An Eye for an Eye makes the whole world Blind

Balu Dinesh is a 3rd year student at Kerala Law Academy Law College, Thiruvananthapuram

 

INTRODUCTION

‘Certainty of law is a legal myth.’ – Jerome Frank The imposition of death penalty is an enigma which has kindled several controversies over decades. Debates over death penalty are still in motion, which is reminiscent of the Hegelian dialectics.[1] However in the current scenario much of the arguments in the debates are inclined against the idea of awarding death penalty to the convict. The United Nations Declaration on Human Rights, 1948 is the sine qua non of the modern civilized world and in it is specifically stated that “no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment.[2]

As a response to this several resolutions and moratoria were adopted in the international community. Among them some are noteworthy. The United Nations Special Rapporteur[3] or extrajudicial summary on arbitrary executions has emphasized that the abolition of capital punishment is most desirable in order to fully to respect the right to life.[4] In December 2007 and 2008 the United Nations General Assembly adopted resolutions 62/149 and 63/168 calling for a moratorium on the use of death penalty. Similar views against death penalty are adopted by European Court of Human Rights[5] and by the United Nations Human Rights Committee.[6] These international resolutions are nothing but a sign of the inclination of the justice system against the idea of awarding death penalty. It is at this juncture that the arguments rebutting the idea of awarding death penalty are to be introspected.

 

HISTORY

Capital punishment is rather an old idea. The ‘The Code of Hammurabi’, a legal document from ancient Babylonia contained the first known death penalty laws.[7] Under the Code written in the 1700s B.C, 25 crimes were punishable by death.[8] The Hebrew Bible, lays down that an offender should give “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot” and this proposition came to be known as the retributive theory of punishment in modern jurisprudence. Thus the idea of death penalty was based on the popular belief that vengeance emanated from the individual and punishment from God. However, law cannot be static.

We are now living in an era of cultural and technological revolution. Hence the law has to shape itself to adapt to the changing norms of culture in the modern civilized world. Time has come to discard the idea of giving death penalty practiced since the old barbarian era. The fact that 42 countries have abolished death penalty[9] is a testimony to the former statement.

 

ANALYSIS

The common arguments against death penalty can be summarized through a simple illustration. “A kills B. If B is executed, will A come back? Will the relatives of A get back the lost happiness? Will the relatives of B who were not involved in the crime get justice?”  Hence ‘death for death’ is a deadly weapon which cannot give any justice. The idea of allowing B to reform himself and to make him take the responsibility of maintaining those who were supported by A makes more sense.

When there are lots of such alternatives what is the idea behind the imposition of death penalty? Death penalty attains importance due to its stringent nature. Once executed, it can never be rectified. Justice system can never be infallible. It is the finality which makes the justice system infallible and not the infallibility which makes it final. Hence the justice system can also go wrong in several circumstances.

 

ARGUMENTS AGAINST DEATH PENALTY

So if a person is executed wrongly, can the same justice machinery bring back his life? The answer is a definite ‘No’ Hence the confidence and glory of the whole machinery of justice relies upon its tolerance and the abolition of death penalty is the first step towards its realization. Timothy Evans Case[10] and the Campden Wonder[11] in the United Kingdom have left stains in the justice system which tempts everyone to rethink about the idea of death penalty. In the words of Jean Jacques Rousseau, one of the pioneers of French Revolution, “In any case, the frequent punishments are a sign of weakness or slackness in the Government. There is no man so bad that he cannot be made good for something. No man should be put to death, even as an example, if he can be left to live without danger to society.” Hence it is the weakness of our civil society that is revealed through death penalty.

It is the acts of a father that influences his son. Similarly, the act of State can also influence the people. When State imposes death penalty it sends a wrong message of retributive temperament to the society. In contrast if the State abolishes death penalty it sends a message of tolerance and teaches the people about the value of life. As per the oft quoted words, “To err is human but to forgive is divine”, the State through abolition of death penalty can make the people more conscientious. Moreover, a doctrine in criminal jurisprudence states that it is the circumstances that make a man, a criminal. Hence a criminal must be allowed to reform himself. Executing him will increase the hatred of the society towards similarly placed people. Thus two wrongs cannot make a right.

 

CONCLUSION

It is also noteworthy that the latest studies by Amnesty International reveals that the crime rates in those countries where death penalty is still a legal routine are much higher than in those countries which refrain from imposing death penalty.[12] In India also there were several debates regarding the imposition of death penalty. It was the living legend Justice V. R Krishna Iyer who sparked discussions about death penalty in India in the case of Rajendra Prasad v. State of U.P[13]. Following the cases of Bachan Singh v. State of Punjab[14], Machhi Singh and other v. State of Punjab[15] and Dhananjoy Chatterjee v. State of West Bengal[16], the decision “death penalty can be awarded in the rarest of the rare cases and by considering the antecedents, nature and character of the accused” was formulated and is still followed. However, it must be noted that of late, Justice KT Thomas who presided over the bench which awarded death penalty to the accused persons in the Rajiv Gandhi assassination case has said that it was his misfortune to have presided over the bench. Hence a strong wave against the idea of imposing death penalty is blowing from different corners of the world. The law cannot turn a deaf ear to all these reverberations. It is high time that a stable law regarding the imposition of death penalty is framed, as it is said “If we do not maintain justice, justice shall not maintain us”.

 

 


[1] Hegelian dialectics states that it is the continuous clash between two opposing views which lead to the origin of a more mature via media between the two views.

[2] Article 5, Universal Declaration of human Rights, 1948

[3] Special representative of Secretary General to examine, monitor, advise and publicly report on human rights problems

[4] Extrajudicial summary on arbitrary executions: Note by the Secretary General, U N document A/51/457, Oct 1996, Para 145

[5] In Soering case (1/1989/161/217), judgment, Strasbourg, 7th July 1989, Para 104

[6] General Comment on Art 6 of the International Covenant on Civil & Political Rights

[7] JoAnn Bren Guernsey, ‘Death Penalty: Fair Solution or Moral Failure?’, Twenty First Centaury Books, 01-Sept-2009, at P.9

[8] Ibid.

[10] Timothy John Evans (20 November 1924 – 9 March 1950) was a Welshman accused of murdering his wife and infant daughter at their residence at 10 Rillington Place in Notting Hill, London. In January 1950 Evans was tried and convicted of the murder of his daughter, and he was sentenced to death by hanging. During his trial, Evans had accused his downstairs neighbour, John Christie, of committing the murders. Three years after Evans’s execution, Christie was found to be a serial killer who had murdered a number of other women in the same house, including his own wife. Before his own execution, Christie confessed to murdering Mrs. Evans. An official inquiry concluded in 1966 that Christie had also murdered Evans's daughter, and Evans was granted a posthumous pardon .The case generated much controversy and is acknowledged as a major miscarriage of justice.

[11] The Campden Wonder is the name given to events surrounding the return of a man thought murdered from the town of Chipping Campden in the 17th century. A servant, his mother and brother were hanged for killing their master. But following the man’s return, it became clear that no murder ever took place despite testimony attesting to the crime by the accused. The story attracted popular attention in England in the years 1660–1662.

[12] filipspagnoli.wordpress.com/stats-on-human-rights/statistics-on-capitalpunishment

[13] A.I.R 1979 SC 916

[14] 1980 (2) SCC 684

[15] A.I.R 1983 SC 957

[16] 1994 (2) SCC 220

Inherent Powers of the HC made explicit in cases on non-compoundable Offence

Dipti is a 3rd year student of JGLS, Sonepat

A recent judgment by the apex court of Indiain the case of Narinder Singh v. State of Punjab has been instrumental in removing the ambiguity in law. A law that gives the High Court (hereinafter referred as HC) inherent powers to quash proceedings on the basis of settlement between parties has emerged from this judgement. The judgment delivered appears to be progressive, as it has listed out the guidelines that should be followed by the HC while using its inherentpowers, thereby bringing about certainty in the law. This judgment is extraordinary for two reasons. Firstly, it explicitly enhances the power of the court to quash proceedings even if the offence falls in the non-compoundable category. Secondly, it enumerates a list of guidelines that explains how the three abstract conditions stated in section 482 of Criminal procedure Code could be met. The three conditions being: to give effect to any order under the Code, to prevent the abuse of the process of any court and to secure the ends of justice.

At the very outset, it is quintessential tounderstand the meaning of the terms ‘compoundable offences’ and ‘non compoundable offences’. ‘Compoundable offences’ are those kinds of offences, which do not require a court’s permission to quash the proceeding if compromise has been reached between the parties. However, ‘non-compoundable offences’ require the permission of the court to allow such a compromise between parties, whichinturn would lead to the acquittal of the accused. The very distinction is made on the ground that offences that are heinous and serious in nature are regarded as offences against the society at large and therefore acquittal in such cases has to be scrutinized before being granted. While the offences, which were not so heinous,are allowed sincethey are regarded as offences against an individual and if the aggrieved individual has agreed to compromise, it would be wise for the court to quash the proceedings.

The highlighting aspect of this case was that a non-compoundable offence was allowed to be quashed under the discretionary powers given to the HC (section 482 of Code of Criminal Procedure, 1973). We should take note that offences, which are considered to be compoundable, are given under section 320 of the Code and clause 9 of the same states that no offence shall be compounded except as provided by this section. In this case it was witnessed that the offence committed by the accused was outside the ambit of section 320. So, then the question arises, should the discretionary powers given to the HC be allowed to quash the proceeding of a non-compoundable offence under section 482? Does it not go against the letter of the law? Does this not infringe section 320 (9) of the Code?

To answer these questions it is essential to examine the guidelines laid down in this case. These guidelines enumerate principles that would direct the HC in using its discretionary powers. The very first guideline explains that there is a distinction between the powers of compounding of offences given to the court under section 320 and quashing the criminal proceedings by the HC in exercise of its inherent jurisdiction conferred upon it under section 482 of the Code. The distinction lies in its application. In case of the former, the court just checks if compounding in permissible under section 320, and if it is, the court is solely guided by the compromise between parties. However, in case of the latter, the court is guided by materials on record and not just the compromise being met, It checks whether the ends of justice would justify the exercise of power.Although the ultimate consequence of the two maybe the same. But the means to reach the end is different and therefore should be appreciated.

The second guiding principle reiterates the section itself giving out the two important objectives of such usage of power by the HC. First, being to secure the ends of justice and second to prevent the abuse of power of any court. The third guiding principles identifies when such powers should not used by the HC. Firstly, when the offence is not private in nature and has serious impact on society and secondly, when the offence involves serious and heinous offence. And lastly, even when offences are alleged to have been committed under special status it should not be quashed by the HC merely on the basis that compromise has been attained between parties.

While listing out the areas under which the HC should refrain from usingits discretionary powers, the forth-guiding principle expounds the core idea of this section. It states that the HC also has to check whether the possibility of conviction is remote or bleak and if the criminal proceeding is allowed to continue great oppression and extreme injustice would be caused to the accused. If the HC feels in consideration of the facts and circumstances of the case, that such would be the case then it should quash the proceeding. So, it can be inferred from this principle that even if the offence is considered to be serious, the court may quash the proceedings if it is of the opinion that grave injustice would be caused by its continuance.. This principle gives of the taste of inherent powers. The power that court would decide according to its own discretion to avoid injustice. In my opinion, this principle super powers all the other principle asit makes it explicit that the discretion lies on the HC. And at the periphery it has coated it with conditions, which the court has to fulfill if a decision has to emerge.

The sixth guiding principle takes note of a very vital factor in such cases. The essentiality of time has been enumerated. It has elaborately explained at what stage such discretion should be used by the HC. There are foursituations given out: – firstly, when settlement is arrived immediately after the alleged commission of the offence and the matter is still under investigation. In such a case, the HC will be liberal in accepting the settlement and quashing the proceeding. The next situation is when the charges are framed, but evidence is still at the infancy stage, the HC should show considerable benevolence only after the prima facie assessment of material circumstances. Thirdly, when prosecution evidence is almost complete, and after the conclusion of the evidence, the matter is at the argument stage, the HC should refrain from exercising such powers. Lastly, when the conviction is already recorded at the trail court and the matter is at the appellate stage before the HC, mere compromise would not be a ground to accept.

These guiding principles try to give certainty to the law relating to the usage of inherent powers. It exhibits a core where the real essence of this section is upheld- the factor of it being discretionary in nature, which is seen in guiding principle no. 4. This core has layers of principles at the outer end. These principles are the guiding factors elaborately explained above. So, if the HC has to use its discretionary powers it has to fulfill the conditions of the layers at the outer end. Therefore, in my opinion this judgment is one-step forward and making law more reasonable to understand.

******

[1](2014) 6 SCC 466 [1]Prevention of Corruption Act or Offence committed by public servants while working in that capacity

Importance of –The Protection of Women from Domestic Violence Act, 2005

A 2nd year student of W.B.N.U.J.S, Kolkata

 Reported Crimes Against Women”[1] – Year 1999-2000: 1,55,553[2]; Year 2005: 1,41,373[3]; Year 2010: 2,13,585[4]; Year 2013: 2,95,930.[5]On perusing the above data it can be seen that, crimes which are committed within the four walls of a woman’s house are categorised   under merely two heads, namely – Homicide for Dowry/Dowry Deaths or their attempts (Section 302/304-B IPC) and Torture, both mental and physical (Section 498-A IPC).  Even though the number of ‘reported crimes’ against women are increasing at an alarming rate and considering the fact that in our patriarchal society more crimes are being committed than are  reported,social activists, feminists and several non-governmental organisations have  persistently  demanded  bringing amendments to the present criminal laws and if needed, also to enact  specialised legislations.

Before the introduction of ‘The Protection of Women from Domestic Violence Bill, 2000’, several other amendments and new laws were introduced such as the Dowry Prohibition Act, 1961 and the Criminal Laws Amendment Act, 1983 – which specifically worked towards  improving the laws that govern domestic violence against women. To some extent they did a good job; for example, by inserting Section 498A of IPC, violence in the form of ‘torture’ was introduced and it provided stern punishments to offenders causing dowry death, suicides or tortures inflicted on women in pursuit of dowry demands.

But does restricting the definition of ‘torture’ to merely mental and physical suffice in dealing with several other harms such as economic and sexual? What about the woman who is not the wife of the man she is living with? Violence inflicted towards her cannot be   for the purpose of obtaining of dowry and hence, neither the Indian Penal Code, 1860 nor any specialised laws can come to the rescue of such women. ‘The Protection of Women from Domestic Violence Act, 2005’ (hereinafter written as DV Act) was drafted keeping in mind all these issues. It widens the scope of ‘cruelty’ – in the name of domestic violence. It has categorised abuses as physical/sexual/verbal/ emotional and economic.[6]It has addressed a woman in general – she can be someone’s daughter, wife, mother and even a live-in partner. The DV Act has taken care of the hindrances and social apathies that a woman faces after reporting a criminal complaint and how these problems discourage other women to raise their voices against such crimes. The DV Act introduced provisions such as alternate residence for ensuring that the victim is not  thrown out of her house by the alleged offenders[7], protection of victim and her children by appointing ‘Protection Officers’[8], monetary reliefs such as loss of earnings, medical expenses[9], custody of children till the final court hearing[10] etc.These provisions have become a great boon for all those women who had earlier found it impossible to get out the vicious circle of the society and file a criminal complaint against their own relatives and live-in partners. The DV Act has also given a fair chance to all those voluntary organisations which have always worked selflessly and intervened to help these women in their misery. These organisations are empowered to act as intermediaries[11] between the alleged offenders and the victims in domestic violence matters.

But since perfection is hard to be achieved, the DV Act has led to debates on topics, such as the non-availability of provisions where the relatives of the man (such as his mother, father, sister etc. who are also living with the couple) can come to court complaining domestic violence inflicted against them by a woman residing with them (that can be their daughter, daughter-in-law, live-in partner of their son/brother etc.). Also, the National Crime Records Bureau (NCRB) data, post-2005 and till date, do not indicate that crimes against women in the name of domestic violence have reduced to a satisfying number. But it is equally unfair to blame an Act if one finds several lacunae due to the lack of budgetary provisions[12]to successfully implement the Act.

[1] “Although Women may be victims of any of the general crimes such as ‘Murder’, ‘Robbery’, ‘Cheating’, etc., only the crimes which are directed specifically against Women are characterised as ‘Crimes Against Women’.”http://ncrb.nic.in/ciiprevious/Data/CD-CII2005/cii-2005/CHAP5.pdf [Last seen on July 5, 2014].

[2]http://ncrb.nic.in/ciiprevious/Data/CD-CII2005/cii-2005/CHAP5.pdf [Last seen on July 5, 2014].

[3]http://ncrb.nic.in/ [Last seen on July 5, 2014].

[4]Id.

[5] Id.

[6]The Protection of Women from Domestic Violence Act, 2005 § 3.

[7]Id., § 6, § 17, § 18, § 19

[8]Id., § 2(n), § 8 & § 9.

[9]Id., § 2(k) and § 20.

[10]Id., § 21.

[11]Id., § 10.

[12]BhumikaJhamb, The Missing Link in the Domestic Violence Act, EPW, August 13, 2011, 33. The writer here has provided extensive insight regarding lack of central as well as state government funding so as to fulfil requirements regarding successful implementation of DV Act. Fore.g. – Funding’s to construct shelter homes, allowances to be provided to Protection Officers etc.

An Analysis of the Law for the Protection of Juveniles from Sexual Offences

  By Nilabha Sharma Advocate, New Delhi

Movies whether good or bad always leave an impression on the viewer. The scene from the film “Highway” which portrayed the actress’s outburst about being sexually abused as a child by her uncle kept haunting me for days. I tried imagining the trauma and the misery of an innocent child subjected to abuse. Sexual abuse of any kind on any person is a monstrous act in itself; more so if a child is subjected to it; who often cannot even comprehend what is happening to him or her.

The problem of child sexual abuse in India and USA at a glance:

The problem of sexual abuse of children is prevalent in the world at large. Even in a country like USA, a study by David Finkelhor, Director of the Crimes Against Children Research Center indicates that 1 in every 5 girls and 1 in every 20 boys is a victim of child sexual abuse.Over the course of their lifetime, almost 28% of U.S. youth aged between 14 to 17 years had been sexually victimized.[i] In India the statistics are indicative of a catastrophe under which the whole society is reeling. A survey undertaken by the Human Rights Watch, an International organisation in 2013 reflected startling numbers – 53% of the children interviewed had suffered one or the other kind of sexual abuse of which 72% of the cases had never been reported to anyone. Only 3% of these cases had been reported to the police.[ii]

Examples are many like Ruchika Girhotra, a 14 year old girl who was sexually abused by a police officer. The police officer was never punished but her family’s harassment and the fact that they were ostracised by the police; drove her to suicide. Other cases include the infamous Nithari killings and the case of Apna Ghar in Haryana, a residential care institution for orphans; where the residents were incessantly raped not only by the authorities, but the children were also coerced into having sex with strangers. The most recent example is the gang-rape and the brutal murder of two teenage dalit girls in Badaun district, UP. Three of the seven culprits involved are still absconding. These are only four of the several hundreds of cases that happen every year, of which only few are reported and the people who report them are subjected to the abysmal behaviour of the authorities that discourage others to report such cases.

Scholars often treat this as a sociological menace, which is true. But it is also a legal failure. Sexual offences against children have been treated under the IPC (Sections like 375, 376 etc.); however no special reference is given to children as such. Under the Juvenile Justice (Care and Protection of Children) Act, 2000, primarily Section 23 – a penal provision deals with cruelty towards children.

The Protection of Children from Sexual Offences Act, 2012 (POCSO):

In 2012, the Indian Parliament passed the Protection of Children from Sexual Offences Act. The Act was drafted as early as 2002 but passed as late as in 2012. The implementation of the Act is still to be seen. The Act on paper seems infallible. It is comprehensive and covers almost all kinds of sexual abuse, be it assault, harassment even pornography. It provides for establishment of special courts and in camera proceedings so that the victim does not feel intimidated. Section 19 elaborately provides for reporting of offences. Section 21 provides for punishment if, after possessing the knowledge of such an abuse, a person doesn’t report it. Though the punishment is not very stringent, however it might be effective for the time being. Special provisions have been provided for recording of statements, etc. which has to be done at home or any other place where the child feels comfortable. The identity of a child is to be protected at all costs, though no penalty is provided for the authorities if they leak out the name of the victim.

The Act establishes the National Commission for Protection of Child Rights as the monitoring body for the proper implementation of the Act. The loopholes that exist are that the Act does not at any instance provide for a child with special needs or one suffering from a physical or mental disability. Moreover the provisions that would ensure that the Act is properly implemented are almost negligible. The penalties provided are severe but changes have to be made in the manner of obtaining of evidences. What has to be made certain is that the victim does not suffer further and the belief of the people in the justice delivery mechanism is strengthened.

Child sexual abuse is shrouded in secrecy and more often than not it is kept buried due to the social stigma attached to it. The victim suffers in silence. The devastating effect it has on a child is incomprehensible. It shatters the soul of an innocent being. The psychological effects are numerous; the victim keeps on reliving that trauma for almost his or her entire life- dragging the burden alone, never sharing it with anyone. The most surprising thing is that the perpetrators of this crime are mostly those people on whom the child has utmost faith like a relative, a close domestic help etc.

Epilogue:

Apart from the implementation of the Act, my personal opinion is that the best way to combat child sexual abuse is through awareness. As soon as the society embraces this problem, understands it, stops ostracising people who talk about it or who come forward with it; the menace of child sexual abuse would be dealt with to a great extent. The further victimisation of the child has to be stopped. The social stigma attached to it has to be done away with. Instead of penalising the perpetrator, the focus should be on how to prevent sexual abuse of children; how to nurture them in an environment where there is no such fear. As a society we have to ensure that justice is done to these innocent victims and not only do we need to ensure that this monstrosity is stopped, but also that other innocent children are not persecuted. If we cannot do this, it shall mark the failure not only of society, but humanity as a whole.

[i] Data as retrieved from http://www.victimsofcrime.org/media/reporting-on-child-sexual-abuse/child-sexual-abuse-statistics

[ii]Human Rights Watch Report “Breaking the Silence Child Sexual Abuse in India”, 2013, retrieved from www.hrw.org/sites/default/files/reports/india0113ForUpload.pdf.

Prevention of sexual harassment at workplace

 

By Shinjini Kharbanda,

Associate, Phoenix Legal, New Delhi

 

The recent sexual harassment case of Tarun Tejpal (editor of investigative journalism magazine, Tehelka) has brought to the fore the inept redressal of sexual harassment complaints within the Indian companies. The Supreme Court of India in 1997, for the first time, acknowledged sexual harassment at the workplace as a human rights violation in Vishaka and others v. State of Rajasthan[i] (the Vishaka judgment). This judgment made it mandatory for employers at all workplaces to observe the guidelines laid down therein.

However, the law dealing with this pertinent issue has been enacted almost 16 years after the judgment on the Vishaka case was passed. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013; (hereinafter the Act) aims at providing “protection against sexual harassment of women at workplace and prevention and redressal of complaints of sexual harassment.”[ii] It was notified by the Central Government on December 9, 2013 and it replaces the guidelines provided in the Vishaka judgment.

In addition, the Parliament has strengthened the penal law whereby it has included punishment for sexual harassment in the Indian Penal Code, 1860).[iii] The duty of employer includes that he must provide assistance to a woman employee if she opts to file a police complaint or he can by himself initiate action against the perpetrator under the Indian Penal Code, 1860.[iv] Further, the Supreme Court has also taken a proactive approach by introducing the Gender Sensitization and Sexual Harassment of Women at Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013.

I Sexual Harassment and Workplace – Definition

The definition of ‘sexual harassment’ stipulated in the Act includes any unwelcome sexually determined behaviour such as physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical verbal or non-verbal conduct of sexual nature. This wide definition takes into account direct or implied acts of such nature.[v]

The Act stipulates that a woman should not be subjected to sexual harassment at any workplace. As per the statute, the presence or occurrence of circumstances that imply the promise of preferential treatment in employment; the threat of unfavourable treatment in employment; the threat about present or future employment; interference with work or creating an intimidating or offensive or hostile work environment; or humiliating treatment which is likely to have an adverse effect on any lady employee’s health or safety falls within the purview of sexual harassment.[vi]

The Act has provided a wide connotation to the term ‘workplace’. It takes into account the actual place of work and the areas connected to it including the transport that the employee uses for commuting to her workplace. Also, the Act is applicable to both the organised as well as the unorganised sector in India.

II Constitution and Working of Internal Complaints Committee

The Act mandates the establishment of Internal Complaints Committee at all branches or offices of organizations where at least ten or more employees are employed.

The constitution of the Committee is as follows:

1. It should be headed by a women employed at a senior level.

2. Half of the members should be women.

3. It should include a third party NGO/other body.

4. Two persons amongst employees committed to the cause of women/experience in social work/legal knowledge should form part of the Committee.

The maximum period for which any member can occupy a position in the Committee is three years.

Interim Reliefs – During pendency of enquiry, the complainant may be transferred or granted leave if so requested. Further, the accused person can be restrained from reporting on the work performance of the complainant.

A report pertaining to the findings of the said committee should be given to the employer within ten days. If the act of sexual harassment is proved then action must be taken against the offender under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 or the compensation to the complainant is to be deducted from the salary of offender. The Act clearly mandates that the employer has 60 days to act upon the recommendations of the Internal Complaints Committee.

The following courses of action can be taken against the offender:

a)      Written apology;

b)      Warning;

c)      Reprimand;

d)      Withholding increments/promotion;

e)      Termination from service;

f)        Undergoing counseling session; and

g)      Carrying out community service.

If the complainant wishes, the Committee can settle the matter through conciliation (but not as a monetary settlement). When the matter is settled in this manner, terms of settlement have to be then communicated to the Employer who shall then take action. If conciliation is not preferred by the aggrieved female employee then an inquiry has to be conducted by the said Committee.

Also, the Committee must prepare an annual report to be submitted to the Employer and the District officer of the district where the organization is situated.

III Obligation of Employers

The employer’s obligations under the Act are as follows:

a)      Providing a safe working environment at the workplace;

b)      Displaying at the workplace, details of – the penal consequences of indulging in acts of sexual harassment, composition of the Internal Complaints Committee and the availability of the grievance redressal mechanism for aggrieved employees;

c)      Providing necessary facilities to Internal Complaints Committee for presiding over enquiry and dealing with complaints;

d)      Taking disciplinary action when an allegation of sexual harassment has been proved;

e)      Encouraging employees to raise any issue of sexual harassment;

f)        When an outside party is alleged to have subjected employee to sexual harassment, helping the employee to initiate action against such person; and

g)      Carrying out employee awareness programs.

IV Penalties

The Act has imposed a penalty of fifty thousand rupees for:

(a) Non-establishment of internal committee by the organization.

(b) Not submitting the annual report by the Internal Committee.

(c) Not submitting the inquiry report by the Internal Committee.

(d) Not taking action against false complaint/evidence.

The Act also provides that if an employer is convicted again for same offence then he may be punished with twice the punishment as prescribed under the Act. Moreover his licence may be cancelled or the registration required by him for performing his business or activity may be withdrawn or not renewed.

V Conclusion

It is about time that society shows a ‘zero tolerance’ attitude towards this shameful act. These humiliating acts tend to discourage women from taking up vocations of their choice or force them to be silent sufferers at the workplace.

This beneficial piece of legislation cannot be considered to be an all- encompassing one as it has to plug a few loopholes. As matters of sexual harassment demand sensitivity and responsible action from the managing authority, conciliation as mode of settlement of said issue may not be a favourable measure. Such an act of harassment causes a psychological impact on the aggrieved woman and she may not be in a stable frame of mind to settle this issue through conciliation. Also, this legislation poses a daunting task for the employer to establish Internal Complaints Committee at every office of the organisation. Further, the time bound redressal of such matter by the employer may face roadblocks as these issues need thorough investigation and assessment of the complaints.

Nevertheless, it is a significant and positive step that a law governing sexual harassment at the workplace has been codified, as it has established a formal system for tackling this grave issue.

 

[i] AIR 1997 SC 3011

[ii] Preamble to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[iii]Section 354A-‘Sexual harassment and punishment for sexual harassment’ has been added by the Criminal Law (Amendment) Act, 2013. The punishment for sexual harassment varies between 1-3years depending on the nature of the crime. The Criminal Law (Amendment) Act, 2013 has provided that crimes of this nature will now be considered as bailable offence

[iv] Section 19(g) and Section 19(h), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[v] Section 2(n), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[vi] Section 3, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013