Enacted on: 22nd April 2013
Came into force on: 9th December 2013 along with the Rules
Let's Understand ...

There are certain definitions provided in the Act which are essential to understand and implement various provisions of the Act. They are discussed below:

1. Aggrieved Woman As per Section 2(a)) of the Act Aggrieved Woman means:
   “In relation to a workplace, a woman of any age, whether employed or not, who alleged to have been subjected to any act of sexual harassment by the respondent”.
   As is evident from the definition itself, it is not necessary that the aggrieved woman is employee of the employer. She can be any woman who visits your premises or workplace.  Further she can be of any age as per the definition. She can be a minor or an adult or an elderly lady. The law thereby is not applicable on a women of certain age group but it is applicable on all women/females irrespective of their age.
2. Employee: Section 2(f)) for the purpose of this Act an employee means:
   “any person employed at a workplace for any work on regular, temporary, ad hoc or daily wages basis, either directly or through an agent, including a contractor, with or , without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are expressed or implied and includes a co-worker, a contract worker. A probationer, trainee, apprentice or called by any other such name”
   Employee has been given a very expansive definition to include all kind of persons employed at a workplace. Trainees and apprentices have also been considered as employees along with probationer and all kinds of contractual workers.
3. Employer: Employer for the purpose of sexual harassment Act is basically any person who has the actual control over the organization. Any such person, Board or Committee which is responsible for key policy decisions in the company or which is entrusted with the devising and implementing the policies are deemed to be employers for the purpose of this Act.
   Further any person who is responsible for discharging the contractual obligations towards his/her employees is also deemed to be an employer under this  Act.
   
4. Respondent: Any person against whom the aggrieved woman has filed complaint under Section 9 is termed "respondent" under section 2(m) of the Act. Thus Respondent is basically the person who is sexually harassing the aggrieved women.
   The definition of respondent is gender neutral thereby implying that a respondent can be a male female or transgender. It is not necessary that respondent/sexual harasser be a male only.
   
5. Sexual Harassment: The term sexual harassment has been defined under section 2(n) read with Section 3 of the Act.
   Section 2 (n) reads as follows: “sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—
   
   1. physical contact and advances; or
   2. a demand or request for sexual favours; or
   3. making sexually coloured remarks; or
   4. showing pornography; or
   5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
   The emphasis in the definition is on the "UNWELCOME" nature of the act that is deemed to be sexual harassment. Therefore any conduct of sexual nature which is unwelcome to the aggrieved women shall be treated as sexual harassment.
   Further it is immaterial whether the respondent had an intention of sexually harassing the aggrieved woman. If any conduct of respondent is perceived by a woman as unwelcome and of sexual nature it shall be deemed to be sexual harassment as defined under the Act.
   Here since the emphasis is on unwelcome & perception of the women therefore the answer to the question whether an act will amount to sexual harassment or not shall be subjective to each situation.
   Further Section 3 (2) of the Act provides for certain circumstances which when related to an act of sexual harassment as defined above shall also be deemed to sexual harassment. These circumstances are as follows:
   1. implied or explicit promise of preferential treatment in her employment;
   2. implied or explicit threat of detrimental treatment in her employment;
   3. implied or explicit threat about her future and present employment status;
   4. interfering with her work, or creating an intimidating, hostile or offensive work environment for her;
   5. Humiliating treatment likely to affect her health & safety.
   Based on the above definitions of sexual harassment, the same can be broadly categorized into two heads for implementation:
   
   1. Quid Pro Quo. (Something in return for something): Circumstances enumerated in points (i), (ii) & (iii) of Section 3(2) stated above falls under the Quid Pro Quo kind of Sexual harassment wherein there is an explicit or implies promise or threat in relation to the employment of the victim whether present or future. There is a sense of give and take in such situations i.e. not acceding to the unwelcome acts of sexual harassment will lead to detrimental effect on victim’s present or future employment.
      For instance if a person asks X asks for sexual favours from a female employee and in return promises some preferential treatment like promotion or salary hike in return this will amount to Quid Pro Quo kind of sexual harassment.
      Similarly if he asks sexual favours and threatens the female employee that if she does not accede to his demands it will be detrimental to her employment, then also it will come under the purview of Quid Pro Quo
      
   2. Creating Hostile & Offensive work environment Circumstances enumerated in points (iv) & (v) of Section 3(2) falls under the second category of sexual harassment wherein a hostile or offensive work environment is created for the complainant as a result of the unwelcome act amounting to sexual harassment.
      This category can include very wide connotations of sexual harassment and whether an act falling under this category amounts to sexual harassment will depend on facts and circumstances of each case. While analyzing whether an act amounts to sexual harassment under this category the main focus will be on the perception of the complainant and whether the act was unwelcome. Intentions of the respondent are irrelevant in such cases.
      
6. Workplace: Following places are included in the definition of workplace under the Act:
   
   1. Any establishment, department, institution, organization, undertaking, enterprise, unit, branch, office owned, controlled, or substantially funded by the Government;
   2. Any private sector organization or a private venture, enterprise, institution, establishment, society, trust, NGO, unit, or service provider carrying on commercial, professional, educational, vocational, entertainmental, industrial, health services, financial activities including production, sales supply distribution of service;
   3. Hospital or nursing home
   4. Any sports institute stadium, sports complex, competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
   5. Any place visited by an employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.
   Here again the definition of workplace is not restricted to merely the office premises infact any place visited by an employee for the purpose or during the course of employment is also treated as workplace.
   Thus for example if an employee goes on an official conference in a hotel or a mall then that hotel or mall will be deemed to be workplace under the Act. and any incidence of sexual harassment at that place by such employee can be dealt with by the ICC of that establishment.
   

As per Section 5 of the Act every District must have a local Complaints Committee headed by the District Magistrate or Additional District Magistrate to address complaints of sexual harassment for establishments where there are less than 10 employees and consequently no ICC has been constituted and also to hear complaints against the Employer of an establishment.

Thus the complaints of sexual harassment against the employer of an establishment must be filed before the Local Complaints Committee and complaints against the employee of an organization where no ICC exists shall also be made to LCC.

Section 9 of the act provides for filing of the complaint under the Act. The main provisions contained in Section 9 are as follows:

1. Complaint against Sexual Harassment must be filed in writing in six copies
2. It should be filed within 3 months from the date of incidence alleged to be sexual harassment
3. ICC/LCC can extend the period of 3 months stated above by another 3 months. But reasons for such extension should be recorded in writing by ICC or LCC as the case may be.
4. The complaint has to be filed by the aggrieved women herself. Only in cases where she is mentally or physically incapable of filing the complaint, the same can be filed by her legal heirs or co-worker , any person having knowledge of the incidence or by National or State Commission for Women

Upon filing of a complaint ICC or LCC has to follow a certain procedure for enquiry, which may be broadly classified into three heads:

1. Conciliation
2. Enquiry
3. Recommendations during pendency of Enquiry

CONCILIATION:

Section 10 of the Act provides that before proceeding with enquiry if there is a request from the aggrieved woman to take steps to settle the matter between her and the respondent through conciliation, then ICC must proceed with such conciliation before starting enquiry into the complaint. Further section 10 provides that monetary settlement shall not be made basis of conciliation under Act. Also when the settlement is reached the same shall be recorded in writing and the copy of the same shall be provided to each party along with the employer or district officer as the case may be. It shall be the duty of Employer/district officer to take actions on the recommendations made in the conciliation proceedings. Once an amicable settlement is made then no further enquiry shall be conducted by the ICC or LCC as the case may be in the said complaint.

ENQUIRY:

Following procedure for conducting an enquiry has been laid down in Section 11 of the Act read with Rule 7:

1. Complaint must be filed in 6 copies along with the supporting documents & names & addresses of the witnesses to the ICC or LCC.
2. Thereafter within 7 days of receiving the same ICC or LCC must forward a copy of the complaint to the respondent
3. The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the copy of complaint.
4. The Complaints Committee shall make inquiry into the complaint in accordance with the applicable service rules and if no such rules are provided then, as may be prescribed but the proceedings of enquiry shall in all cases be in accordance with the principles of natural justice.
5. Both 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.
6. The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an ex- parte decision on the complaint, if the complainant or respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings convened by the Chairperson or Presiding Officer, as the case may be: Provided that such termination or ex-parte order may not be passed without giving a notice in writing, fifteen days in advance, to the party concerned.
7. Quorum of ICC shall be at least 3 members including the Presiding officer. Without such Quorum no enquiry can be proceeded with
8. The parties shall not be allowed to bring in any legal practitioner to represent them in their ease at any stage of the proceedings before the Complaints Committee.
9. The Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint in cases where settlement has been made under Section 10, if the aggrieved woman informs the Internal Committee or the Local Committee that any terms or conditions of the settlement arrived at have not been complied with by the respondent.
10. An enquiry into the complaint by ICC /LCC under the Act shall be completed within a period of ninety days.
11. For the purpose of making an inquiry under the Act, 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.

RECOMMENDATIONS DURING PENDENCY OF ENQUIRY:

Section 12 of the Act read with Rule 8 provides for certain recommendations that can be made by ICC/LCC to the employer during the enquiry upon a written request from the aggrieved woman in this regard.

It is mandatory for the employer to implement these recommendations and forward a report in this regard to the ICC /LCC

These recommendations can be as follows:

1. to transfer the aggrieved woman or the respondent to any other workplace
2. to grant leave to the aggrieved woman up to a period of three months. This leave shall be paid leave and in addition to any other leave entitled to the aggrieved woman
3. to restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer
4. to restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved woman
5. or any other relief that may be prescribed.

These above stated relief are made available to the aggrieved women only so as to ensure that there are no adverse effects on her employment as well as health during the pendency and as a result of the enquiry initiated at her behest against the respondent.

Section 13, 14 & 15 read with Rules 9 & 10 provides for submission of the Inquiry Report by ICC or LCC upon completion of the enquiry and recommendations that can be made under various circumstances in the Enquiry Report.

Section in this regard provides that upon completion of an inquiry under this Act, the Internal Committee or the Local Committee shall provide a report of its findings to the employer the District Officer within a period of ten days from the date of completion of the inquiry and such report shall also be made available to the concerned parties.

It is mandatory for the employer to implement the recommendations made by the ICC /LCC within 60 days from the date of the receipt of the enquiry report.

Recommendations that can be made by ICC /LCC in enquiry report are as follows:

1. Where it arrives at the conclusion that the allegation against the respondent has not been proved: that no action is required to be taken in the matter.
2. Where it arrives at the conclusion that the allegation against the respondent has been proved:
   1. to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
   2. In case service rules do not exist the following recommendations can be made by ICC to the employer to take action for sexual harassment.-
      To take any action including
      1. a written apology
      2. warning, reprimand or censure
      3. withholding of promotion
      4. withholding of pay rise or increments
      5. terminating the respondent from service
      6. undergoing counseling sessions or
      7. carrying out community service.
   3. to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:
   4. that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:
   5. That in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
3. Where it arrives at the conclusion that the allegation against the respondent either malicious or false: to take action against the woman or the person who has made the complaint in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed
   Please note that that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant for filing false or malicious complaint. It has to be proved that the complaint was infact malicious or false.

For the purpose of determining the sums to be paid to the aggrieved woman to be paid by respondent under section 13, 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 installments.

Section 26 of the Act provides for the penalty that can be imposed on employer for non compliance of the provisions contained in the Act. Section 26 basically provides that the employer fails to—

1. constitute an Internal Committee under sub-section (1) of section 4;
2. take action under sections 13, 14 and 22; and i.e fails to act upon the recommendations made by ICC / LCC
3. contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder, shall be punishable with fine which may extend to fifty thousand rupees.

Secondly if any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to:

1. twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence:
2. cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.

In India, apart from the 2013 Act, sexual harassment is considered an offence under the following laws:

1. Constitution of India: Article 14 & 21
   Sexual Harassment is construed as violation of Fundamental Rights of  Equality and Life & Liberty as enshrined under Articles 14 & 21 by the Hon’ble Supreme Court of India in a series of judgments past in wake of Landmark case of Vishaka vs. State of Rajasthan in the year 1997
2. Indian Penal Code: Sections 354A, 509,
   Section 354A IPC inserted by way of 2013 amendment provides as follows:
   
   1. A man committing any of the following acts—
      1. physical contact and advances involving unwelcome and explicit sexual overtures; or
      2. a demand or request for sexual favours; or
      3. showing pornography against the will of a woman; or
      4. making sexually coloured remarks,
      shall be guilty of the offence of sexual harassment.
   2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
   3. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
   Before enactment of the above stated section sexual harassment was broadly covered under Section 509 which relates to outraging the modesty of a woman.