Sexual harassment at workplace

Information or report, preliminary or final, on sexual harassment should not find way to media which might sensationalise the sensitive issue of suffering of a woman and the harassment would be multiplied and hence the identity and addresses of complainant, respondent witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the ICC/LCC and the action taken concerned are protected from media. If a third person wants to know the detailed information about sexual harassment, this provision could be used to deny. But it cannot be denied to the complainant

A woman scientist alleged sexual harassment by a senior scientist in CSIR, and filed RTI application, seeking copy of the Fact Finding Committee (FFC) report of an Internal Complaints Committee (ICC), and action taken on it, etc. The CPIO pleaded that it was only a preliminary report, and the Chief Vigilance Officer directed that a copy of this report be not furnished until the final report is submitted.

The Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Section 11 says that the ICC has to make an inquiry into the complaint and if prima facie case existed, it has to forward within seven days on the complaint for registering a case under the Section 509 in police station, after giving the parties an opportunity to present their case.

During the pendency of inquiry, the ICC may recommend transfer of the aggrieved or the accused person, or grant leave to the victim up to 3 months, or grant such relief to woman as prescribed. Under the Section 13(i), the Internal Committee shall provide a report of its findings to the employer and the parties concerned within a period of ten days.

The Section 16 says: “Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint made under Section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner, provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.”

This is done in order to secure privacy, security and dignity of the complainant. The information should not find way to media which might sensationalise the sensitive issue of suffering of a woman and the harassment would be multiplied and hence the identity and addresses of the complainant, respondent witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the ICC/LCC and the action taken concerned are protected from media.

If a third person wants to know the detailed information about sexual harassment, this provision could be used to deny. But it cannot be denied to the complainant. This section states that the information regarding the justice secured to any victim of sexual harassment under this Act may be disseminated without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.

The public authority rejected disclosure of preliminary inquiry report, saying it would impede the process of investigation. The expression ‘report’ ordinarily means both the ‘preliminary,’ if any, and ‘final’ report. Disclosure is mandated by principles of natural justice, a judgement of Supreme Court, the Act 2013 and the Rules 2013, and the Right to Information about the action taken or report submitted after inquiry into her complaint is specifically guaranteed and made enforceable by the RTI Act, 2005. The preliminary report falls under the category of 'information' held by the public authority under Section 2(f) of the RTI Act, 2005 that has to be provided to the appellant.

The very purpose of providing a specific right to copy of inquiry report under the Section 13 of Act of 2013 is to help the women-victims from tactics of other officers acting together to deny the information and remove the chances of appeal. The complainant alleged bias of CPIO and some officers of public authority in favour of the accused as they have provided a copy of inquiry report to him to enable him to secure bail, whereas it was denied to her to prevent her from taking further steps.

The Supreme Court held that sexual harassment of woman at workplace will constitute breach of her right to life under Article 21, right to equality under Article 14 and Article 15, right to work in office, to which she was duly selected. The provisions of RTI Act also gave certain rights and right to information to the complainant-victim. She has a right:

a)To completion of inquiry by internal complaints committee within 3 months, as per Section 9;
b)To conduct inquiry according to procedure and norms prescribed under section 11;
c)To know transfer of the accused or transfer of complainant of sexual harassment for safety, and recommendations to that extent from the internal complaints committee, during pendency of inquiry under Section 12(1); and
d)To a copy of inquiry report as per Section 13(1), within 10 days of its completion.

The applicant/complainant in this case has a right to know the reasons if the above rights are not implemented. RTI Act under Section 4(1) (c) mandates the public authority to publish all relevant facts while formulating important policies or announcing the decisions which affect public.

The Section 4(1)(d) mandates to provide reasons for its administrative or quasi judicial decisions to the affected person.

The Department of Personnel and Training OM. No. 11013/2/2014 Estt (A.III) dated 27th November 2014 deals with alignment of Service Rules (CCS (Conduct) Rules, 1964) with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The Rule 3-C of CCS (Conduct) Rules, 1964, states that: (1) No Employee of the Secretariat shall indulge in any act of sexual harassment of any woman at her work place; and (2) Every Employee of the Secretariat who is in charge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such work place.

Life & Liberty Angle
The Convention on Elimination of Discrimination against Women (CEDAW) as explained in Visaka’s case (Vishaka v. State of Rajasthan, AIR 1997 SC 3011: (1997) 6 SCC 241) recognised ‘Gender Equality’ under the ‘Right of Life and Liberty.’ The Chief Justice J S Verma stated:

“Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right of Life and Liberty’ …. The fundamental right to carry on any occupation, trade or profession depends on the availability of a safe working environment. Right to life means life with dignity. The primary responsibility for ensuring such “safety” and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive…”

The Supreme Court in Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625,concluded that sexual harassment at the workplace is a violation of women’s human rights and fundamental right under Constitution of India, specifically Srticles 21, 15, 19(1)(g)

The information sought in this case relating to complaint of sexual harassment at workplace can be treated as one concerning threat to her life and liberty as mentioned in Section 7(1) of RTI Act, considering the fact that ‘threat to dignity of women at workplace’ is nothing less than a threat to her life and liberty in view of seriousness of mental or physical harassment she undergoes.

The public authority should have provided a copy of inquiry report considering this as concerning life and liberty of the appellant within 10 days as per Section 13 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, if not in 48 hours, or at least in 30 days as prescribed under Section 7(1) of RTI Act RTI Act.

Information sought by the appellant/complainant of sexual harassment relating to inquiry report etc., has to be classified as information related to life and liberty, because both of these rights are threatened by sexual harassment.

The Commission issued show-cause notice to CPIO to explain why compensation should not be given. Besides, it directed the public authority to furnish certified copies of documents relied upon by the inquiry officer or Fact Finding Committee, FFC, report along with action taken report.

(Based on CIC decision in CIC/CSIRD/A/2016/306867 on 13.4.2017)