of the faculty on

Supreme Court of India

The Supreme Court of India – A tip of the hat and much to look forward to in 2014

NoticeAndStayAdityaVerma_SupremeCourtcolumn2014 promises to be a year of transformation for the Supreme Court of India. Far-reaching changes are expected on fundamental issues such as the appointment of judges and the reform of the procedure of the Court. The Gender Sensitisation and Internal Complaints Committee (“GSICC”) is also functional. How effective will it be in tackling sexual harassment at the highest court? Ten sitting judges will retire during the year. What impact will this have on lawyers and litigants?

These themes are expected to dominate discussion about the Supreme Court in 2014.

Appointment of judges

JudicialAppointmentsCommission_Composition.jpgPolitical parties appear to be unanimous in their dissatisfaction with the current ‘collegium’ system, in which judges are appointed by senior judges of the Supreme Court. The proposed Judicial Appointments Commission (“JAC”) will take views from outside the judiciary into account. The outcome of the upcoming general elections is unlikely to affect the broad political support for the proposal.

In a welcome move, the Parliamentary Standing Committee recommended the inclusion the JAC’s composition in the Constitution through an amendment, instead of it being part of a legislation. This reduces the possibility of a parliamentary majority exercising excessive control over the composition of the judiciary. This recommendation has been accepted by the government.

Of course, the standards applied for the selection of judges will be critical in assessing whether the JAC performs better than the collegium. Currently, the only standard stipulated is the ambiguous requirement that the person recommended should be “of ability, integrity and standing in the legal profession”.

Procedural reform

The E-committee of the Supreme Court, headed by Justice Madan Lokur, has initiated a number of steps to rationalise the process of filing and documentation at the Supreme Court. Highlights disclosed at a seminar at the Indian Law Institute late in 2013 include the electronic archiving of documents related to past and current litigation, a court-linked email address for each Advocate-on-Record for official communication with the Registry, and electronic filing of pleadings (‘curing defects’ may be done electronically – goodbye, white correction fluid!). Watch this space for updates on when these changes are formally notified.

Gender Sensitisation and Internal Complaints Committee

The GSICC was created last year, and has since been chaired by Justice Ranjana Prakash Desai. Part of its mandate is to address complaints of sexual harassment within the “Supreme Court of India precincts”. An internal sub-committee of three members has also been set up, comprising Ms. Indu Malhotra (Senior Advocate), Mr. L. Nageshwar Rao (Senior Advocate), and Ms. Bharti Ali (Co-director, HAQ: Centre for Child Rights).

According to the Annual Report of the GSICC, proceedings are underway in two complaints. Plans are also being made for sensitisation and publicity exercises. The next few months will provide a clearer indication of the GSICC’s efficacy, and whether the parent regulations need strengthening.

Retiring judges and new appointments


Ten (out of a maximum capacity of thirty-one) sitting judges are due to retire in 2014, and the office the Chief Justice of India will change hands twice during the year. The date of retirement acts as a kind of deadline for judges — they must deliver any pending judgments by that date. In view of the impending multiple retirements, it is possible that there will be a greater than usual output of judicial opinions in decided cases over the course of the year. New appointments will also be followed with interest, especially if the JAC starts functioning during the year.

And a tip of the hat

Delivering judgments is the most important function of the Supreme Court. No discussion today would be complete without a tip of the hat for the January 21, 2014 judgment in Shatrughan Chauhan and Another v. Union of India and Others, where unreasonable delay in the execution of a death sentence has been held to be in violation of Article 21, and a ground for commutation of the sentence. Apart from the direct impact the judgment has had on the cases of the fifteen writ petitioners before it and on death penalty jurisprudence in particular, the general observation of the Supreme Court that “retribution has no Constitutional value” in India deserves to be applauded wholeheartedly. “Punishment is not payback” should be a value that resonates throughout the criminal justice system.

P.S. Last week, review petitions were dismissed without an oral hearing against the December 11, 2013 judgement in Suresh Kumar Koushal and Another v. NAZ Foundation and Others (analysed previously on this blog here, here, and here). Will Parliament set this right?

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)