Disclosure of the documents provided for defending a case of sexual harassment
An interesting question came up before the Central Information Commission (CIC) - Should the documents provided by respondent to the Internal Complaint Committee (ICC) for defending the case of sexual harassment be disclosed under RTI? To understand the issue, let us first have a look at the background of the case and the relevant provisions.
All employers in India are required to sensitise the female employees of their rights and provide a safe working environment for its work force. It is not only obligatory to prevent sexual harassment and set up processes to deal with complaints in such cases, but also to support employees even when a third party was responsible for harassment. In the aftermath of the Public Interest Litigation (PIL) in Vishakha and others v State of Rajasthan, the Supreme Court held that:-
- Gender equality includes protection from sexual harassment and the right to work with dignity.
- Working with full dignity in a safe working environment is the fundamental right of a working woman.
- There can be no discrimination against women at the workplace.
The Vishakha judgment had recommended an Internal Complaints Committee (ICC) at all workplaces. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 expanded the "workplace" in the Vishaka Guidelines from the traditional office set-up to include organisations, department, office, branch unit etc. in both - the public and private sector, whether in organized or unorganized sector. It brought in its ambit the hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. ICC was made mandatory in a setup having more than 10 employees of any gender. Further, the government was required to set up a Local Complaints Committees (LCC) at the level of the district to examine the complaints regarding sexual harassment from formations where the ICC has not been constituted on account of the employee strength being less than 10 or if the complaint is against the employer. It was mandated that the ICC:-
- Should be headed by a woman employee,
- Should have not less than half its strength comprising of females, and
- Should include a third party such as an NGO committed to the cause of women and familiar with the issues relating to sexual harassment.
The ICC was entrusted with the responsibility of:-
- Examining all complaints of sexual harassment by any woman employee,
- Advising the victim on further course of action,
- Completing the inquiry within a time period of 90 days
- Recommend the course of action against the accused including interim measures, such as:-
- transfer of the victim or the respondent to any other workplace,
- granting leave to the victim up to a period of three months in addition to her regular leave entitlement.
The Act prescribes a monetary penalty of up to Rs 50,000/- in the case of non-compliance of the provisions. A repetition of the offence can result in the doubling of the penalty and / or de-registration of the entity / revocation of the statutory business license.
An employer is required to maintain confidentiality:-
- of the identity, name and address of the aggrieved woman, respondent and witnesses,
- of the specifics of the complaint,
- of the information relating to the enquiry and conciliation proceedings,
- of the recommendations of the ICC (or the LCC) and the action taken thereon.
To maintain confidentiality, the Act lays down that a penalty of Rs 5000/- could be levied on the person responsible for its breach. However, facts about the ‘justice’ secured to the aggrieved woman can be made public.
Facts of the case
An alleged victim of sexual harassment was not provided with the relevant documents of the enquiry based on which the concerned ICC adjudicated the matter. Vide an application filed under the RTI Act, the certified true copies of documents provided by respondent to the ICC for defending the case of sexual harassment and other related documents were sought by her.
The matter came up before the CIC on the grounds that the CPIO had not provided the desired information.
Arguments before the CIC
The Respondent submitted that certain information was denied as it pertained to the ICC enquiry proceedings and as per Section 16 of the Act, 2013 the same is prohibited from publication.
On behalf of the Appellant, it was argued that the denial is not apt in the instant case as the Act affords protection to the victims of sexual harassment and Appellant in this case is herself the victim and is therefore, not barred from getting the information under RTI Act. It was contended that the Appellant was not provided with copies of documents produced by the respondent impleaded in the ICC enquiry and that this denial of opportunity to peruse the documents relied upon by the ICC in exonerating the respondent is a clear violation of the principle of natural justice.
The legal provision involved
The CIC referred to the Section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013, which reads as under:
“16. Prohibition of publication or making known contents of complaint and inquiry proceedings. - Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 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.
Question before the CIC
Whether section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 operates as an embargo over the right of a victim/complainant of Sexual Harassment to access information relating to inquiry proceedings, recommendations of internal committee/local committee, statements of complainant/respondent and witnesses; under the RTI Act, 2005.
Views of the CIC
The CIC referred to the order of coordinate bench in File Nos. CIC/YA/A/2016/000299 and CIC/YA/A/2016/000282.
1. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted by the Parliament to prevent harassment of women at workplace besides prescribing panel provisions for the offenders. The Preamble of the aforesaid enactment reads:
An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
2. The CIC held that the intent of the legislature is loud & manifest. It is a settled principle of interpretation of statutes that the provisions of any enactment are to be interpreted in a manner which furthers the cause or purpose behind its enactment. Section 16 is enacted as a safeguard measure to check further aggravation of traumatic & stigmatic experience of a victim of sexual harassment by unwarranted disclosure of her identity.
3. Natural justice requires that all parties having proximate nexus with any judicial or quasi-judicial proceeding or its outcome to be kept abreast. The expression 'shall not be published, communicated or made known to the public, press and media in any manner' as employed in Section 16 of the Prevention of Sexual Harassment Act, 2013 operates against disclosures made to three categories only. They are public, press & media. The expression cannot be stretched to assign altogether different meaning so as to include the 'complainant' within the prohibited degree of classes, to deny information relating to proceedings under the Act. Accepting the contention of the CPIO would compound the harassment of the victim rather than mitigate it.
4. The CIC ruled that while dealing with any incidence of sexual harassment, the information relating to the proceedings & findings of ICC, must be voluntarily made available to the victim.
5. Section 16 of Prevention of Sexual Harassment Act, 2013 does not eclipse the right of a complainant/victim of sexual harassment to access the same under RTI Act, 2005. This section merely eclipses the right to know of the public at large, press and media only.
Order of the CIC
The CIC held that a complainant/victim of an incident of sexual harassment can access information through the RTI Act, 2005 and directed to provide all available information in respect of the RTI Application to the Appellant within 15 days from the date of receipt of the order.
Sexual harassment in its widest connotation encompasses anything at work that can place a working woman at a position of disadvantage compared to other male employees in her official career merely because she is a woman. It is an unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favours, showing pornography without their consent, and making unwelcome sexual remarks by any means. Sexual harassment at workplace is rampant in the country and is largely unreported. This judgment would empower an aggrieved women at workplace to make use of the RTI Act to effectively assert her rights. It would end the opacity around the way some of the ICC worked and aid in the realisation of gender equality by improving women's participation in work.
Citation:Reshma M G v. All India Radio in File No.: CIC/AIRCL/A/2017/101742/SD, Date of Decision: 04/01/2018