Domestic Workers to be Given Greater Legal Recognition and Protection in India

Safety and Security, Finally at Home!

Domestic workers in India can now begin to breathe easy as policy and legislative changes being contemplated by the Indian Government may bring much-needed recognition and protection to this class of workers.

Domestic workers have been a long-neglected category. Most labour laws in India have been formulated and govern the terms of employment of the organized sectors, employees of factories, shops and establishments and even migrant workers and contract labour employees, thus including other unorganized sectors too. However, domestic labour has, until recently, been mostly by-passed while legislating welfare laws for workers and employees.

Existing Legal Framework for the Social Security and Protection of the Rights Domestic Workers

The social security needs of a “home-based worker” (defined under the Unorganized Sector Workers Social Security Act, 2008 (Act 33 of 2008) as “… a person engaged in the production of goods or services for an employer in his or her home or other premises of his or her choice other than the workplace of the employer, for remuneration, irrespective of whether or not the employer provides the equipment, materials or other inputs”) have been partially addressed by their inclusion within the ambit of this law (which provides for social security schemes for the unorganized sector) for the purposes of being eligible for registration and the benefits in the form of social security schemes which are required to be formulated by the Government. However, this law has been criticized by many for being toothless and vague for several reasons, such as that:

• All the schemes, including their substantive provisions and means of enforcement are left to be included within each individual scheme, since this law does not provide for mechanisms for enforcement or punishments for its violation;
• It does not provide for any concrete means of raising money (in the form of funds or the like) for its enforcement;
• Although this law brings certain existing schemes for social welfare within its ambit (and thus extending them to the unorganized sector), many of these schemes provide benefits which are inadequate.

The benefits offered under this law are therefore considered insufficient to provide for the needs of domestic workers.

The Director General Labour Welfare, Ministry of Labour and Employment, Government of India issued a letter in 2010 to the Principal Secretaries of the State Governments to take steps to ensure that placement agencies that place domestic workers be registered under the Shops and Commercial Establishment laws of the respective states to be able to exercise more control and for gathering more information on the domestic workers in each state.

In June 2011, the Rashtriya Swasthya Biman Yojna was extended to domestic workers as well, providing for cashless health insurance cover of INR 30,000 for a family of five of the domestic worker.

Some states in India (such as Karnataka, Tamil Nadu and Bihar amongst others) have made amendments to the Minimum Wages Act, 1948 to include domestic workers within the Schedule of the Act providing for minimum wages.

Certain states have also announced the creation of welfare boards for the benefit of domestic workers in such states.

However, these provide only piecemeal benefits to this sector and a comprehensive law on the rights and protection of domestic workers has not yet been passed in India.

Proposed Policy and Legislative Changes to Protect the Interests of Domestic Workers

Several versions of Bills (laws which are being considered by the Parliament) formulated to address the rights and social security measures of domestic workers have been doing the rounds in the Houses for several years in India. However, none of these have yet seen the light of day in the form of an enactment which has been passed and brought into force.

The Government is now considering certain comprehensive policy decisions and partial legislative changes which would serve to provide regulatory and welfare mechanisms for the protection of domestic workers.

1. National Policy on Domestic Workers

Considering that domestic workers are a part of a vulnerable, unorganized sector with negligible legal protection, the Ministry of Labour and Employment, Government of India under the office of the Director General Labour Welfare, constituted a Task Force “… to deliberate on issues related to welfare and regulatory measures for promoting decent work for domestic workers…” in December 2009. One of the mandates of this Task Force was to formulate a policy framework for domestic workers in the context of (a) Regulatory Mechanism; and, (b) Welfare Measures.

The Task Force published its First Report in March 2010. This report contained several recommendations to the Government which were successfully implemented (some of these have been mentioned in the section above). Motivated by these changes, the Task Force then set itself to the charge of formulating a national policy for domestic workers. This policy was envisaged as a comprehensive document which would contain guidelines on the regulation and protection of domestic workers and welfare measures for them. This policy, it was hoped, would lead to the formation of “specific legislative mechanism” for domestic workers with the guidelines of the policy forming the basis of such a law.

Accordingly, the Task Force, in its Final Report dated 12^th September 2011, published the draft National Policy on Domestic Workers (hereinafter, “the Policy”) for the protection and promotion of the rights of domestic workers. The Policy was open for public comments until the 30^th of November 2011, and it is hoped that it will soon be adopted with necessary changes.

Provisions of the Policy

Given below are some of the main features and provisions of this Policy which would be of interest to an employer of a domestic worker. (A more detailed note on the main aspects of the Policy and an analysis of its provisions has been discussed in the Schedule to this article (see bottom of the article). The text of the entire Final Report of the Task Force and the draft Policy on Domestic Workers can be found at http://labour.nic.in/dglw/FinalReportTaskForceDomesticWorkers.pdf.)

• The Policy defines a “domestic worker”, an “employer” and a “placement agency” (which operate to place domestic workers in different households) and details certain rights and obligations of each of these.
• The Policy advocates changes to the legal framework governing the rights of a domestic worker through amendments to existing laws as well as the enactment of new laws to fill in lacunae which existing laws cannot cover. This would mean that if this recommendation is implemented, domestic workers would be brought within the ambit of various laws such as The Workmen’s Compensation Act, 1923, The Trade Unions Act, 1926, The Payment of Wages Act, 1936 and The Maternity Benefit Act, 1961 and the benefits of these laws would apply to domestic workers as well.
• The Policy recommends that domestic workers be given fair terms of employment (such as regulated working hours, periods of rest and leave) as well as social security benefits (including health insurance, old age benefits and death and disability benefits).
• The Policy proposes that placement agencies be registered, regulated and supervised by the Government.
• Access to courts and tribunals and setting-up of a grievance redressal mechanism to solve disputes between domestic workers and their employers and the encouragement of mediation and arbitration for these disputes has been suggested.
• The Policy also advocates the creation of a “Code of Practice” containing guidelines on the roles, rights and duties of an employer and creation of public awareness on this code.
• The Policy also addresses the needs of domestic workers being sent abroad and has recommended that they be given education on their rights in the country to which they are being sent, informed of embassies and help-lines which they may access in distress or emergencies and be given employment contracts in writing containing terms of their employment.

However, this Policy, once adopted, would need to translate into concrete changes through the adoption and implementation of its recommendations, including the enactment of necessary laws to protect the rights of domestic workers. The Central and State Governments have been charged with the implementation of this Policy by carrying out its recommendations and supervision of the same through the creation of an “Implementation Committee” as well as through other departments of the Government. The Policy also lays down timelines for the implementation of its provisions.

The Policy thus suggests changes through both through legislative and extra-legislative means, relying on both to carry out its proposals and thereby ensuring that the failure or delay of one of these mechanisms would not result in the failure of the implementation of the entire Policy.

2. The Prohibition of Sexual Harassment of Women at the Workplace Bill, 2010

Another legislative change which would benefit domestic women workers is the proposed enactment of The Prohibition of Sexual Harassment of Women at the Workplace Bill, 2010. This is a law in India which is intended to address the prevention of sexual harassment of women at the workplace. Although this law has not yet been brought into force, we will examine below the implications of this law for women engaged as domestic workers.

This law applies to an “employee” who is employed at a “workplace”, prohibiting and punishing acts of sexual harassment committed against such woman employee. The definition of a “workplace” under this law includes, inter alia, houses and dwelling places. Domestic workers would therefore be given protection under this law. Further, this law states that it shall also be applicable to the “unorganized sector” (which shall be deemed to be included under the definition of “workplace”) and the Schedule to this law enumerating the activities which would be covered under this term explicitly includes domestic work.

By extending its application to domestic work, this law, once in force, would therefore serve to protect women domestic workers against acts of sexual harassment.

Conclusion

From the above, one can see that the Government is now seriously recognizing the rights of domestic workers and taking positive steps to protect their interests. However, the Policy, while laudable for being a good step towards the protection of the rights of domestic workers, must not serve as an excuse for the Government to rest until a comprehensive law on these matters has also been passed. A strong legislative mandate through amendments, fresh exclusive laws for domestic workers and their inclusion in proposed laws (such as the one mentioned above) will go a long way in giving them long-overdue basic rights and balancing the needs of an employer with those of their workers.

Schedule – Main Points of the draft Policy on Domestic Workers and a Brief Analysis of its Provisions

Detailed Provisions of the Policy

A. Preamble

• The Policy begins by according importance to the achievement of “decent work” standards for domestic labour and acknowledging the various contributions of, risks in and vulnerabilities of being engaged domestic labour;
• The Policy also acknowledges that domestic labour has thus far been excluded from many legislations which are applicable to other categories of workers and seeks to now adopt an inclusive approach to it;
• The Policy then recognizes that domestic workers, like other workers also have the right to several Constitutional rights such as minimum wage protection, regulated hours of work and rest, leave, social security, protection from sexual harassment and the right to work with dignity and respect;
• Suitable amendments to various existing labour laws (such as The Workmen’s Compensation Act, 1923, The Trade Unions Act, 1926, The Payment of Wages Act, 1936 and The Maternity Benefit Act, 1961) are also recommended to extend their application to domestic workers;
• The Policy then recommends, as above, to accord to domestic workers rights which are available to other workers by extending existing legislations to them through amendments and including them in future laws and proposed legislations.

B. Aims and Objectives

• The Policy describes it aims as (a) to place an obligation the Central and State Governments “… to take effective and appropriate measures to ensure that domestic workers are able to exercise their labour rights as guaranteed under the Indian Constitution…”; (b) to promote the rights of domestic workers by bringing them within the ambit of existing laws and schemes applicable to other workers; and (c) to lay down a framework which would be included through amendments to existing laws and creation of new laws in cases where amendments would be insufficient in light of the special circumstances arising from the nature of work carried on by domestic workers;
• The Policy seeks to give a direction for Central and State Governments to work towards formally and legally recognizing the rights of domestic workers, which could be achieved inter alia by:
  • Making existing legislations and schemes which are applicable to other categories of workers, applicable to domestic workers as well;
  • Introducing a new law for domestic workers where amendments to existing laws would be insufficient to cater to their needs;
  • Setting up an institution which would provide inter alia for social security, fair terms of employment and grievance and dispute redressal mechanisms;
  • Facilitating registration of workers with the Labour Department;
  • Encouraging the formation of organizations and unions to bargain for rights;
  • Setting up mechanisms to domestic workers who seek work abroad;
  • Setting up mechanisms to regulate placement agencies;
  • Detailing the roles of the employee, employer, the Government and other organizations through a Code of Practice;
  • Creating awareness.
• The Policy explicitly denounces any narrow interpretation of its provisions and states that it must be given broad and liberal construction.

C. Scope and Definition

• The Policy defines a “domestic worker” as “… a person who is employed for remuneration, whether in cash or kind, in any household through any agency or directly, either on a temporary or permanent, part-time or full-time basis to do the household work, but does not include any member of the family of an employer.”;
• The Policy then categorizes domestic workers as part-time, full-time or live-in, based on the amount of time that they spend working in a day and their place of stay;
• An “employer” is defined as “… a person or a household who employs or benefits from the employment of domestic worker/s, irrespective of the number of domestic worker/s employed, or the nature of employment or the time period for which such employment exists or the nature of activity/ies performed by the domestic worker/s.”
• The Policy also defines a “placement agency” which may be any organization, institution, individual or the like which provides “… placement, sourcing and recruitment services relating to domestic workers.”

D. Substantive Provisions

• Legislative Inclusion and Designing Specific Legislative Mechanism – One of the primary ways in which the policy seeks to address the needs of domestic workers is through legislation. In this regard, the Policy advocates amendments to existing legislation. The Central and State Governments have been charged with the duties of identifying difficulties in carrying out such amendments and giving reasons if such amendments are not possible. In such cases, the Governments would need to legislate or carry out other measures specifically aimed at domestic workers to accord to them the same rights as other workers.
• Right to Register as Workers – The domestic workers would need to be able to register with the State Labour Departments to accord to them the status of a “worker”, thereby giving them access to various rights and benefits and legal remedies in case of disputes with their employers.
• Right to Organize – The right of domestic workers to form organizations and trade unions has been recognized and Governments are required to remove legislative and other administrative hindrances which may prevent domestic workers from exercising this right.
• Right to Fair Terms of Employment, Social Protection and Labour Welfare – The right of domestic workers to fair terms of employment (such as minimum wages, regulated working hours and intervals for rest; leave; and decent working conditions) as well their right to access and secure various social security benefits (such as health insurance, old age benefits and death and disability benefits) has also been identified.
• Protection of Domestic Workers Who Seek Work Abroad – The Policy recognizes that domestic workers who seek work abroad must also be protected from abuse and exploitation. To this end, the Policy recommends that workers be educated on their rights in the destination country, receive their employment contract detailing their terms of service in writing and be informed of helplines and embassies which they can approach in case of any distress.
• Right to Skill Development – The Policy states the right of domestic workers to increase their skill sets and quality of skills involved in performing their work, and directs the Government to assist in the improvement and development of such skills through schemes and literacy, where required. In this regard, the Policy recommends that the Government include domestic work as one of the occupations in the State level implementation of the National Skills Development Initiative (SDI). Under the SDI, a national competency standard for domestic work has been established to certify domestic worker’s skills under the Modular Employable Skills scheme. The Government has also developed the curriculum, teaching and learning materials which can be readily used at the State levels. Pre- and post-training evaluation has also been recommended to gauge the improvement of the skills imparted.
• Regulation of Placement Agencies – Until a separate mechanism is formed, the Policy recommends that placement agencies be registered under the Shops and Commercial Establishment laws of each state. Such agencies would also be required to send reports every six months to the State Labour Departments of matters such as the employees placed, details of the employer, nature of work, hours and wages.
• Grievance Redressal – The Policy recommends that domestic workers have access to courts and tribunals with the same ease as that of other workers and be given the ability to pursue legal remedies both during and after employment. The Policy requires the Ministry of Labour and Employment to set up a grievance redressal mechanism to address disputes and complaints and to protect the rights of the workers. Facilitation of mediation and/or arbitration to settle disputes is also recommended, but which shall not exclude the other legal remedies available to a worker.
• Awareness Creation on Employers Obligations – The Policy also emphasizes the creation of a Code of Practice containing rules on the roles of every party while employing a domestic worker and spreading awareness in the public on the contents of this Code. Training for officials of the Labour Department in the Policy and provision by the Labour Departments of information on good practices in domestic employment have also been suggested.

E. Implementation of the Policy

(i) Implementation Committee

The Policy envisages the constitution of an Implementation Committee by the Ministry of Labour and Employment and relies heavily on it for the implementation of the Policy.

The Implementation Committee is to consist of representatives of the Ministry of Labour and Employment, Ministry of Women and Child, workers’ and employers’ organizations, representative organizations of domestic workers and employers of domestic workers and other stakeholders as deemed appropriate.

This Committee is charged with the following responsibilities:

• Monitoring the implementation of the Policy;
• Defining the functioning of a tripartite mechanism at the State level to address the grievances and protect the rights of domestic workers;
• Evolving a mechanism for seeking a report from the State tripartite mechanism;
• Functioning as in information resource;
• Collecting and analyzing information and evaluating the implementation of the Policy. It is also charged with taking strategic decisions to improve the implementation of the Policy.

(ii) Ministry of Labour and Employment

The Ministry of Labour and Employment is required to facilitate regular analyses and assessments and collection of accurate statistics in all connected matters.

(iii) State Level Tripartite Institutional Mechanism

The Policy also recommends the establishment of a State level tripartite institutional mechanism to implement the substantive parts of the Policy and providing access to grievance redressal through a helpline.

(iv) Dispute Redressal Mechanism

The State Governments have also been charged with the formation of dispute redressal mechanisms with single window access to domestic workers to protect their rights.

(v) Awareness, Organization and Engagement with RWAs

The Central and State Governments are required to encourage workers’ and other organizations to spread awareness about the Policy to domestic workers and employers, to encourage them to organize domestic workers and their employers for easier dialogue and to engage with Residents Welfare Associations.

F. Timeline for Implementation

• The Policy mandates that the Ministry of Labour and Employment establish the Implementation Committee within three months of the adoption of the Policy.
• The Implementation Committee is then required to produce a plan for the implementation of the Policy within three months of its establishment.
• The State level tripartite institutional mechanism shall be established within ten months from the date of the establishment of the Implementation Committee.
• Annual reports produced by the State level mechanisms are required to be compiled by the Implementation Committee, based on which recommendations shall be made to the Ministry of Labour and Employment on the progress and requirements of evolving the Policy.

G. Budgetary and Financial Provisions

The Policy directs that all stakeholders directly involved in the implementation of the Policy shall make provisions in the financial flows for protecting the rights of the domestic workers according to the Policy. Other funds for workers generally (such as the Unorganized Sector Workers’ Fund) may also be used to implement the Policy.

A Brief Analysis of the Policy

The National Policy on Domestic Workers is certainly a commendable step taken by the Government of India in protecting and promoting the rights of domestic workers. The Policy has several positive aspects as well as certain shortcomings. Discussed below are what the author considers some of the major pros and cons of this draft Policy.

A. Positive Aspects of the Policy

• Despite several versions of laws for the protection of domestic workers being circulated in the Houses of Parliament over the last several years, none of these have been passed and as such, no comprehensive policy or law for the recognition and protection of the rights of domestic workers is in force in India as of today. The Policy, once adopted, will form the first comprehensive policy document which recognizes, addresses and enforces a wide range of rights and issues of domestic workers exclusively.
• The Policy envisages that changes be carried out primarily through legislative means (through both amendments and fresh laws) and enforcement institutions detailed in the Policy. This will therefore ensure that domestic workers are given rights which are, as far as practicable, on par as those of other workers and further, rights which may be required due to the particular nature of work to be performed by them.
• The Policy explicitly recognizes and emphasizes the right of domestic workers to form unions and join organizations. This will allow the creation of awareness among workers of their rights and will give them a better position to bargain collectively for their rights.
• The Policy also requires the registration of placement agencies. Many of these agencies are run without any supervision or requirement to adhere to rules. They are thus mismanaged and often exploit employees. Registration of these agencies with the State Labour Departments will ensure that they are regulated and supervised by the Government.
• The Policy also places great emphasis on public awareness. Through the creation of a Code of Practice and imparting information on best practices followed in the industry, domestic workers can gain dignity, and their employers, stakeholders and the general public will be sensitized on their roles vis-à-vis the domestic workers.
• The definition of a “domestic worker” is a broad one and includes workers performing household work, irrespective of the manner of remuneration and the time period for which they work.
• The Policy also attempts to help domestic workers going abroad by making specific provisions for the protection of their rights and interests.
• The definition of an “employer” is also broad, and covers even “… a household who employs or benefits from the employment of domestic worker/s…”. Thus, even a household which does not directly give remuneration to the domestic worker may be brought under the Policy.
• The Policy also provides for skill development of domestic workers. This will allow workers to improve their abilities and also benefits employers through standardization and honing of these skills.
• The Policy, in its implementation, requires the participation of several bodies and agencies, both governmental and otherwise as well as the public. By adopting a multiple-path approach, the Policy not only involves a wide range of people and organizations but divides the responsibilities of the implementation on several shoulders.
• The Policy also lays down clear timelines for various stages of its implementation, thus ensuring that its goals are time-bound and concrete.
• As mentioned above, the Policy adopts both legislative and extra-legislative mechanisms to address the needs of domestic workers. This would ensure that both methods are used to protect their rights, and the delay or inability of the implementation of one would not cause a failure of the implementation of the Policy on the whole.

B. Shortcomings of the Policy

• Possibly the biggest drawback of the Policy is that despite its comprehensive content, it does not have the same force as that of a law. As seen above, although the main thrust of the Policy is that legislative changes be made for domestic workers and even though a hope is expressed that it shall form the basis of future specific legislation, no timelines have been recommended for carrying out changes to existing legislations and schemes, analyzing lacunae and enacting a new, detailed law for domestic workers.
• The Policy does not define a “household” or “household work”, presumably to keep the definition of these terms broad enough to accommodate several kinds of workplaces and different kinds of work. However, this could give rise to several questions and difficulties later. The Policy may have done well to enumerate certain kinds of work which could fall within the purview of the definition of “household work” or laid down guidelines to determine whether or not a place is a “household” and whether or not certain kinds of work are “household work”.
• The Policy relies heavily on stakeholders involved in the Policy’s implementation to redirect finances for its implementation instead of the institution of a separate fund for the purposes of this Policy. This may place further pressure on the already-strained coffers of the Government and therefore hamper the working of the Policy.
• Another major drawback of the Policy is that it does not contain any provisions for punishing violations or non-adherence of the terms of the Policy. Penalties would serve to encourage the serious execution of its provisions, and may therefore need to be added to the Policy.
• The Policy is vague on the Implementation Committee or the State level tripartite mechanism and does not define the constitution and working rules of either.

Disclaimer: As already stated above, this article is aimed at bringing to the notice of the readers the law on domestic workers in India. The above information / suggestions / guidelines / tips are generic in nature and should not be acted upon unless a professionally qualified legal consultant has examined the requirements of the relationship and has advised that some of the above terms may be made applicable to each case.

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Of Lease and Leave and License of Immovable Property under Indian Law

It is very common to hear the word “Lease” or “Leave and License” being used by someone known to us in our daily lives. Whilst most of us know the essential meaning of these terms, most people may not be aware of the actual rights transferred under such arrangements.

We have attempted, in this article, to bring to the notice of the readers the legal meaning of these terminologies, the rights and liabilities of a lessor and a lessee and the concept of lease vis-à-vis that of a leave and license under Indian law.

Lease of Immovable Property

Leases are governed by the provisions of the Transfer of Property Act, 1882. As per Section 105 of this law, the lease of an immovable property is a transfer of a right to enjoy the property for a certain period of time or in perpetuity and for a certain price (in cash or in kind) paid or agreed to be paid over a period of time by the lessee to the lessor on such terms agreed between the parties.

This legal arrangement therefore confers rights and imposes duties on both the lessor and the lessee of the property. We will now explore some of these rights and liabilities of each person.

Rights and Liabilities of the Lessor

As per Section 108 (A) of the Transfer of Property Act, 1882, the rights and liabilities of a lessor include:

• Disclosing to the lessee material defects, if any, in the leased property;

• Putting the lessee in possession of the leased property on his request;

• Allowing the lessee to peacefully hold and enjoy the leased property on his paying the rents reserved to him on time and performing the contract binding on him.

Rights and Liabilities of the Lessee

As per Section 108 (A) of the Transfer of Property Act, 1882, the rights and liabilities of the lessee include the following:

- Any accession made to the leased property shall be comprised in the lease;

- The right to determine the lease if the leased property is destroyed substantially and becomes unfit for the purpose it was leased for due to any “Act of God”, provided the injury occurred is not due to the wrongful acts of the lessee;

- The right to carry out any repairs to the leased property and thereafter recover the amount spend for such repairs from the monthly rent payable by him, if the lessor neglects to carry out such repairs on time as requested by the lessee;

- If the lessor neglects to make any payment which he is bound to make within a reasonable time, the lessee has the the right to make such payments and recover the same with interest from rent payable to the lessor;

• The right to remove all articles from the leased property even after determination of the lease and during the lessee’s possession in the leased property, provided the lessee leaves the property in the state which he has received it;

- The lessee is entitled to all the crops planted or sown by the lessee upon the leased property and he may carry them after termination of the lease and while he is in the possession of the leased property;

- The right to sub-lease/sub-let, or transfer absolutely or by way of mortgage, the leased property to any other third party subject to their being no restriction of any kind to it in the contract. Even after such sub-lease/sub-let the lessee will still be liable to all its liabilities under the lease deed;

- The lessee is bound to disclose to the lessor all or any facts pertaining to the leased property of which the lessor is not aware and which materially increases the value of such interest;

• The lessee is bound to pay the rents on time;

• The lessee is also bound to keep the leased property in good condition and, after termination of the lease, to restore the property as it was at the time when he was put in possession, subject to reasonable wear and tear;

• The lessee is bound to allow the lessor and his agents to enter the leased property at all reasonable times and inspect the premises thereof and give notice of any defects caused by the lessee or his agents to the leased property. The lessee is bound to make good such defects within three months of such notice;

- The lessee is bound to keep the lessor informed of any proceedings made to recover the leased property or any pat thereof or any encroachment made upon or any interference by the third party to the leased property;

- The lessee is bound to use the leased property only for the purpose it is leased for and to not carry out any illegal or any non-permissible business on such property;

- The lessee is bound to put the lessor in possession of the property on determination of the lease.

A reading of the above shows that in a lease arrangement, the lessee is given the right to enjoy the property without any disturbance or hindrance from the lessor during the agreed term. In addition to those listed above, the lessee and lessor are also entitled to certain other rights.

While a lease grants a certain interest and rights in leased property in favour of the lessee, another manner in which a right may be given in an immovable property is through a “leave and license” arrangement, also called a “license”. A license is a mere “right to use” which is transferred to the licensee herein. We have, below, briefly introduced the concept of a “license” as defined under law and endeavoured to bring to the notice of the readers the basic differences between a “lease” and a “leave and license” under Indian law.

License of Immovable Property

As per Section 52 of The Easements Act, 1882, the license of an immovable property is a mere grant of right by the licensor to the licensee to enjoy the licensed property, and which in absence of such right, would be unlawful, and such right does not amount to an easement or an interest in the licensed property. Another important aspect of a license is that anyone who has any interest in the property can license the property - it need not necessarily be the owner of the property in question.

Right and Liabilities of a Licensor

As per Section 52 of The Easements Act, 1882, the rights and liabilities of the licensor includes:

• Disclosing to the licensee any defect in the property licensed which may affect the licensee and which the licensee is not aware of;

• Not to do anything likely to render the licensed property in a state which may affect the licensee. If the licensor transfers such affected property the licensee is not bound by such license.

Rights and Liabilities of a Licensee

As per Section 52 of The Easements Act 1882, the rights and liabilities of the licensee includes:

• Being bound to leave the licensed property within a reasonable time and to remove all his goods placed on the licensed property on determination or earlier termination of the license;

• Being entitled to the refund of the consideration paid by him on the termination or determination of the license.

While some of the rights and liabilities of a lessor and lessee are similar to the corresponding rights and liabilities of a licensor and licensee, some of the important differences between a lease and a license are as follows:

Lease of Immovable Property	License of Immovable Property
The lessee is given the exclusive possession of the leased property	The licensee is given a mere right to use and occupy the licensed property for a period of time
It is a transferable right i.e., if the lessor sells the leased property to any third party during the continuance of the lease the purchaser is bound by the existing lease deed	It is only a personal right i.e., if the licensor sells the licensed property to any third party the leave and license agreement (if any) automatically gets terminated
If the lessor has to enter the leased premises for any inspection or repairs, he can only after giving a prior notice and obtaining the prior approval from the lessee	The licensor is free to enter his licensed premises at any point of time
Lessee under certain circumstances may be considered as a tenant and has all the rights as per the applicable tenancy laws	Licensee is not considered as a tenant and is not covered under any tenancy laws
Normally the stamp duty applicable to a lease is high	Stamp duty may be lesser than the Lease, however in certain states (for example in Maharashtra) a license exceeding a certain period is considered as a lease and the same stamp duty as a lease is applicable to it.

It is therefore in the best interest of the owner of a property in question and the person taking such property on lease or leave and license to firstly understand whether they would like to lease or license a property and thereafter enter into a detailed lease or leave and license agreement, as the case may be, to ensure that their rights and liabilities are protected as per the provisions of law.

Disclaimer: This article is to bring to make a reader understand the meaning of a lease and leave and license and the rights and liabilities that is given under law. The above information / suggestions / guidelines / tips are generic in nature and should not be acted upon unless a professionally qualified legal consultant has examined the requirements of the transaction and has advised that some of the above terms may be made applicable to a proposed transaction.

The information provided is "as is," and "as available," and the information provided may include inaccuracies or typographical errors.

An Introduction to the Law on Sexual Harassment at the Workplace in India

With thousands of intelligent and qualified women in India entering the workforce in nearly every field and industry, both in the public and private sectors, every year, one of the questions that takes precedence above all others is that of gender discrimination and sexual harassment at the workplace.

India’s progress in this regard has been a slow one - despite having signed the first of several international treaties addressing the rights of women several decades ago, including the Convention on the Elimination of All Forms of Discrimination Against Women in 1980, a comprehensive law on the issue of sexual harassment of women at the workplace has yet to come into force in the country.

This article attempts to briefly trace the history of sexual harassment law in India, examining the roles of both the judiciary and legislature in the producing the existing sexual harassment law in India.

Judicial Activism in Matters of Sexual Harassment in India

In the absence of affirmative action on the part of the Parliament in specifically legislating on sexual harassment at the workplace, it was finally the Indian judiciary which had to fill in the lacunae. Of primary importance is the judgment of the Hon’ble Supreme Court of India in Vishaka & Ors. v. State of Rajasthan & Ors. [AIR 1997 SC 3011]. Delivering this judgment in 1997 on a writ petition brought by social workers and NGOs further to the brutal gang rape of a social worker in a village in Rajasthan, the Hon’ble Court noted that the matter had been brought before it specifically to deliver ‘gender justice’ and address the need for rules to tackle sexual harassment at the workplace in the absence of a law to deal with this issue.

In this judgment, analyzing provisions of international conventions as well as the Constitution of India, the Hon’ble Court laid down certain basic guidelines formulated to deal with the issue of sexual harassment designed to form a part of the law of the land until the Parliament passed a comprehensive law
to deal with this issue which are reproduced below.
(taken from http://www.iiap.res.in/files/VisakaVsRajasthan_1997.pdf):

1. Duty of the Employer or other responsible persons in work places and other institutions:

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 procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition:

For this purpose,sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as :

a) Physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical, verbal or non - verbal conduct of sexual nature.

where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might by visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Step:

All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings:

Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action:

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism:

Whether or not such conduct constitutions an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be heated by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.

The employers and person in charge will also on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:

Employees should be allowed to raise issues sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer - Employee Meetings.

9. Awareness:

Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject ) in a suitable manner.

10. Third Party Harassment:

Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

As seen above, these guidelines touched upon some major aspects of the matter of sexual harassment, some of which are enumerated below:

·         The definition of sexual harassment is a broad and inclusive one, bringing into its purview both the public and the private sector;

·         The employer has the obligation, amongst others, to publish a clearly-formulated policy on sexual harassment;

·         Disciplinary action and, if required, criminal proceedings must be instituted by the employer against the person against whom a complaint of sexual harassment has been made;

·         The employer is also mandated to address and assist in the prosecution of cases of sexual harassment by third parties against its employees and, if necessary, constitute complaints committees to address such complaints.

The Need for a Comprehensive Law on Sexual Harassment at the Workplace

The Hon’ble Court limited itself to briefly stating these guidelines as the first step in formulating legal rules to tackle sexual harassment. They were therefore brief, succinct and basic, the intention of the Hon’ble Court clearly being to provide a foundation upon which it hoped the Parliament would build a detailed and thorough law to address this issue, a temporary refuge until a permanent shelter was constructed by the law-makers.

After the passing of this judgment, these guidelines formed the law on sexual harassment at the workplace in India. Many employers formulated policies on sexual harassment and addressed complaints according to mechanisms based on these principles.

Despite this, many companies and places of work failed to implement these guidelines effectively since the guidelines lacked strong provisions for their enforcement. Thus, the need for a comprehensive and elaborate law on sexual harassment in order to efficiently combat cases of sexual harassment was greatly felt. Accordingly the government was forced to formulate a law to this effect, which we have mentioned in the section below.

The Prohibition of Sexual Harassment of Women at the Workplace Bill, 2010 – Building on the Foundation Laid Down in Vishaka

The Indian Parliament has now formulated the Prohibition of Sexual Harassment of Women at the Workplace Bill, 2010 (hereinafter ‘the Bill’). This Bill has been approved by both the Houses of Parliament but, as on the date of this article, is yet to receive the assent of the President and be notified.

The Bill has essentially been commended for being a broad in its scope. A reading of the Bill shows that the Legislature has essentially retained the principles and ideas of the guidelines laid down by the Hon’ble Supreme Court in India and has elaborated on the mechanism for enforcement and implementation of the law. Some of the salient features of this Bill, are:

·         The definitions of the terms “employer”, “workplace” and “employee” are very wide and inclusive, thus allowing for this law to throw its net wide and bring within its purview several kinds of places of employment (including domestic dwellings and places travelled to in the course of employment) and kinds of employees (such as trainees and volunteers) both in the public and private sectors. For instance, a “workplace” has been defined to include the following:

“(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a cooperative society;

(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, nongovernmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial or financial activities including production, supply, sale, distribution or service;

(iii) a house or dwelling place;

(iv) any place, vehicle either by air, land, rail or sea visited by the employee arising out of, or during and in the course of, employment;”

The unorganized sector is also brought within the definition of the workplace and the Legislature has also taken pains to list several occupations which would fall within the definition of “unorganized sector”;

·         The Bill provides for two kinds of committees to address complaints of sexual harassment at the workplace – the employer-constituted Internal Complaints Committee and the District Officer-constituted Local Committee. Complaints may be made to the Local Committee in cases where the Internal Complaints Committee has not been constituted by the employer or in cases where the person complained against is the employer himself. The constitution of the Committees has also been addressed, ensuring that they are headed by women and that not less than half of the members are women. The National and State Commissions for Women have also been empowered to receive complaints;

·         The Bill provides for a time-bound mechanism for the carrying out of enquiries by the Complaints or Local Committee into complaints received by them. In this regard, they have been empowered to provide interim relief to the complainant, such as granting leave to or transferring the services of the complainant;

·         Various kinds of disciplinary and legal action which may be taken against a person found guilty of sexual harassment have been enumerated;

·         The Bill also contains penal provisions in case of any contravention of the orders of the District Officer with respect to orders of action against the person complained against and the payment of compensation to the aggrieved woman;

·         Duties of an employer and a District Officer vis-à-vis sexual harassment have additionally been listed.

Thus, it is evident that the Parliament built on the principles of the guidelines laid down is Vishaka and laid down the scope of the law, mechanism for redressal of complaints and an effective means of enforcement of its provisions with penal consequences.

The Bill consolidates, elaborates and improves on the Vishaka guidelines in several ways as stated below:

·         The Bill provides for a Local Committee in addition to the employer-created Internal Complaints Committee. It also speaks about  appointing a District Officer to constitute such Local Committee to register complaints. The Bill ensures that the aggrieved woman has the option of approaching an impartial forum with her complaint, ensuring that acts of further victimization are reduced and impartial justice is delivered;

·         The Bill lays down a time limit for carrying out enquiries into complaints of sexual harassment, to ensure a speedy redressal;

·         The Bill provides for the involvement of the National and State Commissions for Women in several ways, including receiving complaints and over-seeing the implementation of this law;

·         The Bill states a number of remedies which the District Officer may order (where no disciplinary or service rules exist at the place of employment) in case the person complained against is found guilty. In addition to suspension or termination of employment, the Bill also provides for (i) payment of compensation to the victim; (ii) revocation or suspension of licenses of the guilty; (iii) the cessation of benefits under a Central or State-sponsored scheme. The Bill therefore provides for additional deterrent and punitive punishments for the commission of acts of sexual harassment;

·         The Bill provides for confidentiality of information on proceedings and the identity of the complainant, to the extent that the Bill specifically excludes  any information on the complainant, the relief sought etc. being provided even if requested under the Right to Information Act;

·         In order to avoid being abused, this Bill also provides for action to be taken against a complainant in case of false complaints;

·         In terms of criminal action, in addition to assisting the complainant in filing a criminal complaint, the employer has also the duty to himself initiate criminal proceedings against the person complained against after the conclusion of the enquiry in cases where it his employee or without waiting for the conclusion of the enquiry, where it is a third-party.

The Bill contains several provisions which would facilitate the prevention and prosecution of acts of sexual harassment at the workplace and its notification would thus afford relief to thousands of women across the country.

However, this law does not deal with cases of sexual harassment of men at the workplace. This is a great lacuna in this law and leaves no remedy for men being harassed. It is therefore advisable for companies and employer to formulate similar policies to deal with cases of sexual harassment of men as well.

Disclaimer: As already stated above this article is aimed at bringing to the notice of the readers the law on sexual harassment in India. The above information / suggestions / guidelines / tips are generic in nature and should not be acted upon unless a professionally qualified legal consultant has examined the requirements of the relationship and has advised that some of the above terms may be made applicable to each case.

The information provided is "as is," and "as available," and meant for information only.

Authors - VRC Legal