Prevention of Sexual Harassment at Workplace and criminal prosecution for sexual harrasment
Prevention and Prohibition
Sexual Harassment of Women
Workplace and Criminal prosecution for
Rohit Naagpal, M.Com. LL.B. & Rahul Chopra
M/S Kaizen Lex Advisors
UN’s activity and international cooperation in the field of human rights has resulted in
covenants, conventions and several recommendations incorporating the principles
and norms of human rights. One of such conventions provides for eliminating
discrimination against women. India is a party and a signatory to this Convention on
Elimination of All Forms of Discrimination against Women (CEDAW). Article 11 of the
CEDAW requires the State Parties to take appropriate measures to eliminate
discrimination against women in the field of employment. The idea is that the
equality in employment can be seriously impaired if women are subjected to gender
specific violence, such as sexual harassment at the workplace.
The Supreme Court of India issued certain guidelines in a landmark judgment of
Vishakha v. State of Rajasthan (1997) 6 SCC 241 and has also reaffirmed that sexual
harassment is a form of discrimination against women and violates the Constitutional
right to equality. These guidelines are now replaced by the Sexual Harassment of
Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013 which has
come into effect on 22nd
The Act has been passed with an aim to provide protection
against any kind off Sexual harassment of women at
workplace and for the prevention and redressal of complaints
of sexual harassment and for matters connected therewith
and incidental thereto.
To Safeguard Women from sexual violence and protect
their fundamental right to equality under Article 14 & 15
of the Constitution and right to life and to live with
dignity under Article 21 of the Constitution and the right
to practice any profession or to carry on any occupation,
trade or business which includes a right to safe
environment free from sexual harassment.
What is Sexual Harassment ?
Section 2 (n) of the Act defines ;-
Sexual Harassment means any one or more of the following unwelcome
acts or behaviour whether directly or impliedly :
I. Any unwanted Physical contact and advances; or
II. Any demand or request for sexual favours; or
III. making sexually coloured remarks; or
IV. showing pornography; or
V. any other unwelcome physical, verbal or non-verbal conduct of sexual
NOTE : WHETHER DIRECTLY OR BY IMPLICATION
Physical Contact &
Section 2 (a) (i) & (ii)
woman of any
woman of any
Who alleges to have been
subjected to any act of sexual
harassment by the respondent
Woman of any
age, employed in
such a dwelling
place or house
Owned, Controlled wholly
or substantially financed
directly or indirectly by the
govt. or local authority or
corporation or co-
place or a
Any private organization,
establishment, society, trust,
organization, unit or service
provider carrying on
Sports institute, Stadium,
Sports complex, Games
venue for training sports
and other activities
affecting her health or
QUID PRO QUO
Promise to raise
sexual favours in
Threat to fire
even when not
Dirty jokes at
workplace where all
employees can hear
Section 2 (g)
with respect to his
One who benefits
employment of a
DUTY OF THE EMPLOYER IN WORKPLACES
In Vishakha v. State of Rajasthan, the Supreme Court directed
that it shall be the duty of every employer or other significant
persons in workplaces or other institutions to prevent or deter
the commission of acts of sexual harassment and to devise a
procedure for the settlement or prosecution of acts of sexual
harassment by taking effective steps;
EMPLOYER’S DUTIES UNDER SECTION 19 OF THE ACT
1. provide a safe working environment at the workplace including 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.
3. sensitise the employees with the provisions of the Act by organizing workshops and awareness
programmes and orientation programmers for the members of the internal committee.
4. facilitate the Internal Committee or the Local Committee , for dealing with the complaint and
conducting an inquiry.
5. provide assistance in securing attendance of respondent and witness before the committee.
6. make available such information to the Internal Committee as may be required with regard to the
7. provide assistance to the aggrieved woman.
8. cause to initiate action under Indian Penal Code,1860 or any other law for the time being in force
against the perpetrator
9. cause to initiate action against the perpetrator where the perpetrator is not an employee, in the
workplace at which the incident took place.
10. monitor timely submission of reports by the Internal Committee.
DISTRICT OFFICER’S DUTIES UNDER SECTION 20 OF
There are two main obligations of a District officer and they are-
I. He shall monitor the timely submission of reports furnished by the Local
II. He shall also take measures as may be necessary for engaging non-governmental
organizations for creation of awareness on sexual harassment and the rights of the
ADDITIONAL DUTY OF AN EMPLOYER UNDER SECTION 22 OF THE ACT TO
INCLUDE INFORMATION IN ANNUAL REPORT
I. The employer of any organisation is under a statutory obligation to prepare an
annual report and include in that report, the total number of cases/complaints of
sexual harassment filed with him and how they have been disposed of under the
scheme of the Act.
II. In case no such annual report was required to be prepared, the employer shall
intimate the number of cases/complaints , to the District Officer.
Not less than two
to cause of women
one member from non-
govt. organisations or
associations or person
committed to the cause of
½ of total
one member working
in block, taluka, tehsil
one is woman
to cause of women
EMPLOYER DISTRICT OFFICER
Complaint of Sexual Harassment u/s 9 of the Act
• Complaint of sexual harassment at workplace must be made by an aggrieved woman and
the same should be in writing and be specific against the harasser;
Provided where an aggrieved woman is not capable of making a complaint in writing, in such
a case, the presiding officer or the chairperson, as the case may be, provide assistance to
the woman for making the complaint.
• Complaint should be made to the Internal Committee, if so constituted or the Local
Committee if not so constituted.
• It should be made within three months from the date of incident or within three months
from the date of last incident in case of series of incidents.
Provided also that the Internal Committee or the Local Committee may extend the time limit
not exceeding three months, if it is satisfied that there existed such circumstances as would
prevent a woman from filing a complaint within the said period.
• In case if the aggrieved woman is not capable of making a complaint on account of physical
incapacity or death or otherwise, her legal heir may make a complaint.
under section 10 of the Act
• The Internal Committee or the Local Committee before making an inquiry in the
following section, may, at the specific request of the aggrieved woman take steps
to make settlement between her and the respondent through conciliation.
• No monetary settlement be made for the purpose of conciliation.
• If a settlement is arrived at, the Internal or the Local Committee, as the case may
be, record such settlement and forward with recommendation to the employer or
the District Officer to take action as specified.
• The Committee shall provide the copies of the settlement so arrived and recorded
to the aggrieved woman and the respondent.
• No further inquiry is required if a settlement is arrived under this section.
INQUIRY INTO COMPLAINT
under section 11 of the Act
• If the Internal or the Local Committee, fails to make effective conciliation under
section 10 of the act, it shall, where the respondent is an employee, in accordance with
the provisions of the service rules, make an inquiry into the complaint and if no such
service rules exist, in such manner as may be prescribed.
• Where both the parties are employees, they shall be given a fair opportunity of being
heard and a copy of the findings made during the course of inquiry be submitted to
both the parties enabling them to make representations against such findings before
• If any term or condition of the settlement arrived at under sub-section (2) of section 10
is not complied with by the respondent, then in such a case, the Internal or the Local
Committee shall make an inquiry into the complaint and forward it to the police.
• The inquiry under this section shall be completed within a period of 90 days.
Inquiry u/s 11 the Act into the Complaint by a
Domestic Worker .
• As per section 2 (b)(ii)(e) a domestic worker is any woman employed to do the
household work in any household for remuneration, whether in cash or in kind,
either directly or through any agency on a temporary, permanent, part time or full
time basis, but does not include any member of the family of the employer;
• In case of a domestic worker, if a prima facie case exist, the Local Committee
shall, forward the complaint to the police, within a period of 7 days for registering
a complaint under section 509 of the Indian Penal Code (45 of 1860), and any
other relevant provisions of the said code where applicable.
Powers of the Committee
The Internal or the Local Committee, as the case may be, has the same powers as
vested in a civil court under the Civil Procedure Code,1908 while trying a suit.
of any person
examination of a
person on oath requiring the
COMPLETION OF INQUIRY / INQUIRY REPORT U/s 13 of the Act
• Once the inquiry is completed, the Internal or the Local Committee, as the case
may be, provide a report of its findings to the employer or the District Officer
within 10 days from the date of completion of inquiry.
• If the Committee arrives at a conclusion that the allegations against the
respondent are false or have not been proved, it shall recommend the employer
and the District Officer not to take any action.
• If the Committee concludes that the allegation against the respondent has been
proved, it shall recommend the employer or the District Officer, as the case may
I. To take action against sexual harassment under the service rules and in absence of
service rules, in such manner, as may be prescribed;
II. To deduct from the salary of or wages of the respondent such sums as may be
appropriate to be paid to aggrieved woman or to her legal heirs.
• The employer or the District Officer shall act upon the recommendations within 60
days of its receipt by him.
etc. alleging falsely be
punished acc. to the
Mere inability to
complaint will attract
An enquiry to be
FACTORS DETERMINING COMPENSATION
Mental trauma, pain, suffering and emotional distress caused to the
Any Loss in career opportunity due to the incident of sexual harassment;
Any Medical expenses incurred by the victim of physical and mental
The income and the financial status of the respondent ;
Feasibility of such payment in lump sum or in installments.
PROHIBITION OF PUBLICATION AND DISCLOSURE OF
under section 16
• The Act prohibits publication of the contents of complaint, identity, addresses of
the aggrieved woman, respondent, witnesses and any information relating to
conciliation or inquiry proceedings or an action taken by the employer or the
• Information regarding justice secured to any victim of sexual harassment may be
disseminated without disclosing the name, address, identity or any other
particulars relating to that victim.
NON-COMPLIANCE BY THE EMPLOYER U/S 26
OF THE ACT.
If an employer fails to comply with the provisions of this act, he shall be
punishable with fine which may extend to 50000/- (Fifty Thousand Rupees Only).
If an employer, recommits an offence punishable under this Act or is convicted of
the same offence again, then he shall be liable to the twice the punishment, which
might have been imposed on his first conviction and also cancellation of his licence
or the registration as may be required to carry on his business or activity.
Power of Government to make Rules u/s 22 of
The Central Government is empowered to make rules for carrying out the provisions
of this Act by notifying in the Official Gazette which shall be notified soon
This Act has been formulated for the prevention of any kind of Sexual
Harassment , with noble aim of detection and punishing of the same at the very
first instance and same if effectively implemented will help in reducing the acts
sexual violence/ exploitation of women at the workplace by imposing deterrent
effects on the perpetrators by imbibing penal provisions.
The enactment also provides for the effective enforcement of the basic human
right of gender equality and guarantee against sexual harassment at workplaces.
Besides the civil remedy in case of Sexual Harassment of
women discussed all above, following are the other penal
provisions for perpetrators of Harassment.
• The Indecent Representation of Women (Prohibition) Act (1987).
It is an Act to prohibit indecent representation of women through advertisements or
in publications, writings, paintings, figures or in any other manner and for matters connected
therewith or incidental thereto.
Main purpose of the legislation and also the wrong that it is intended to prevent and punish.
Section 3 specifically prohibits publication of any sort of advertisement which contains
indecent representation of women as for instance; pornographic image or video, etc. and
thereby, harasses women.
Section 4 prohibits publication or sending by post of books, pamphlets, etc. containing
indecent representation of women.
Section 6 on the other hand imputes criminal liability on the harasser by making it punishable
with imprisonment which may extend to two years and with fine which may extend to two
thousand rupees on the first conviction and in the event of a second or subsequent
conviction with imprisonment for term of not less than six months but which may extend to
five years and also with a fine not less than ten thousand rupees but which may extend to
one lakh rupees.
THE INDIAN PENAL CODE, 1860
• Sections 354, 376 & 509 are the penal provisions relating to crime
• Section 354 of the Act says that whoever assaults or uses a criminal force to any woman with
an intention of outraging her modesty or with a prior knowledge that his act is certain to
outrage the modesty of the woman commits an offence under this section and is liable to be
punished with an imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
• Section 376 provides punishment for rape of a woman and the punishment is imprisonment
for a term which shall not be less than 7 years and may extend for life or for a term which
may extend for 10 years and shall also be liable to fine unless the woman raped is his own
wife and is not under twelve years of age, in which case, he shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or
Section 509. Word, gesture or act intended to insult the modesty of a woman.--Whoever,
intending to insult the modesty of any woman, utters any word, makes any sound or gesture,
or exhibits any object, intending that such word or sound shall be heard, or that such gesture
or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be
punished with simple imprisonment for a term which may extend to one year, or with fine, or
Amendments in Indian Penal Code
Recent Amendment has recognized very important acts as offences and has
incorporated them into the Indian Penal Code,1860. These are :-
1. Section 326A is a new section which has been added into the IPC and is aimed at
punishing the offence of acid throwing or acid attack. It is a gender neutral offence and has
been made cognizable and non-bailable and is triable by the Court of Session. This section
requires that there should be a voluntary causing of grievous hurt by use of acid, etc.
Punishment- Imprisonment for not less than 10 years but which may extend to
imprisonment for life and fine to be paid to the victim.
2. Section 326B also added which says that if a person voluntarily throws or attempts to throw
acid, then an offence under this section is committed and is punished with an imprisonment
for 5 years and which may extend to 7 years and with fine. This offence is also cognizable,
non-bailable and triable by the Court of Session.
2. Section 354A a new section is added as it defines and punishes acts of sexual harassment
is aimed at the prevention and prohibition of sexual harassment of women.
Following are the ingredients of offence of sexual harassment under this section :
I. physical contact and advances involving unwelcome and explicit sexual overtures; or
II. a demand or request for sexual favours; or
III. making sexually coloured remarks; or
IV. forcibly showing pornography; or
V. any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Punishment- Imprisonment which may extend to 3 years or with fine or with both in case of
sexual harassment of nature of unwelcome physical contact and advances or demand or
request for sexual favours, showing pornography or;
Imprisonment which may extend to 1 year or with fine or with both in case of sexual
harassment of the nature of making sexual colored remarks.
This offence is cognizable but bailable unlike under section 354 of the IPC,1860.
4. Section 354B punishes an act which is committed with an intent to disrobe a woman. Assaults
or use of criminal force to any woman or abetment of such act with the intention of disrobing
or compelling her to be naked is made punishable with an imprisonment of not less than 3
years but which may extend to 7 years and with fine. The offence under this clause is again
cognizable but non-bailable.
5. Section 354C defines and punishes Voyeurism. It says watching or capturing a woman in
“private act”, which includes an act of watching carried out in a place which, in the
circumstances, would reasonably be expected to provide privacy, and where the victim's
genitals, buttocks or breasts are exposed or covered only in underwear; or the victim is using a
lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public
amounts to voyeurism.
Punishment- ( I ) In case of first conviction, imprisonment of not less than 1 year, but which
may extend to 3 years, and with fine. The Offence is bailable.
( ii ) In case of second or subsequent convictions, imprisonment of not less than 3 years,
but which may extend to 7 years, and with fine. The offence is non-bailable.
6. Section 354D defines the offence of stalking:-
To follow a woman and contact, or attempt to contact such woman to foster personal interaction
repeatedly despite a clear indication of disinterest by such woman; or monitor the use by a woman of
the internet, email or any other form of electronic communication. There are exceptions to this
section which include such act being in course of preventing or detecting a crime authorised by State
or in compliance of certain law or was reasonable and justified.
Punishment- ( I ) In case of first conviction, imprisonment up to 3 years and with fine. The offence is
cognizable but bailable.
( ii ) In case of second or subsequent convictions, imprisonment up to 5 years or with fine. The
offence is cognizable but non-bailable.
RAPE (SECTION 375 ) NOW HAS A WIDER DEFINATION AND INCLUDE
Changes in the definition of rape under section 375 of the IPC,1860:-
The word rape has been replaced with sexual assault in Section 375.
Now penetration other than penile penetration is an offence under this section.
The definition of sexual assault is gender neutral in some aspect, with acts like
penetration of penis, or any object or any part of body to any extent, into the vagina,
mouth, urethra or anus of another person or making another person do so, apply of
mouth or touching private parts constitutes the offence of sexual assault.
penetration now means penetration to any extent, and lack of physical resistance is
immaterial for constituting this offence.
A new section 376A has been added which states that if a person committing the
offence of sexual assault, "inflicts an injury which causes the death of the person or
causes the person to be in a persistent vegetative state, shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but which
may extend to imprisonment for life, which shall mean the remainder of that
person’s natural life, or with death”.
In gang rape cases, persons involved regardless of their gender shall be punished
with rigorous imprisonment for a term which shall not be less than twenty years,
but which may extend to life and shall pay compensation to the victim which
shall be reasonable to meet the medical expenses and rehabilitation of the victim.
The age of consent in India has been increased to 18 years, which means any
sexual activity irrespective of presence of consent with a woman below the age of
18 will constitute statutory rape.
Only in certain aggravated situations, punishment will be imprisonment of not less
than seven years but which may extend to imprisonment for life and shall also be liable
to fine else, in aggravated situations, punishment will be rigorous imprisonment for a
term which shall not be less than ten years but which may extend to imprisonment for
life, and shall also be liable to fine.