IntroductionIn the mid 1950s, W.Arthur Lewis developed a theoretical model of economic development based on the assumption that there was an unlimited supply of labour in most developing countries and that this vast pool of surplus labour would be absorbed as the modern industrial sector in these countries grew. It was therefore assumed that the traditional sector comprised of petty traders, small producers and a range of casual jobs would eventually be absorbed into the formal economy and disappear. This argument became less convincing since the 1970s when case studies on informal sector in various parts of the world began to reveal the highly active existence of men, women and children crowding at the bottom of the urban economy in Third World countries. So many studies have revealed the vast number of workers, in the Third World, striving hard to survive on the fruits of their labours outside the formal sector of the economy. The formal –informal dichotomy can be regarded as a new variation on the dualism theories of the past. In the colonial era a contrast was constructed between an invasive western capitalist sector and an opposing eastern non-capitalist people’s economy. In post-colonial development theory the concept of dualism was applied to the dichotomy of traditional and modern. According to this view, the rural agricultural order was still predominantly pre-capitalist while the urban-based industrial economy was described as capitalist. In the most recent phase of the dualism doctrine capitalism is the label of only the advanced segment of the urban milieu: the formal sector. The modes of production in the lower economic terrain, rather questionably labeled as non-capitalist, are characterized as the informal sector.

In operationalizing these variations on dualism, the contrasts are more significant than the specific characteristics of each segment. For instance, it’s entirely normal to describe the informal sector by summing up the absence of elements found in the formal sector. In the absence of a more analytical definition, the landscape of the informal sector becomes synonymous with the kaleidoscope of unregulated, poorly skilled and low-paid workers. Highlighting this chaotic assortment Keith Hart coined the term ‘informal economy’ in 1971.

There are different terminologies used so interchangeably to signify the unorganized sector like informal sector, informal economy, and even informal labour which often highlights the most affected part of the sector, namely, the labour. “ Informal labour is a labour whose use is not governed either by state regulations or by collective agreements between workers and employers.”

Informal labour has, in different instances, been viewed as labour engaged in urban small scale enterprises, as self employment, as labour engaged in “traditional activities”, as wholly unskilled labour, and as labour whose use is not subject to any rules or norms. But none of this has any sound conceptual or empirical foundation. Informality does not imply a particular mode or location of labour use; informal labour can be in self-employment, in

casual wage employment, and in regular wage employment, just as it can be in urban as well as in rural areas. There is little reason to think that informal labour must be confined to ‘traditional’ and ‘modern’ activities.

We do not need to assume that informal labour is unskilled; only need to recognize that its skills are acquired outside the formal education system. And all the more in the context of the neo-liberal economic policies of hire and fire where the organized sector itself is getting informalised through contractualisation, casualisation, and outsourcing of labour, there are workers who are equally or even more educated and skilled, work better and even longer in so many of the organized sectors; but for no labour rights, wage, job or social security protection and for very dismal wages. The casual and contract labourers are under the working and living conditions that prevailed in the nineteenth century Europe.

Since the introduction of the informal sector concept, opinion has been divided as to its socio-economic impact. There are authors who positively point out the accelerated shift in livelihood patterns away from agriculture and villages to cities and towns in the Third World since the mid-twentieth century. But even if the masses of migrants flooding into urban areas were fortunate enough to establish a foothold, the vast majority of them could gain no access to the formal sector. It was still too small to cope with the continuous influx of newcomers.

The more critical analysis of researchers, who have observed that the formal sector remained inaccessible for reasons other than the inferior quality of the new urbanites’ labour, and their other defects, rejects such an optimistic view. The failure of the newcomers’ efforts to find stable, decently paid and dignified work is in this alternative perception due mainly to a development strategy that, in the face of excess supply, seeks to keep the price of labour as low as possible, allows no room for collective action to reduce these people’s vulnerability and refuses to provide this footloose workforce with public representation. In short, the lack of registration, organization and protection does not have its origin in the free play of social forces, but it’s the deliberate product of economic interests that benefit from the state of informality in which a wide range of activities in all branches of the economy are kept, systematically and on a large scale, through evasion of labour laws and taxation.

Indeed, the informal sector is not a separate and closed circuit of work and labour. There is the interaction, between the formal and informal sectors, and dependence of the latter on the former and even its subordination to it. Now with the neo-liberal economic policies there is the widespread informalization of the formal sector through down sizing, casualisation and contractualisation. In short the capitalist leaches become richer and richer by squeezing the life blood of the working force.

The Indian ScenarioThe Indian Economy is characterized by the existence of a vast majority of informal or unorganized labour employment. As per the Economic Survey 2007-08, 93% of India’s workforce include the self employed and employed in unorganized sector. The Ministry of Labour, Government of India, has categorized the unorganized labour force under four groups in terms of Occupation, nature of employment, specially distressed categories and service categories.

1. In terms of Occupation:Small and marginal farmers, landless agricultural labourers, share croppers, fishermen, those engaged in animal husbandry, beedi rolling, labeling and packing, building and construction workers, leather workers, weavers, artisans, salt workers, workers in brick kilns and stone quarries, workers in saw mills, oil mills etc. come under this category.

2. In terms of Nature of Employment:Attached agricultural labourers, bonded labourers, migrant workers, contract and casual labourers come under this.

3. In terms of Specially distressed categories:Toddy tappers, Scavengers, Carriers of head loads, Drivers of animal driven vehicles, Loaders and unloaders come under this category.

4. In terms of Service categories:Midwives, Domestic workers, Fishermen and women, Barbers, Vegetable and fruit vendors, News paper vendors etc. belong to this category.

In addition to these four categories, there exists a large section of unorganized labour force such as cobblers, Hamals, Handicraft artisans, Handloom weavers, Lady tailors, Physically handicapped self employed persons, Rikshaw pullers, Auto drivers, Sericulture workers, Carpenters, Tannery workers, Power loom workers and Urban poor.

The major characteristics of the unorganized workers:

The unorganized labour is overwhelming in terms of its number range and therefore they are omnipresent throughout India.

As the unorganized sector suffers from cycles of excessive seasonality of employment, majority of the unorganized workers does not have stable durable avenues of employment. Even those who appear to be visibly employed are not gainfully and substantially employed, indicating the existence of disguised unemployment.

The workplace is scattered and fragmented.

There is no formal employer – employee relationship

In rural areas, the unorganized labour force is highly stratified on caste and community considerations. In urban areas while such considerations are much less, it cannot be said that it is altogether absent as the bulk of the unorganized workers in urban areas are basically migrant workers from rural areas.

Workers in the unorganized sector are usually subject to indebtedness and bondage as their meager income cannot meet with their livelihood needs.

The unorganized workers are subject to exploitation significantly by the rest of the society. They receive poor working conditions especially wages much below that in the formal sector, even for closely comparable jobs, ie, where labour productivity are no different. The work status is of inferior quality of work and inferior terms of employment, both remuneration and employment.

Primitive production technologies and feudal production relations are rampant in the unorganized sector, and they do not permit or encourage the workmen to imbibe and assimilate higher technologies and better production relations. Large scale ignorance and illiteracy and limited exposure to the outside world are also responsible for such poor absorption.

The unorganized workers do not receive sufficient attention from the trade unions.

Inadequate and ineffective labour laws and standards relating to the unorganized sector.

Social security measuresIt is rightly true that when independent India’s constitution was drafted, social security was specially included in List III to Schedule VII of the constitution and it was made as the concurrent responsibility of the central and state governments. A number of directive principles of state policy relating to aspects of social security were incorporated in the Indian constitution. The initiatives in the form of Acts such as the Workmen’s Compensation Act (1923), the Industrial Disputes Act (1947), the Employees State Insurance Act (1948), the Minimum Wages Act (1948), the Coal Mines Provident Funds and Miscellaneous Provisions Act (1948), The Employees Provident Fund and Miscellaneous Provisions Act (1952), the

Maternity Benefit Act (1961), the Seamen’s Provident Fund Act (1966), the Contract Labour Act (1970),the Payment of Gratuity Act (1972), the Building and Construction Workers Act (1996) etc. reveal the attention given to the organized workers to attain different kinds of social security and welfare benefits. Though it has been argued that the above Acts are directly and indirectly applicable to the workers in the unorganized sector also, their contribution is very negligible to the unorganized workers.

Inspite of the fact that not much has been done in providing social security cover to the rural poor and the unorganized labour force, the country has made some beginning in that direction. Both the central and state governments have formulated certain specific schemes to support unorganized workers which fails in meeting with the real needs and requirements of the unorganized sector labour force.

This becomes clear even when the highly proclaimed National Rural Employment Guarantee Act -2005 (NREGA), though it is a breakthrough, doesn’t have common wage in different states and limits itself only to hundred day’s work for those registered worker under the Act. What about the rest of the days in an year? As per this Act, the work guarantee applies in rural areas only, what about the urban poor?

And looking at the recent Unorganized Sectors’ Social Security Act (2008) , one really wonders if there is any provision for an unorganized worker in this Act other than some guidelines about the available social security schemes in the country. How can it be called an Act unless it has the legal binding and provisions of rights to work and entitlements under it? Here as per the Act nothing is mentioned about what constitutes appropriate and adequate social security for the vast mass of unorganized workers and their dependents, what eligibility criteria, if any, ought to be prescribed, what will be the scale of benefits that the workers and their families are entitled to receive and under what conditions, what will be the funding arrangements that must be put in positions to meet the cost of social security and so on. Aren’t the unorganized workers of this country entitled to receive, in this 60th year of our Republic, minimum standards of social security and labour rights, on the scale and spread adumbrated in the relevant ILO convention drawn up more than 50 years ago? Therefore, this law which does not deal with the issue of unemployment, its regulation, wages, and conditions of work and so on is not merely incomplete but dysfunctional if it proceeds to deal with social security on a stand alone basis. The Act, actually, suffers from a serious lack of legislative policy and intent. Ultimately this Act is an eye wash which has neither the capacity to address nor the inbuilt provision to provide solutions to the needs of the unorganized sector. Even the provisions and procedure of the Minimum Wages Act (1948) is so vague and futile that different states of India have fixed abysmally meager wages and that too with so much of variations from state to state.

In fact a comprehensive Act, catering to the security needs of the unorganized sector such as Food, Nutrition, Health, Housing, Employment, Income, Life and accident, and old age remains a dream in India. Still the cries of the unorganized sector goes unattended with the

governments laying red carpets for the corporate and so called investors at the expense and sacrifice of the working class.

Sexual harassment in unorganised sectorSeventeen per cent of working women in India claim that they have experienced sexual harassment at workplace. This high incidence of sexual harassment, both in the organised and the unorganised sectors, was revealed in an opinion poll titled ‘Sexual Harassment at Workplaces in India 2013-2014” released by Oxfam India.

The survey for which women were interviewed in Delhi, Mumbai, Bangalore, Chennai, Kolkata, Ahmadabad, Lucknow and Durgapur was jointly conducted by Oxfam India and Social and Rural Research Institute.

Most women claimed to have faced incidents that were non-physical, according to the survey. “Sixty-six of the 400 respondents reported to have faced a cumulative of 121 incidents of sexual harassment, 102 of 121 incidents reported to be non-physical, whereas the remaining 19 incidents were physical in nature,’’ indicated the survey.

The report also noted that while 87 per cent of the general population and 93 per cent of working women respondents reported awareness of sexual harassment of women at work place, majority of the victims did not resort to any formal action against the perpetrator. The top three categories that have emerged unsafe for women are labourers (29 per cent), domestic help (23 per cent) and small scale manufacturing (16 per cent).

According to Oxfam India CEO: “Violence against women is a human rights violation, whether it is domestic violence within homes or sexual harassment at the workplace. If the domestic sphere is not safe, the workplace is not safe, public spaces are not safe, then, where should women go? It is shocking that 17 per cent of working women face sexual harassment in workplaces as per our study. We believe in the right of every woman to a violence-free workplace. Each one of us has to take a stand and say ‘No to Violence against Women’’’.

Majority of respondents (both general population and working women) perceived women working in the unorganised sector to be more susceptible to sexual harassment due to lack of awareness of legislation. Interestingly, 26 per cent reported to be the sole earning member of their families, indicating that economic vulnerability further makes women more vulnerable to harassment at the workplace.

The study said that the reasons stated for not taking any action by the women despite the harassment were fear of losing the job, absence of any complaints mechanism at the workplace, fear of getting stigmatized and not aware of redress mechanism.

Further the survey pointed out that the Supreme Court Guidelines on Sexual Harassment were known to as many as 17 per cent of the respondents among the general population. It was found that awareness of the Guidelines was higher in metro cities -- 24 per cent as

compared to other areas. Also overall more than 80 per cent of the respondents reported the need for a separate law for dealing with sexual harassment at work place.

legal approach against the sexual harassment in unorganised sector India finally enacted its law on prevention of sexual harassment against female employees at the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Sexual Harassment Act") has been made effective on April 23, 2013 by way of publication in the Gazette of India.

The statute has been enacted almost 16 years after the Supreme Court of India, in its landmark judgment in Vishaka and others v. State of Rajasthan ("Vishaka Judgement")1 , laid down guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and enforce the right to gender equality of working women ("Guidelines"). Codification of the requirements is a much-awaited development and is a significant step towards creating awareness on the issue of workplace sexual harassment and ensuring women a safe and healthy work environment.

B A C K G R O U N D

The Supreme Court of India, in 1997, in the Vishaka Judgment, for the first time, acknowledged sexual harassment at the workplace as a human rights violation. The Supreme Court relied on the Convention on the Elimination of All Forms Discrimination Against Women, adopted by the General Assembly of the United Nations, in 1979, which India has both signed and ratified. In its judgment, the Supreme Court outlined the Guidelines making it mandatory for employers to provide for sympathetic and non-retributive mechanisms to enforce the right to gender equality of working women. As per the Vishaka Judgment, the Guidelines, until such time a legislative frame work on the subject is drawn-up and enacted, have the effect of law and the Guidelines are to be mandatorily followed by organizations, both in the private and government sector. While there were several attempts made to enact a law on this subject previously, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was eventually passed by the Lower House of the Parliament (Lok Sabha) on September 3, 2012, then passed by the Upper House of the Parliament (Rajya Sabha) on February 26, 2013 and received the President's assent on April 22, 2013.

S E X U A L H A R A S S M E N T - O B J E C T I V E O F T H E L A W , M E A N I N G A N D P R O H I B I T I O N

The Sexual Harassment Act has been enacted with the objective of providing women protection against sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment. Sexual harassment is considered as a violation of the fundamental right of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India ("Constitution") and her right to life and to live with dignity as per

Article 21 of the Constitution. It has also been considered as a violation of a right to practice or to carry out any occupation, trade or business under Article 19(1)(g) of the Constitution, which includes a right to a safe environment free from harassment.

The definition of sexual harassment in the Sexual Harassment Act is in line with the Supreme Court's definition in the Vishaka Judgment and includes any unwelcome sexually determined behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical verbal or non-verbal conduct of sexual nature.

The Sexual Harassment Act stipulates that a woman shall not be subjected to sexual harassment at any workplace. As per the statute, presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment; threat of detrimental treatment in employment; threat about present or future employment; interference with work or creating an intimidating or offensive or hostile work environment; or humiliating treatment likely to affect the lady employee's health or safety may amount to sexual harassment.

S A L I E N T F E A T U R E S O F T H E S E X U A L H A R A S S M E N T A C T

Scope : The ambit of the Sexual Harassment Act is very wide and is applicable to the organized sector as well as the unorganized sector. In view of the wide definition of 'workplace', the statute, inter alia, applies to government bodies, private and public sector organisations, non-governmental organisations, organisations carrying on commercial, vocational, educational, entertainmental, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals. As per the Sexual Harassment Act, a workplace also covers within its scope places visited by employees during the course of employment or for reasons arising out of employment - including transportation provided by the employer for the purpose of commuting to and from the place of employment2 .

The definition of 'employee' under the Sexual Harassment Act is fairly wide and covers regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, contract labour, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.

Internal Complaints Committee and Local Complaints Committee : The Sexual Harassment Act requires an employer to set up an 'Internal Complaints Committee' ("ICC") at each office or branch, of an organization employing at least 10 employees. The government is in turn required to set up a 'Local Complaints Committees' ("LCC") at the district level to investigate complaints regarding sexual harassment from establishments where the ICC has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer. The Sexual Harassment Act also sets out the constitution of the committees, process to be followed for making a complaint and inquiring into the complaint in a time bound manner.

Interim Reliefs : The Sexual Harassment Act empowers the ICC and the LCC to recommend to the employer, at the request of the aggrieved employee, interim measures such as (i)

transfer of the aggrieved woman or the respondent to any other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement.

Process for Complaint and Inquiry : Please refer to the following flowchart which provides, in brief, the process to be followed by the aggrieved employee to make the complaint and by the employer to inquire into the complaint. The law allows female employees to request for conciliation in order to settle the matter although a monetary settlement should not be made as a basis of conciliation.

Action against Frivolous Complaints : So as to ensure that the protections contemplated under the Sexual Harassment Act do not get misused, provisions for action against "false or malicious" complainants have been made.

E M P L O Y E R ' S O B L I G A T I O N S

In addition to ensuring compliance with the other provisions stipulated, the Sexual Harassment Act casts certain obligations upon the employer to, inter alia,

i. provide a safe working environment

ii. display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee

iii. organise workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the Internal Complaints Committee

iv. treat sexual harassment as a misconduct under the service rules and initiate action for misconduct.

The employer is also required to monitor the timely submission of reports by the ICC.

If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000 (approx. US$750). A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses.

A M E N D M E N T S T O T H E I N D I A N P E N A L C O D E

As a result of the growing importance of the issues relating to sexual harassment and protection of female employees in India, a new section3 was added to the Indian Penal Code, 1860 through the Criminal Law (Amendment) Act, 20134 , which enlists the acts which constitute the offence of sexual harassment and further envisages penalty / punishment for such acts. A man committing an offence under this section is punishable with imprisonment, the term of which may range between 1 - 3 years or with fine or both. Since the amendment criminalizes all acts of sexual harassment, employers shall be required to report any offences of sexual harassment to the appropriate authorities.

A N A L Y S I S

The Sexual Harassment Act is a much awaited development and a significant step towards ensuring women a safe and healthy work environment. We however list below some issues in relation to this new legislation.

1. The Sexual Harassment Act only addresses the issue of protection of women employees and is not gender neutral. Male employees, if subjected to sexual harassment, cannot claim protection or relief under the law.

2. The definition of 'aggrieved woman' does not make a reference to victimization (on the part of the employer) of the employee who has made the complaint of harassment, which would be fairly common in such situations. This was in fact an important recommendation of the Standing Committee. The definition of the 'sexual harassment', the words 'verbal, textual, physical, graphic or electronic actions' should have been added in order for the purposes of clarity, as it would cover some of the technological developments.

3. It may become a challenge for employers to constitute an ICC at "all administrative units or offices". It may also become necessary for the employer to spend more time and efforts in training members of the ICC who are to be replaced every 3 years. There is also a lack of clarity as to who shall be a chairperson of the ICC in absence of a senior level female employee. Also, in such cases, the composition of the committee members should ideally

have been an odd number in order for the committee to arrive at a decision based on majority.

4. The ICC also needs to involve a member from "amongst non-governmental organisations or associations committed to the cause of women or who have had experience in social work or have legal knowledge." Employers may not be comfortable with such an external representation, considering the sensitivities surrounding this issue and the need to maintain strict confidentiality.

5. The law casts an obligation upon the employer to address the grievances in respect of sexual harassment at workplace in a time bound manner, which in several cases may not be practically possible as the employees or witnesses involved may not easily or readily co-operate.

6. The law allows the employer to initiate action against the complainant in case of a false or malicious complaint. This provision, although meant to protect the employer's interests, is likely to deter victims from reporting such incidents and filing complaints, which may in turn defeat the purpose for which the law was enacted.

7. In case the allegation has been proved, the Sexual Harassment Act allows the ICC to recommend to the employer to deduct from the respondent's salary such sums it may consider appropriate to be paid to the aggrieved woman. However, there may need to be made certain corresponding changes to the Payment of Wages Act, 1936 of India, which restricts the nature of deductions that may be made from an employee's salary.

8. The Sexual Harassment Act does not stipulate any monetary liability on the employer in case of harassment on the part of an employee against another female employee. Infact, in developed countries like the US, although there is no codified law on sexual harassment or workplace harassment, based on case law that prohibit workplace discrimination, there is vicarious liability cast upon the employer in certain cases.

9. Considering that India has a diverse set of religions, cultures, castes, languages, etc. the government also needs to start focusing on providing protection for some of the other forms of harassment, which is fairly common in several of the developed countries.

I hope that unlike some of the other laws, the Sexual Harassment Act is implemented well, which in itself would go a long way in protecting the employees' interests and well-being in India.

1 AIR 1997 SC 30112 Section 2(o), Sexual Harassment Act, 20133 Section 354A, Indian Penal Code, 18604 Published in the Official Gazette on April 2, 2013