Indian laws on employee and workplace discrimination and harassment
India, the world’s second most populated country, possibly has the most varied cultures, religions and languages. At the same time, and unlike several developed countries, India lacks a comprehensive antidiscrimination law that can tackle all forms of discrimination. This article provides an overview of the basic laws in India that domestic and multinational companies need to know while dealing with employee discrimination and harassment issues in the workplace.
Anti-discrimination provisions under the Constitution of India
The advocacy for anti-discrimination can be traced to the innate provisions in the Indian Constitution. Article 15 prohibits the state from discriminating on the grounds of religion, race, caste, sex and place of birth in various day-to-day activities, including when it comes to providing equal employment opportunities. The Constitution does not, however, prevent positive discrimination or affirmative action that is based on discrepancies in gender, social or financial background or traditional caste-based disadvantage. It is for this reason that Article 15 also provides that the state can make special reservation for women and socially and educationally backward classes of citizens including scheduled castes/tribes in educational institutions.1 Further, Article 16 empowers the state to make reservations with respect to appointment for posts in favour of any backward classes of citizens if the state is of the opinion that such classes are under-privileged. The socio-economic rights under Article 39 in Part IV of the Constitution also urges the state to ensure that citizens, men and women equally, have the right to an adequate means of livelihood, right to shelter, food, education and work.
Protection under the Equal Remuneration Act
The Equal Remuneration Act, 1976 (ERA) addresses employee discrimination issues with respect to recruitment, wages, worktransfers and promotion. It provides for payment of equal remuneration to men and women workers, for same work or work of similar nature and for the prevention of discrimination against women in the matters of employment.2 Taking up the recruitment process, section 5 of the ERA prohibits the employer from devising a hiring process that puts women at a disadvantage on account of their gender. This is specifically in reference to work that is the same or similar to that which is offered to men and even in respect of transfers and promotions. The ERA also discourages the reduction of wages on purpose in order to fulfil the condition of equal remuneration.
Prohibition of sexual harassment against female employees
In 1997, the Supreme Court of India took it upon itself to lay down the Guidelines against Sexual Harassment at the Workplace (the ‘Guidelines’) in Vishaka and Others v State of Rajasthan and Others. 9 The Guidelines categorically lay down what constituted ‘sexual harassment’ and vest an obligation upon the employer (or other responsible persons) to provide for measures and procedures that will prevent and deter acts of sexual harassment done not only by persons within the establishments but third parties as well. The employer is also obligated to devise dispute resolution mechanisms and means to prosecute offensive acts. The Guidelines also specify that women must be provided with ‘appropriate work conditions’ in the areas of work, leisure, health and hygiene. In the absence of an inclusive codified law that covers prevention of sexual harassment of women at the workplace, the Guidelines have come to be regarded as a law in this respect. It is worth mentioning that, in December 2010, The Protection of Women Against Sexual Harassment at the Workplace Bill (the ‘Bill’) was tabled in Parliament and was eventually sent to the Parliamentary Standing Committee for discussions. The Bill seeks to provide a safe, secure and enabling environment, free from all forms of sexual harassment to every woman, irrespective of her age or employment status (other than domestic workers).10 Once enacted, it is hoped that this will soon fill up the void of a codified law on sexual harassment of women.
Protection under criminal law
Certain offences against women are treated as crimes and are subject to actions under the Indian Penal Code, 1860 (IPC). Section 354 of IPC specifies that outraging the modesty of a woman either through words or gestures will attract serious consequences such as imprisonment of up to two years or a fine or both. The victim has to prove that the accused assaulted the woman (or used criminal force) with the intention of outraging her modesty. Another penal provision is section 509 that deals with insulting the modesty of a woman. This may be through any words, gestures, sounds or exhibition of objects done with the intention of insulting her modesty. An offence under these provisions will make the offender liable to imprisonment of one year or a fine or both. Further, section 294 of the IPC deals with the issue of harassment due to the use of obscene language or gestures. As per the provision, an individual who, to the annoyance of others, does any obscene act in any public place, or sings, recites or utters any obscene song, ballad or words, in or near any public place, may be punished with imprisonment for a term of up to three months, or with a fine, or with both.