You may have come across instances in the news of patients, attendants and those trying to access health care services being sexually harassed. What does one do in such a scenario? When the whole world seems to be crumbling around you trying to find access to adequate healthcare, yet you are reminded that just because there is a pandemic doesn’t mean you should negate your basic instincts of keeping secure as it could become a breeding ground for violence? What do you do when your trust is betrayed by those who have sworn to take care of you?
What can be done in response?
Most places where one would access healthcare services are mandated to abide by The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules2013 (Posh law). The Act specifically mentions its applicability to hospitals and nursing homes in Section 2(o) (iii). Under the law any ‘workplace’, with 10 or more employees, is mandated to constitute an Internal Committee (IC) to investigate complaints of sexual harassment.
In the case of Global Health Private Limited and Ors. Vs: Local Complaints Committee, District Indore and Ors., the failure to constitute an Internal Committee by a hospital resulted in a penalty of 50,000 rupees and further amount in damages to the complainant.
Despite such a mechanism in place, in the COVID-19 context, there may exist other practical considerations which one may need to address some of which have been elucidated below –
Who can file the complaint of sexual harassment and where would you file it if you are a Patient/ Attendant/ volunteer?
One of the first questions that may arise on hearing or listening of a sexual harassment allegation is who is authorised to file such a complaint when sexually harassed patient, or attendant who has come to the hospital to avail services isn’t an employee and the harassment isn’t experienced in their workplace. The Posh law under Section 2(a) allows for any woman whether employed or not, who has been subjected to sexual harassment, to file a complaint. Thus, it is clear that the law would allow any person who is merely availing services (Patient), even accompanying someone who is (Attendant) or volunteering to support those in need can file a sexual harassment complaint against anyone employed or working at the healthcare provider
The next question is where should the individual file the complaint?
The aggrieved woman should file the complaint with the Internal Committee (IC) of the healthcare provider where she has faced sexual harassment, or with the employer of the person who she alleges has committed the sexual harassment (in absence of information of IC).
What to do in cases where patients are not physically or mentally fit to file a complaint?
In the context of COVID-19 patients who have been sexually harassed whilst undergoing treatment or hospitalization, filing a written complaint may seem impractical or at least difficult, especially if they are physically unfit or mentally incompetent, even if for the time being.
In such a scenario, the Posh law under Section 9(2) and Rule 6 allows for the aggrieved woman’s relative, friend, co-worker, or any person who has the knowledge of the incident, to file the written complaint as long as they have the written consent of the aggrieved woman in case of latter being physically unfit.
The law even allows for the written complaint to be filed in the unfortunate circumstance of the aggrieved woman having passed away, wherein the complaint can be filed by any individual aware of the incident with the written consent of the legal heir of the aggrieved woman.
Can Sexual Harassment complaint be filed against the person belonging to the same gender as the complainant?
Although the Posh law is very clear on the gender of the complainant (woman) it does not specify the gender of the person committing the sexual harassment as under Section 2(m) Respondent is defined as a person against whom an aggrieved women makes a complaint under the Posh law. This was further reiterated in the case of Malabika Bhattacharjee vs Internal Complaints Committee, Vivekananda College and Ors Nov 2020, Calcutta High Court reiterated that Section 9 (filing of the complaint of Sexual harassment) does not preclude a same gender complaint under the Act.
What to do in cases where the sexual harassment is committed in the ambulance while travelling to the hospital?
In one of the news pieces mentioned in the article on “Sexual Harassment in Healthcare systems”, a patient was sexually harassed whilst traveling in an ambulance, which brings forward the question of whether an aggrieved woman can file a complaint while enroute the hospital. The Posh law categorically states under Section 3(1) that ‘no woman shall be subjected to sexual harassment at any workplace’. Whilst “workplace” has been defined under [Section 2(o)(v)] ‘as any place visited by the employee arising out of or during the course of the employment including transportation by the employer for undertaking such journey.’ In this specific instance although the aggrieved woman is not an employee, the ambulance for an ambulance attendant should be ‘a place arising out of the course of the employment’ and would also include transportation in the course of their employment as a first responder in a health emergency. Therefore, a case can be made against such an individual with IC of the organization in which the ambulance attendant works.
What to do where the aggrieved woman reports after the limitation period is finished?
The Posh law allows for the complaint to be filed by an aggrieved woman in writing within three months from the last date of incident (Section 9). This time line can be extended to a further three months at the discretion of the IC if it is satisfied that the circumstances prevented the woman from filing the complaint within the initial three months, provided the reasons are recorded in writing (Section 9) .
In cases where either the attendant (caretaker of the patient) or the patient themselves are the aggrieved woman there may exist justifiable reasons for the extension of the timelines. One can also draw inspiration from the Supreme Courts case of In Suo Motu Writ Petition (Civil) No(s).3/2020 dated23rd March 2020, wherein the Supreme Court stated that “It is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.”
Vide order dated 27th April 2021, it restored the order dated 23rd March 2020 and has extended the limitation period until further notice.
What can be done by those individuals who are subjected to sexual harassment whilst carrying out their work duties in the community?
As we saw in the blog, there have been cases where ASHA workers, who are community health workers currently working at the frontline during the COVID-19 crisis, are subjected to sexual harassment by strangers whilst carrying out their duties in the community. The legal recourse in such situations would be for those who have faced sexual harassment to file a complaint with the police under other existing laws such as Indian Penal Code, 1860 (IPC). Despite this being sexual harassment at the workplace for the many individuals such as ASHA workers, the individuals who are harassing them are not employees of the same institution as those harassed , thus limiting the organization’s ability to take any action directly against such individuals from the community. Therefore, the best course of action would be to file a complaint with the police and allow the court system to inquire into the complaint.
Does a complaint under the IC restrict the aggrieved individual from approaching the police?
In cases where the aggrieved woman has filed a complaint with the IC of the Respondent’s (perpetrator ) workplace she still has recourse to parallelly file a complaint with the police. This has been clearly laid out by the Supreme Court in April 2019 in the case law The Secretary, Lucy Sequeira Trust And Anr. v. Kailash Ramesh Tandel where is was held that “It is well settled that a departmental proceeding and proceedings in a criminal court are completely different. The purpose is different, the standard of proof is different, and the approach is also different. The initiation of the process in a departmental proceeding, especially on charges with which we are concerned in the present matter can never be said to be amounting to contempt of court even if the criminal proceedings were pending”.
Respite under any other laws
Sexual harassment committed against any woman in the process of seeking medical help or access to healthcare for themselves or their family would amount to violation of their fundamental rights. It would violate the aggrieved woman’s right to equality under Article 14 and 15 of the Constitution of India and her right to life and right ‘to live with dignity under Article 21 of the Constitution as well as a right to health, which although not specifically elucidated in the Constitution, the Supreme Court has through judicial interpretation ensured that it is read within the provision of Right to life.
An aggrieved woman also has recourse under criminal law enshrined in the Indian Penal Code, 1860 under various provisions depending on the specific facts of each case, for example stalking, voyeurism, etc.
Thus, no matter the situation, there exist laws and legal framework which are applicable for the prevention, prohibition, and redressal of women against sexual harassment even during an unprecedented health crisis.
– Sana Sud, Advocate & Associate, POSH at Work