India’s sexual harassment law wouldn’t be effective unless we fix the issue of ‘Limitation’

by | Feb 7, 2021

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About Swapnil Tripathi

Swapnil Tripathi is a graduate student pursuing the Bachelor of Civil Law at the University of Oxford. He is an advocate who has practiced before the Supreme Court of India and the Delhi High Court

Citations


Swapnil Tripathi, “India’s sexual harassment law wouldn’t be effective, unless we fix the issue of ‘Limitation’”, (OxHRH Blog, February 2021), <https://ohrh.law.ox.ac.uk/indias-sexual-harassment-law-wouldnt-be-effective-unless-we-fix-the-issue-of-limitation/>, [Date of access].

Recently, the High Court of Delhi (India) refused to entertain a challenge to the dismissal of a Judicial Officer, who was found guilty for sexually harassing a Court Officer by the Internal Complaint Committee. This is one of the rare cases, where India’s otherwise ineffective law on sexual harassment has proven effective. Often, the strict procedure provided under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“Act”) acts as a roadblock and defeats the very purpose behind its creation. One such strict provision, is the one on limitation.

The Act was enacted in the year 2013, to give effect to the Convention on the Elimination of all Forms of Discrimination against Women. While recognizing that sexual harassment violates the fundamental rights of women to equality, trade and occupation, life and dignity under the Indian Constitution, it inter alia aimed to provide for a redressal of complaints of sexual harassment. The Act mandated creation of an Internal Complaints Committee (“ICC”) in every workplace that shall make an inquiry into the complaints of sexual harassment in the institution. However, even before a complaint can reach the stage of substantive adjudication, it is often dismissed on the procedural ground of limitation.

Section 9 of the Act stipulates that a victim of sexual harassment has to make a complaint within a period of three months from the date of the incident. This period may be extended by three months, if the Committee is convinced that there existed circumstances that prevented the woman from filing the complaint within the limitation. The Courts have interpreted this provision strictly. For instance, in Vishwesh Dayal Shrivastava v. Union of India and Ors, 2016 (8) ADJ 597, the Allahabad High Court refused to accept a complaint on the sole ground of limitation and no inquiry on the merits was undertaken. A similar approach was followed by the Delhi High Court in Atul Kumar Mittal v. IIT Delhi and Ors., 2019 Lab IC 2211, where a Professor was accused of harassing his student.

In such cases, the victim has the option of either letting the abuser go scot-free or pursuing a criminal action under the Indian Penal Code. The criminal justice system in India is infamous for its slow pace, where a case continues for years before a verdict is reached. The system is particularly apathetic to women, who have often complained of facing harassment at the hands of the officials while they pursued a harassment claim. Additionally, there is a low rate of conviction, in harassment cases as well. The ICC on the other hand, takes care of the above concerns. First, one half of the total members of the ICC should be women, which ensures that its proceedings are empathetic towards the victim. Second, the ICC is mandated to complete its inquiry within 90 days of the complaint. A time bound inquiry ensures that the complaint is dealt with timely and the victim does not have to go through the trauma of a prolonged inquiry.

By a strict interpretation of limitation, we close the doors of the ICC for a victim and deprive her of its benefits. As a result, scholars have time and again called for harmonizing the Penal Code with the Act, so as to allow the ICC to entertain complaints beyond the limitation period. A strict limitation ignores that a victim of harassment, often takes time to muster courage to speak out against an alleged harasser. The ICCs proved particularly ineffective during the complaints that emerged during the #MeToo movement. Fixing the issue of limitation shall make the law effective and help it achieve its intended aim.

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