The Indian SHW (Prevention, Prohibition & Redressal) Act, 2013 is now over 2 months old. It is too early to comment on how Indian Companies are responding to it.

Yesterday after delivering a lecture on legal provisions of the Act, a lady HR executive of large Indian company walked up to me and asked a surprising question. She said “Our Management thinks that if it has to implement the law in true sense, it will require annual budget of about Rs. 25 Lacs. Not that budget is a problem, but merely providing the budgetary support may not be enough. Setting up committees all across, undertaking awareness programs, conducting mandatory training and then wait for some complainant to take us through protracted litigation is a nuisance and risk to reputation. Therefore our Management has discouraged hiring any female employees. About 40% of new joiners used to be female employees. Last 2 months not a single female has been hired. They think that is a better solution. Is there any legal provision by which I can force them to hire female employees?” I was completely foxed!! Tried explaining Fundamental Rights under the Constitution of India about gender equality, attempted to put across CEDAW treaty obligations, gave a sermon about how efficiency may come down etc. However, I was unconvincing.

The key-note speaker had started the SHW workshop by saying the problem of harassment especially sexual harassment is as old as the mankind. This really set my thoughts in motion. Have we as a civilized society moved forward from our age old beliefs? When we trace the origin of our laws in India and especially Hindu Laws, we cannot but admire the source of Manusmruti. Manu The Manusmriti also known as Manav Dharam Shastra, is the earliest metrical work on Brahminical Dharma in Hinduism. According to Hindu mythology, the Manusmriti is the word of Brahma, and it is classified as the most authoritative statement on Dharma .The scripture consists of 2690 verses, divided into 12 chapters. It is presumed that the actual human author of this compilation used the eponym ‘Manu’, which has led the text to be associated by Hindus with the first human being and the first king in the Indian tradition.[i]

It is interesting to capture a couple of very derogatory statements in the context of SHW.

1. “Swabhav ev narinam …..” – 2/213. It is the nature of women to seduce men in this world; for that reason the wise are never unguarded in the company of females.

2. “Balya va………………….” – 5/150. A female child, young woman or old woman is not supposed to work independently even at her place of residence.

3. “Vandyashtamay…….” – 9/80. A barren wife may be superseded in the 8th year; she whose children die may be superseded in the 10th year and she who bears only daughters may be superseded in the 11th year; but she who is quarrelsome may be superseded without delay.

On the contrast Charvak thinking that is rebellious to Manu. It believed that the agriculture was the discovery of the women, the initial stage of the agricultural economy created the material conditions for the social superiority of the female.[ii]

It is horrifying to imagine that deprivation of employment to women could be one of the consequences of the SHW Act. We need Charvak’s who can oppose this thought process at the threshold.

The SHW Act must result in heavy compensation, damages and punishments. There are some very critical provisions that need to be highlighted here.

  1. The workplace for a domestic worker includes a dwelling unit. Urban India has always employed female domestic workers for jobs like washing floors, clothes, utensils and the like. Sexual Harassment of housemaids in domestic places is very high and completely unreported. If as a result thereof system of hiring domestic workers reduces or stops, it may be a welcome consequence.
  2. The provisions relating to publication of names of Complainants appear to be very strong in its wordings but the consequences for disclosure seem wanting. In a sense, one can pay Rs. 5000 and disclose the name of complainant.
  3. The recommendations of Internal Complaints Committee (a) post the conciliation and (b) during interim stage of inquiry are binding on the Management of the Company. However the Management is mandated to only “act” on the ICC’s recommendations and not “accept” them. This may lead to protracted litigation if the Management wants to be stubborn.
  4. Like the Section 138 of the Negotiable Act for bouncing of cheques, the offences under the SHW Act are non-cognizable. Thus, unless someone invokes provisions of Section 354A of the Indian Penal Code, the law enforcement agencies will not take cognizance of the offence and thus the roasters of Judicial Magistrates would be further clogged.

The mandatory training, aspects of prevention and more particularly honest Redressal process would become critical for implementation of the SHW Act. Unless the Managements move away from Manu-like thinking and move towards Charvak not only the purpose of the SHW Act would be defeated but instead of it being legislation triggering social change, it could be a step in retrograde. It is therefore imperative to start implementing the SHW Act with self driven pledge the “I WILL PREVENT SEXUAL HARASSMENT AT WORKPLACE”




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