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POSH Act

Case behind the development of the POSH Act of 2013

June 25, 2021

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Sexual harassment — Image source: https://rb.gy/tcfy1k

This article is written by Pranav Sethi, from SVKM NMIMS School of Law, Navi Mumbai. This article analyses the case behind the development of the POSH act.

Table of Contents

Introduction

“Young men need to show women the respect they deserve and recognize sexual assault and to do their part to stop it.” – Barack Obama

Workplace sexual harassment is an abuse of a woman’s right to equality, life, and liberty. It fosters an unstable and unfriendly work climate that discourages women from working, jeopardizing their social and economic empowerment as well as the objective of equitable growth. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 was drafted with this principle in mind.

The Supreme Court recognized the need for such laws for the very first time in Vishaka v. State of Rajasthan. In the absence of any regulation at the time establishing means to combat the problem of sexual harassment of women in the workplace, the Supreme Court, acting under Article 32 of the Indian Constitution, issued instructions to be observed at all organizations or institutions until such legislation is created. The Supreme Court recognized key human rights provisions established in the Indian Constitution under Articles 14, 15, 19(1)(g), and 21, as well as rules of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which the Government of India adopted in 1993. The Supreme Court’s directions were to be recognized as the law stated by Article 141 of the Constitution.

In 2013, India’s Ministry of Women and Child Development passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“POSH Act”), which was the country’s first legislation particularly discussing the problem of workplace sexual harassment. The government also issued the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013 (“POSH Rules”), which are based on the POSH Act.

The Criminal Law (Amendment) Act, 2013, which criminalized sexual harassment, stalking, and voyeurism, was also passed in 2013.

The POSH Act was implemented to limit and protect women from workplace sexual harassment and ensure a proper solution to the problem of sexual harassment complaints. While the Act intends to provide every woman (regardless of age or job level) with a safe, secure, and respectful workplace environment free of harassment, effective implementation of the act’s provisions remains a major challenge.

What is the definition of “Sexual Harassment”

“Sexual Harassment” is defined by the Supreme Court of India as “any uninvited, sexually determined physical, verbal, or non-verbal conduct” (Supreme Court of India, 2013). The Court noted examples such as “sexually explicit comments about women, claims for sexual favours, and sexually offensive graphics in the workplace,” among others (Supreme Court of India, 2013). Lin Farley coined the word “Sexual Harassment” during a discussion venue in New York in April 1975, as per Nemy (1975), while she was presenting her statement about women and workplaces to the Human Rights Commission of New York.

The Equal Employment Opportunity Commission of the United States of America came up with a fairly good statement that not only described the act but also the context of these activities because the word “Sexual Harassment” is quite subjective. “Unwelcome sexual advances, requests for sexual favours, and other sexually related verbal or physical conduct” (US Equal Employment Opportunity Commission, 2009).

The commission goes on to say that sexual harassment is commonly defined as follows:

Any express or implied act or behaviour that establishes any parameters and conditions for a person’s employment.
When a person refuses such an act or behaviour, such rejection is being used as an explanation for any job-related measures that have a detrimental impact on the individual.
These acts or behaviours make the workplace unpleasant and unsafe for the individual, making them feel embarrassed and uneasy, which harms performance and conduct.

The Development of Workplace Sexual Harassment Law

One of the foundations of India’s constitutional structure has been the removal of gender-based prejudice. In the Constitution’s Preamble, fundamental rights, basic duties, and Directive Principles, the concept of gender equality is incorporated.

However, the Supreme Court of India (“Supreme Court”) recognized workplace sexual harassment for the first time in its historic ruling of Vishaka v. State of Rajasthan (“Vishaka Judgment”), in which the Supreme Court defined certain criteria and directed the Union of India to pass an adequate law to address workplace sexual harassment. The POSH Act and Rules were implemented 16 years after the Vishaka Judgement, which is nothing short of ironic.

In the context of a particular law in India, the Supreme Court issued the Vishaka Judgment, which established some rules mandating that every employer provide such a system to remedy workplace sexual harassment concerns (“Vishaka Guidelines”), that companies obeyed until the adoption of the POSH Act.

The Vishaka Judgement that brought a remarkable change

Bhanwari Devi, a Dalit woman working for the Rajasthan government’s rural development programme, was mercilessly gang-raped in 1992 as a result of her attempts to end the then-common practice of child marriage. The event brought to light the dangers that working women face on a daily level emphasizing the importance of putting in place protections in this area. Under the umbrella of Vishaka, women’s rights activists and attorneys launched public interest litigation in the Supreme Court on behalf of the nation’s women in the workplace.

Facts of the case

In the year 1985, Bhanwari Devi, a woman from Bhateri, Rajasthan, began working for the Rajasthan Government’s Women’s Development Project (WDP). She worked as a ‘Saathin,’ which translates to ‘friend’ in Hindi.

In 1987, as a recognized organizations course of her employment, Bhanwari investigated a case of attempted rape involving a woman from a nearby village. She received complete approval from the people of her village for this gesture. Bhanwari took on another subject in 1992, this one based on the government’s anti-child marriage campaign. Despite as they were informed that child marriage is forbidden, all residents of the village expressed their displeasure and ignorance of the programme.

Meanwhile, Ram Karan Gurjar’s family had made plans to organize such a marriage for his young daughter.

Bhanwari, doing her job, tried to convince the parents not to execute the wedding, however, her efforts were unsuccessful. The family decided to go ahead with the wedding. The aforementioned marriage was prevented on May 5, 1992, by the sub-divisional officer (SDO) and the Deputy Superintendent of Police (DSP). The marriage was, however, conducted the next day, and no police action was taken. The locals later discovered that the police visits were caused by Bhanwari Devi’s acts.

As a result, Bhanwari Devi and her family were subjected to a boycott. During the boycott, Bhanwari quit her job. On september 22, 1992, five men, four in the above Gurjar family, Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar, together of one Shravan Sharma, stabbed Bhanwari Devi’s husband and then violently gang-raped her to take revenge.

The police were trying everything they could to avoid lodging a lawsuit against the culprit, who caused the investigation to be delayed. Despite the harsh criticism, Bhanwari Devi was able to file a complaint due to her unwavering commitment to obtain justice. For fifty-two hours, the medical examination was postponed. The investigator, on the other hand, did not specify any rape commission in the investigation, instead focusing on the perpetrator’s age.

All of the suspects were acquitted in the Trial Court despite the lack of substantial proof and with the support of local MLA Dhanraj Meena. However, several women activists and organizations who backed Bhanwari were outraged by her acquittal. These organizations banded together and fought for justice, resulting in the filing of a Public Interest Litigation (PIL).

Vishaka, a women’s rights organization, launched the PIL. It focused on the implementation of women’s fundamental rights in the workplace under the requirements of Articles 14, 15, 19, and 21 of the Indian Constitution, as well as the necessity to protect women from sexual harassment at work.

Issues raised

Is it possible for the Court to apply international law in the absence of existing measures?
Is there any obligation on the part of the employer when sexual harassment is perpetrated against/by its employees?
Whether sexual harassment at work is a breach of gender inequity rights and the right to life and liberty?

Judgment of the case

The Hon’ble Supreme Court of India recognized the need for a law that would prevent sexual harassment as well as provide women with a safe and healthy work environment. In any incidence of sexual harassment, Sections 354 and 354A of the Indian Penal Code, 1860 were to be appealed to, although these laws were not particular to the subject at hand. This made the Hon’ble Court appreciate the importance of enacting appropriate and effective legislation to address sexual harassment.

The Hon’ble Court proceeded with the matter using international Conventions as a guide.

It referenced the Beijing Set of Guiding principles on the Judiciary’s Autonomy in the Law for Asia Region, which stated that the judiciary should serve as a custodian of citizens’ rights and establish laws autonomously in the presence of any legal structure. The Hon’ble Court next turned to the Articles of the Convention on the Elimination of All Forms of Discrimination Against Women for guidance (CEDAW).

They had been provided as follows –

Article 11(1)(a)&(f) of the Indian Constitution, which states that the State takes all appropriate measures to eliminate discrimination against women in the field of employment.

Article 24 of the Indian Constitution, which states that the State shall undertake to adopt all necessary measures at the national level aimed at achieving the full realization.

The Supreme Court of India developed the Vishaka Guidelines, which were to be recognized as the law declared by Article 141 of the Indian Constitution, to prohibit sexual harassment in the workplace.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 was based on these standards.

For the very first time, the Supreme Court recognized obvious legislative insufficiency and recognised workplace sexual harassment as a violation of human rights. The Supreme Court based the Vishaka Guidelines on the Convention for the Suppression of All Forms of Discrimination Against Women, which the United Nations General Assembly enacted in 1979 and which India has both signed and ratified.

According to the Vishaka Judgment, until a legal structure on the topic is formulated and adopted, the Vishaka Guidelines established by Article 32 of the Constitution will have the force of law and must be obeyed by organizations in both the commercial and public sectors.

‘Sexual Harassment,’ according to the Vishaka decision, encompasses such undesirable sexually motivated actions (whether directly or indirectly) as:

Physical contact and advances;
A demand or request for sexual favours;
Sexually coloured remarks;
Showing pornography; and
Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Sexual harassment according to Vishaka Guidelines

The Vishaka case guidelines emphasized the need of defining sexual harassment. The recommendations did this by summarizing an interpretation from the CEDAW Convention’s General Recommendation 19.

Sexual harassment covers any unwanted sexually motivated behaviour (direct or indirect) such as:

Any sexual acts carried out that are directly related to the victim’s employment or work
Conduct that can be humiliating for the woman
Any sexual conduct that affects the health and safety of a woman.
Physical contact and advances
A demand or request for sexual favours
Sexually-coloured remarks
Showing pornography
Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.

Sexual harassment includes both the development of a hostile work atmosphere and non-consensual sexual advances or requests. With the introduction of Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, India finally had a definition of sexual harassment. When it comes to sexual harassment, you can see exactly what the Act refers to. At work, only women are shielded from sexual harassment.

In India, men are unable to launch a workplace sexual harassment complaint against another male or female employee. every working woman is protected against sexual harassment in the workplace If she falls into specified categories.

When any of these actions are performed in conditions where the victims of such behaviour have a reasonable suspicion that the behaviour is degrading and may pose a risk to the healthcare in connection to the victim’s terms and conditions of employment (whether she is drawing a salary, honorarium, or voluntary service, whether in government, public, or private enterprise), it amounts to sexual harassment. When a woman has reasonable reasons to believe that her objection will disadvantage her in connection with her employment or work (including recruiting and promotion), or when it creates a hostile working environment, it is discriminatory.

Conclusion

The Hon’ble Supreme Court of India affirmed the fundamental ideals of equality and liberty in the Vishaka judgment. Many women have been moved by the establishment of a law against sexual harassment to speak out against the misery they had been subjected to in silence until 1997. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, was based on the Vishaka Guidelines. The Vishaka Judgement embodies the true meaning of judicial activism, and it has served as a model for other countries. It is critical to understand that, even though India has established such extensive legislation to protect women, it remains one of the most dangerous countries for women.