Lawyers Collective – Prevention of Sexual Harassment Policy

1. Background:

1.1. Sexual harassment is an act of power, and a public violation of a woman’s
dignity that is often trivialized by labelling it an interpersonal transgression.
Such behaviour is an affront to dignity, gender equality and fundamental rights.

1.2. Sexual harassment is contrary to anti-discrimination provision in the
Constitution of India:
i. Article 15 prohibits discrimination on the grounds of religion, race,
caste, sex or place of birth, and
ii. Article 19(1)(g) upholds a person’s right to ‘practice any profession, or
to carry on any occupation, trade or business’.

1.3. The Sexual Harassment of Women at Workplace (Prevention, Prohibition &
Redressal) Act, 2013 No. 14 of 2013 (hereinafter referred to as “The Act”) has
laid out that it is the duty of the employer to prevent or deter the commission of
acts of sexual harassment. Sexual harassment is also a criminal offence under
Section 354A of the Indian Penal Code.

1.4. The Hon’ble Supreme Court of India’s judgement in Vishakha v. State of
Rajasthan dated August 13, 1997, has stated that every instance of sexual
harassment is a violation of fundamental rights under Articles 14, 15, 21 of the
Constitution and amounts to violation of the ‘right to freedom’ under Article
19(1)(g). It has further laid down that “it shall be the duty of the employer or
other responsible persons in work places or other institutions to prevent or
deter the commission of acts of sexual harassment and to provide the
procedure for the resolution, settlement or prosecution of acts of sexual
harassment by taking all steps required”.

1.5. Lawyers Collective is bound by the Act as it is an NGO carrying on professional
distribution of service and hence comes within the meaning of ‘workplace’
under the Act. Following this, Lawyers Collective endeavours to put in place
adequate measures to ensure safety, security, dignity, rights and equality of all
persons who work within its set-up. It is with this object that these Rules have
been framed.

2. Objectives and Scope of these Rules

2.1. These Rules reiterate the commitment of Lawyers Collective to create and
maintain a community in which all persons of all identities and genders can
work together in an environment free from all forms of sexual harassment, and
work as colleagues to develop their potential, through interventions and
practice.

2.2. The objective of the policy is to promote a workplace free from sexual
harassment, prevent and minimize harassment of sexual nature, and provide
an appropriate complaint mechanism to redress the complaints and ensure
time bound redressal.

2.3. These Rules and procedures apply to:
i. All staff and employees of Lawyers Collective, regardless of the nature of
their contract, duration of employment or position in the organisation, or in
voluntary or honorary capacity or any other position in the organisation;
ii. Any outsider who may be within the premises of Lawyers Collective at the
time of commission of the act/ behaviour coming under the purview of
these Rules;
iii. All clients to come for services;
iv. All volunteers and interns, regardless of the duration of their association
with the organisation;
v. All employees of partner law or any other organisations who come in
contact with Lawyers Collective staff as a result of the role in Lawyers
Collective.

2.4. The Rules are also applicable across all offices of Lawyers Collective, and
other places where employees find themselves in connection with official work
assigned to them (including attending to workshops, field work, meetings, court
visits, group excursions organised by Lawyers Collective, traveling for such
activity).

2.5. Pursuant to the Act, one Internal Complaints Committee shall be formed at the
Office of Lawyers Collective in New Delhi, which is the body responsible to
uphold the principles of this policy and also ensure the implementation of the
Act in all Lawyers Collective’s offices.

2.6. These Rules are in sync with the guidelines and procedures laid down by the
Act. It is the duty of all staff which includes the employer, part-time or casual
employees, volunteers and interns to comply with these Rules.

2.7. In particular, these rules and procedures laid down shall be applicable to all
complaints of sexual harassment made by a member of the staff or employee
or an outsider irrespective of whether sexual harassment is alleged to have
taken place within or outside offices of Lawyers Collective.

3. Definitions:

3.1.aggrieved person’ means any person, irrespective of any gender, age, sex, caste, religion, dwelling place etc., who alleges to have been subjected to any act of sexual harassment by the respondent.
3.2.complainant’ means,- (i) an aggrieved person; or (ii) Self and on behalf of others, in the case of more than one aggrieved person; or (iii) an eye-witness or family member of the aggrieved person, in case the aggrieved party is not in a physical or mental condition to do so or the victim has passed away.
3.3.damage’ means mental and physical injury to the aggrieved person or the humiliation suffered thereof.
3.4.respondent’ means any person against whom a complaint is filed by a complainant.
3.5.retaliation’ means any act to obstruct free and fair inquiry and hearing, till the final decision of the Internal Complaints Committee is communicated to the complainant and the respondent
3.6.sexual harassment’ includes any one or more of the following unwelcome acts or unwanted behaviour (whether directly or by implication) namely:
i) Physical contacts and advances; or
ii) A demand or request for sexual favours; or
iii) Making sexually coloured remarks; or
iv) Showing pornography; or
v) or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Explanation: Within Lawyers Collective, this definition applies equally to all genders and also includes harassment by a member of one sex to a member of the same sex.
3.7.staff or employee’ shall mean any person employed by Lawyers Collective in all offices including full- time, part-time, temporary, voluntary, seconded, contracted or casual staff, researchers, trainees, ad hoc, special duty, deputation, and interns and persons employed on a casual or project basis.
3.8.workplace’, in relation to an employee, means any place where an aggrieved person or respondent is employed or works, or visits in connection with work during the course of or arising out of employment

4. Composition of the Internal Complaints Committee:

4.1. The Internal Complaints Committee shall consist of five (5) members in total, which are:
i) One (1) Presiding Officer- who shall be a woman employed at the senior level at the workplace;
ii) Three (3) Internal Members- who shall be employees at the workplace;
iii) One (1) External Member- who shall be an expert in the field of furthering women rights; this could be an experienced person from an NGO, an activist, or a legal expert from outside Lawyers Collective.

4.2. No member shall be part of the Internal Complaints Committee for more than a period of 3 years from the date of nomination as may be specified by the employer. The only exception of extension in any member’s tenure would be in case of an ongoing investigation.
4.3. The composition of the Internal Complaints Committee will be separately notified and put up on a notice board prominently. Members of the Internal Complaints Committee are eligible for re-nomination.

5. Manner and procedure of filing the complaint

5.1. Complainant shall file a complaint to any member of the Internal Complaints Committee, in writing or by email or orally, within six months of the incident or from the last incident in case of series of incidents of sexual harassment.
5.2. The time period shall be further extended by the Internal Complaints Committee by a period of six months in cases of exceptional circumstances, but in no case more than one year.
5.3. The complaint must bear the date and signature/ thumb impression of complainant. It shall record details of harassment, date, time and place of occurrence.

6. Procedure for inquiry:

6.1. One written copy of the complaint must be received (in writing, by email or a transcript by a Committee member of an oral complaint). A copy of the complaint must be submitted with the details of the witnesses to the Internal Complaints Committee.
6.2. One copy of the complaint has to be given to the respondent within 7 days from when the complaint was received.
6.3. Within 10 days of receiving a copy of the complaint and other accompanying documents, the respondent has to respond with documents and details of witnesses.
6.4. The inquiry can be terminated or proceeded with ex parte when the respondent does not cooperate if the complainant states that the complainant does not wish to proceed with the enquiry or if the party (either the complainant or the respondent) does not present themselves for two consecutive hearings despite notice.

6.5. No lawyer is allowed to represent either party.
6.6. A minimum of three members are required to conduct the inquiry, which must include the presiding officer and one external member.
6.7. For the implementation of these Rules, the Internal Complaints Committee shall report all matters to the employer and the employer shall act as Management for the purpose of this policy and the Act. In case of an allegation against employer is being investigated by the ICC, the Management would mean the Board Chair or any other Trustee of Lawyers Collective who shall have the power to constitute a committee.

7. Procedure for conciliation:

7.1. The Internal Complaints Committee may before initiating an inquiry, at the request of complainant, take steps to settle the matter between the parties through conciliation provided that no monetary settlement shall be made as a basis of conciliation.
7.2. Where a settlement is arrived, no further inquiry shall be conducted by the Internal Complaints Committee.
7.3. The Internal Complaints Committee shall provide copies of the settlement as recorded to the complainant and the respondent.

8. Powers, Functions and Meetings of the Internal Complaints Committee:

8.1. The Internal Complaints Committee must adhere to the principles of natural justice when inquiring into the complaint.
8.2. The members of the Internal Complaints committee shall be sensitive to the issue of sexual harassment and shall not let personal biases and prejudices and stereotypes to affect their functioning as members.
8.3. The Internal Complaints Committee shall create awareness about what constitutes sexual harassment, and deal with, or punish acts of sexual harassment in a manner prescribed by law if a staff or employee is found guilty of sexual harassment. The Internal Complaints Committee may also order payment of compensation by the respondent to the aggrieved person for the "damage" caused to them.
8.4. The functions of the Internal Complaints Committee include gender sensitisation, and awareness generation, and deciding on complaints received about sexual harassment, including receipt of complaints, screening, informal mediation, conducting formal inquiry and redressal.
8.5. The Internal Complaints Committee shall resolve the dispute in a speedy manner and maintain confidentiality of the complainant(s) and the respondent(s) at all times.
8.6. The Internal Complaints Committee shall meet twice a year with all staff and employees to conduct a sexual harassment prevention and sensitisation training. Staff and employees shall be informed 5 days in advance about the same.
8.7. The Internal Complaints Committee for the purpose of creating gender sensitisation and awareness generation shall perform the following functions:
i) These Rules in its entirety shall be made available at the front desk of all offices of Lawyers Collective and these Rules shall be appropriately publicised.
ii) These Rules will be translated in Hindi in order to be accessible for all the members.
ii) All new staff and employees must accept these Rules as a part of their service.

9. Punishments:

9.1. The penalties for staff and employees shall be as prescribed under the Act.
9.2. Any retaliation against the complainant or against individuals cooperating with an investigation of a harassment complaint is similarly unlawful.
9.3. In addition to the penalties, the person found guilty may be advised to undergo counselling and gender sensitisation and to give a written and/ or public apology to the complainant.
9.4. Before any action is taken under this clause, the respondent shall be given an opportunity to show cause as to why the proposed action should not be taken against them.

10. Appeals: In case any party is dissatisfied with the conclusions/ recommendations/ punishments given, they shall have the right to appeal to the Board of Trustees of the Lawyers Collective.

11. False/Malicious Complaint/ Depositions:

11.1 Where the Internal Complaints Committee arrives at a conclusion that the allegation against the respondent or complainant is malicious knowing it to be false or the complainant has produced any forged or misleading document, it may recommend to the employer to take action against the complainant in a manner as prescribed:
Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this Rule:
Provided further that the malicious intent or part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended.
11.2. Where the Internal Complaints Committee arrives at a conclusion that during the inquiry any witness has given false evidence or produced ay forged or misleading document, it may recommend to the employer of the witness to take action in such manner as prescribed.
11.3. The Employer is bound to take action within 5 days against the person involved in such malice. Here, the nature of action to be taken may include the penalties such as:
i. Warning, reprimand in writing, or censure to be placed on record;
ii. Voluntary leave for a period of time
iii.Withholding of one or more increments for a period not exceeding one year
iv. Removal from a position of authority
v. Suspension from service for a limited period of time
vi. Dismissal of service
vii.Right to an official character certificate may be withdrawn where applicable.

12. Determination of Compensation: The determination of compensation shall be made on following grounds:

i. The mental trauma, pain, suffering and emotional distress caused to the aggrieved person.
ii. The loss in career opportunity.
iii.Medical expenses incurred due to physical or psychiatric treatment.
iv. Income and financial status of the respondent.
v. Feasibility of such payment in lump sum or instalments.

13. During pendency of the inquiry: On a written request of the aggrieved person, during the pendency of the inquiry, the Internal Complaints committee may recommend to the employer to:

i. Transfer to other office or grant leave the aggrieved person up to a period of three months; and/or
ii. Grant interim-compensation towards the aggrieved person’s medical expenses and/ or psychological counselling, and/or
iii. Grant other such relief.

14. Non-Disclosure or Publication: Any complaint, the identity of the aggrieved person, respondents and witnesses, any information relating to conciliation, compensation, settlement, inquiry proceedings, recommendations and actions taken shall not be disclosed or published to public, press and media in any manner by the concerned parties and the members of the Internal Complaints Committee till the proceedings under these Rules are complete.

15. Criminal Proceedings: In the event the conduct complained of amounts to a specific offence under the Indian Penal Code or under any other law in existence, the Internal Complaints Committee shall after taking the written consent of the aggrieved person recommend to employer to take appropriate action in making a complaint with the appropriate authority.

16. Conflict of interest: In the event that a complainant wants to bring in light of a conflict of interest of any member of the Internal Complaints Committee, they can give so in writing to any other member of the Internal Complaints Committee with proof of the conflict.
17. Pursuant to which, the same shall be considered with other members and if found to be of genuine nature, the member may be replaced for that case with some other nominated member.

18. Other considerations:

18.1. The proceedings under these Rules shall not be stalled or postponed merely because the complainant is proceeding against the accused under any other provision of law.
18.2. The provisions of these Rules shall not restrict the powers of the employers or the complainant to proceed against the alleged offender for any other misconduct or other legal remedies.
18.3. The policy will be reviewed from time to time and revised to keep it up to date with changes in state acts, employments policies or lessons learnt. The process for review will also consult all staff and seek advice externally.
18.4. The Internal Complaints Committee will minute all its meetings and proceedings and submit quarterly reports to the Senior Management Team.