Cabinet clears Sexual Harassment Bill

Source: CNN-IBN

New Delhi: Women employees in India can now sue their colleagues for sexual abuse and harassment after the Union Cabinet on Thursday finally approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in Parliament.

The bill seeks to ensure protection of women against sexual harassment at the workplace, both in public and private sectors whether organised or unorganized.

Women can now complain against harassment ranging from physical contact, demand or requests for sexual favours, sexually coloured remarks or showing pornography.

The bill, applicable to all organised and unorganised sectors, also has a penalty provision for employers who do not comply.

Implementation of the Bill will be the responsibility of the Central Government in case of its own undertakings/establishments and of the State Governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory.

Through this implementation mechanism, every employer has the primary duty to implement the provisions of law within his/her establishment while the State and Central Governments have been made responsible for overseeing and ensuring overall implementation of the law. The Governments will also be responsible for maintaining data on the implementation of the law.

Salient features of the Bill are as follows:

1) The Bill proposes a definition of sexual harassment, which is as laid down by the Honourable Supreme Court in Vishaka vs State of Rajasthan (1997). Additionally it recognises the promise or threat to a woman's employment prospects or creation of hostile work environment as 'sexual harassment' at workplace and expressly seeks to prohibit such acts.

2) The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors.

3) The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee. Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.

4) Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to Rs 50,000.

5) Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.

6) The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee.

7) The Bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.

The Original article can be found here.


The Entire Text of the Judgment in Vishaka v. State of Rajasthan is available here.

Happy Diwali

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Arbitration Agreement - Can be only enforced against the Parties thereto

The Supreme Court recently dealt with the question whether a guarantor for a loan, who is not a party to the loan agreement containing the arbitration agreement executed between the lender and borrower, can be made a party to a reference to arbitration in regard to a dispute relating to repayment of such loan and subjected to the arbitration award.

The broad principles that emerge from the Judgment is where there is no arbitration agreement between the parties, the impleading of such party appellant as a respondent in the arbitration proceedings and the award against it in such arbitration cannot be sustained.

The Supreme Court has observed that;

6. The following contentions are urged by the appellant : (i) The appellant was not a party to the tripartite loan agreements executed among respondents 1, 2 and 3 (that is the lender, the borrower and borrower's Managing Director-cum-Guarantor) containing the arbitration clause. He had merely given a short letter dated 27.10.1995 standing guarantee for a loan of Rs.75 lakhs sanctioned by the first respondent. As there was no arbitration agreement between the first respondent and appellant, the claim against the appellant could not be referred to arbitration, nor could any award be made against him. The awards against the appellant were therefore liable to be set aside under section 34(2)(a)(ii) of the Act.

(ii) The appellant had merely given a letter dated 27.10.1995 indicating his willingness to stand guarantee, but he did not execute the loan agreement or any deed of guarantee, as it was decided that the third respondent would be the guarantor instead of appellant. Consequently, the third respondent executed the loan agreement as guarantor as also a deed of Guarantee. Therefore, the appellant was not a guarantor and is not liable.

(iii) Even assuming without conceding that there was an arbitration agreement between the appellant and first respondent, and that he was liable in respect of the loan amount, there could be no award for interest against him as he had not agreed to guarantee the payment of interest.

Interpretation of Will : Contradictory Stipulations

A bench comprising Justice Markandey Katju and Justice T.S. Thakur has explained the law regarding the interpretation of contradictory stipulations in Wills. In our earlier post titled 'The Law relating to Wills' we had endeavored to explain the various principles of interpretation of Wills, which have been developed over the years by the Courts.

The present topic deals with the aspect of Contradictory Stipulations in Wills and its effect on the bequest. The Supreme Court has discussed the aforesaid concept in detail and have culled out the principles of interpretation invloved in such cases.

8. In (Kunwar) Rameshwar Bakhsh Singh's case (supra) the Privy Council held that where an absolute estate is created by a Will in favour of the devisee, other clauses in the Will which are repugnant to such absolute estate cannot cut down the estate; but must be held to be invalid. The following passage summed up the law on the subject: "Where an absolute estate is created by a Will in favour of the devisee, the clauses in the Will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid."

9. In Radha Sundar Dutta's case (supra), this Court was dealing with a situation where there was a conflict between two clauses appearing in the Will. This Court ruled in favour of the earlier clause, holding that the later clause would give way to the former. This Court said:

"..........where there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa".

10. The issue came up for consideration once again before a Constitution Bench of this Court in Ramkishore Lal's case (supra). In that case too the Court was concerned with the approach to be adopted in a matter where a conflict arises between what is said in one part of the testament vis-`-vis what is stated in another part of the same document especially when in the earlier part the bequest is absolute but the latter part of the document gives a contrary direction about the very same property. This Court held that in the event of such a conflict the absolute title conferred upon the legatee by the earlier clauses appearing in the Will cannot be diluted or taken away and shall prevail over directions contained in the latter part of the disposition. The following passage from the decision is instructive: "The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo (1960) 3 SCR 604. It is clear, however, that an attempt should always be made to read the two parts of the documents harmoniously, if possible. It is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void."