This article has been edited and published by Shashwat Kaushik.
Table of Contents
Sexual harassment of women in the workplace is a global problem. This issue has been widely addressed by countries by making legislation and laws to eliminate the problem of sexual harassment of women in the workplace. This is a socio-legal problem. India is a patriarchal society where the majority of the workforce consists of males. This problem was initially ignored; however, the participation of women in the country’s workforce increased to 37 percent in 2022-23 up from a mere 23 percent in 2017-18 There has been a constant need to provide a safe work environment for women, free from sexual harassment. A survey done by the Women’s Indian Chamber of Commerce and Industry’s (WICCI) Council of Ethics, in which 1,101 females participated, found that approx. 50% of women experienced “physical contact or advances” or inappropriate touching at least once at the workplace.
Though a lot of measures are being taken to bridge this gender bias and encourage women to come out and work, providing a safe working environment free from sexual harassment of women is a key focus area of the authorities.
Despite the formulation of rape laws, other relevant legislations and the Sexual Harassment of Women at Workplace (Prevention, Proibition and Redressal) Act of 2013 it is still to be seen how much of the guidelines have been implemented and executed and what has been the outcome of the enactment. The purpose of this article is to review the impact of the Act on providing a safe working environment for women, free from workplace sexual harassment. What are the challenges the management faces in implementing the provisions of the POSH Act 2013 at the workplace?
Genesis of the POSH Act
Articles 14, 15, and 21 of our Indian Constitution guarantee the right to equality and the right to life as the fundamental rights provided to every citizen of India. However, due to the deep-rooted gender bias, Indian women to date face workplace sexual harassment. Over the years, few brave women have raised their voices against this social evil, which shaped the legal framework for the present day POSH Act of 2013.
Also, international conventions like CEDAW and Convention C111 – Discrimination (Employment and Occupation) Convention, 1958 (No. 111) (ilo.org), helped in shaping the POSH Act. As a party to the CEDAW convention, India must provide gender equality in the workplace, gender-specific violence, and unwelcoming sexually determined behaviour, which have been incorporated in the POSH Act – India ratified the International Labour Convention on Discrimination document, through which it must prohibit and prevent any gender-based discrimination in the workplace.
The genesis of the POSH Act can be traced back to the famous Vishaka & Ors vs. State of Rajasthan & Ors (1997) case.
Bhanwari Devi was appointed as a sathein (friend) by the Rajasthan government in 1985 as part of the Women Development Project of the state government. In 1992, the Rajasthan state government launched a campaign against child marriage. Bhanwari Devi, as part of this campaign, made attempts to persuade the family of the high-class Gujjar community against marrying a 9- month-old girl. This angered the high-class Gujjars, who on September 22, 1992, brutally raped her.
However, in 1995, the District Court acquitted all five accused. Under pressure from the women activist groups, the state government appealed against the judgement in the High Court Till 2007, only one hearing was held in her matter. While justice still eludes her, it has been instrumental in paving the way for the POSH Act of 2013. Women’s activists and lawyers have propagated the view that Bhanwari attracted the ire of her rapists solely based on her work. The petition, filed by Vishakha and four other women’s organisations under the collective platform of Vishakha, resulted in what is popularly known as the Vishakha Guidelines. The landmark judgement of August 1997 provided the basic definitions of sexual harassment in the workplace and laid down guidelines to deal with it.
While the Indian Penal Code of 1860 contains provisions to criminalise sexual harassment, the Supreme Court felt that there is a need to have separate legislation to deal with workplace sexual harassment. It was finally the Apparel Export Promotion Council vs. A.K. Chopra (1999) and Mrs. Rupan Deol Bajaj and Anr. vs. K.P.S. Gill and Anr. (1995), also known as the “butt slapping case,” that led to the enactment of the POSH Act 2013. In the Rupan Deol Bajaj case, the Supreme Court felt that Section 354 (outraging the modesty of a woman ) and Section 509 (insulting the modesty of a woman) of the Indian Penal Code did not adequately address the issue of sexual harassment . The Supreme Court felt that there was a need for further reform on what constitutes sexual harassment. The final trigger point was the Nirbhaya Gang Rape and eventually, on December 9, 2013, the POSH Act and the POSH Rules came into force .
Salient features of the POSH Act
- The Act gives a framework for the prevention, prohibition, and redressal of workplace sexual harassment complaints, both in organised and unorganised sectors. It provides guidelines for creating awareness, conducting training, and setting up the complaint redressal mechanism to address complaints of sexual harassment.
- The Act gives an explicit definition of sexual harassment in Section 2(n), as a behaviour that is unwelcome, sexual, subjective in nature, impact, not intent matters, and often occurs in a matrix of power.
- The Act provides forms of workplace sexual harassment, i.e., what constitutes inappropriate behaviour:
- Quid Pro Quo (literally ‘this for that’), i.e., an implied or explicit promise of preferential/detrimental treatment in employment.
- Hostile work environment.
- The Act expands the definition of workplace u/s 2(O) of the POSH Act 2013 to include any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey. As per definition, the workplace includes both organised and unorganised sectors.
- The Act has laid down detailed guidelines on:
- How to form the Internal Committee.
- The manner and form in which the complaint is to be made.
- It lays down the inquiry procedure to be followed by the internal committee and its powers. The Internal Committee has the power of a civil court, and any complaint before it has to be decided within 90 days.
- It provides for efforts to be made by the internal committee for conciliation at the request of aggrieved women.
- It lays down the detailed provisions for submitting the inquiry report.
- Factors to be looked into while awarding any compensation.
- The Act lays down in detail the duties of the employer:
- Providing a safe working environment.
- Creating awareness about penal consequences of sexual harassment.
- Organise workshops to create awareness about the POSH Act, 2013.
- Providing necessary facilities to the internal committee for dealing with the complaint and conducting an inquiry.
- Assist in securing the attendance of respondents and witnesses
- Access to information at the IC for inquiries on a complaint.
- Provide assistance to the aggrieved woman.
- Cause to initiate action.
- Treat sexual harassment as misconduct under the service rules and initiate action for such misconduct.
- Monitor the timely submission of reports by the internal committee.
- Section 27 of the Act states that the offence under the POSH Act is non-cognizable. No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
Critical analysis of the POSH Act
Even after 10 years of implementation of the POSH Act, 2013, its provisions have not been properly implemented and executed. The Supreme Court of India, while deciding on the Aureliano Fernandes vs. State of Goa (2023) matter, made the following observations in the implementation and execution of the POSH Act 2013:
- The success of the POSH Act depends on a properly constituted internal committee (the Internal Complaint Committee is now called the Internal Committee (IC)), a local committee. An improperly constituted internal committee is an impediment to conducting inquiries on sexual harassment complaints, and a half baked inquiry may result in punishing the innocent.
- The Court referred to an article in a leading newspaper that conducted a survey on 30 national sports federations, out of which 16 do not have an internal committee to date, and wherever the internal committee has been constituted, it does not have a stipulated number of members or an external member.
- There is a need to create awareness amongst employees about the POSH Act and their rights and encourage them to proactively report any such incidences of sexual harassment. The employees should be made aware of the facts, i.e., the procedure for filing a complaint, conducting an inquiry and the consequences they will face if the complaint is found to be true or false.
The Court gave the following directions/observations to rectify the problems :
- The Union of India, all state governments and union territories need to conduct a time bound survey to determine whether all concerned departments, ministries, government organisations, public sector undertakings, etc. have constituted IC / LC strictly in compliance with the provisions of the POSH Act, 2013.
- All entities shall make the following information available on their website i.e. details of the Internal Committee, their e-mail ID and contact numbers, the procedure prescribed for submitting an online complaint, relevant rules, regulations and internal policies, etc. The information posted on the website needs to be updated from time to time.
- A similar exercise shall be undertaken by all the statutory bodies of professionals at the apex level and the state level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by universities, colleges, training centres and educational institutions, and by government and private hospitals/nursing homes.
- Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarise members of the ICs/LCs with their duties and how an inquiry ought to be conducted upon receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received until the inquiry is finally concluded and the report is submitted.
- The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars, and awareness programmes to upskill members of the ICs/LCs/ and to educate women employees and women’s groups about the provisions of the Act, the Rules, and relevant regulations.
- The National Legal Services Authority (NALSA) and the State Legal Services Authorities (SLSAs) shall develop modules to conduct workshops and organise awareness programmes to sensitise authorities/managements/employers, employees and adolescent groups to the provisions of the Act, which shall be included in their annual calendar.
- The National Judicial Academy and the State Judicial Academies shall include in their annual calendars orientation programmes, seminars and workshops for capacity building of members of the ICs/LCs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules.
In light of the aforementioned, it needs to be observed that even after 10 years of the POSH Act, 2013, there are so many lapses and lacunas in its implementation and execution in the government sector itself. What about the private sector and the unorganised sector?
Drawbacks of the POSH Act
- The Act has laid down unrealistic responsibilities in the hands of the employer: The entire onus of the implementation of the provisions of the POSH Act, 2013 has been imposed on the employers. Many times, due to a lack of proper resources, personal bias, and lack of awareness, since this is not their area of expertise, there can be serious lapses in the implementation of the provisions, which leads to defeating the purpose of the Act itself.
- Failed implementation of the POSH Act in the informal sector: The Act provides for constituting local committees to cater to the unorganised sector. However, a study conducted by the Martha Farrell Foundation in 2018 revealed that many districts in the country have either failed to establish the committees or aren’t very active as they are not aware of their roles. The central government has not allocated budgets to the state government for implementing the provisions of the Act.
- Failure on the part of the government to ensure effective implementation of the provisions of the POSH Act: The government has imposed the entire burden on employers to ensure a safe working environment for women. It has not provided any robust mechanism to ensure that the provisions laid down in the Act are implemented or not. Even government organisations have failed to constitute the Internal Committee and conduct the necessary awareness and training.
- Subjectivity around the interpretation of the various provisos of the Act: Though the Ministry of Women and Child Development, along with the POSH Act 2013, has also issued POSH Rules, many times serious lapses have been seen in the implementation of the Act. Though it is socio-legal legislation, the organisations lack expert knowledge and understanding of the Act, as it does require legal expertise to ensure proper implementation of the Act. The Internal Complaint Committee has the power of the civil court and needs to follow the principles of natural justice, but the people on the committee are laymen. They lack legal knowledge to understand the implications and interpretation of the various provisions, which at times has led to serious lapses in dealing with the complaint.
- Gender Bias Act: The Act only addresses sexual harassment issues faced by women; it has not considered men or LGBTQ individuals. However, it does allow organisations to frame their own gender-neutral internal POSH policy. However, many times it’s seen that instead of solving a problem, it tends to create a bigger problem, as a gender-neutral internal posh policy can be used as a tool for retaliation. Therefore, it is advisable to have a balanced act that provides an equal opportunity for all employees to be heard.
- Fear of Retaliation: As per the naturewise reports of the complaints received by the National Commission for Women for the year 2020, only 201 complaints were filed of sexual harassment of women in the workplace. This shows the failure of the Act. Women are still not comfortable reporting issues of sexual harassment, as it is considered taboo; they fear retaliation from colleagues, family members, etc. Since it is social legislation, the onus lies on society to ensure a safe environment for women to raise their concerns, and at the same time, it is the responsibility of the government to ensure that the victims feel comfortable sharing their concerns.
Recommendations for the POSH Act
- The POSH Act should be placed under the Labour Ministry: The effective implementation and interpretation of the POSH Act should be placed with the Labour Ministry. As of date, the Act is vague around the definition of competent authority. The implementing authority is the Ministry of Women and Child Development, whereas from a compliance and audit perspective, the reporting is to the Ministry of Corporate Affairs, though the subject pertains to labour issues. Thus, making it nobody’s responsibility, there is no serious accountability around the implementation of the provisions of the POSH Act.
- The government must create a robust mechanism for implementing the Act and data collection: The government must create a robust mechanism for implementation of the provisions of the Act, ensuring that the Internal Committee is properly constituted, complaints are raised without fear of retaliation, and they are properly heard and decided. A nationwide awareness drive and employee survey must be conducted to collect the data.
- Conduct etiquette training and life-skills training in schools, colleges and corporations: Sexual harassment is a social issue, mainly due to the wide gender bias in society. There is a need to conduct gender sensitization workshops, life-skills workshops, etiquette training, and legal awareness workshops at the school and college levels. The workforce needs to be sensitised to the POSH Act 2013.
- The Internal Complaint Committee should be replaced with a complaint committee at the district Level: We have district consumer forums and labour forums; similarly, instead of POSH complaints being dealt with by the Internal Committee, which is mostly incompetent to deal with such complaints, an expert complaint redressal forum must be created that is proactive, competent and empowered enough to deal with such complaints.
Sexual harassment is a social issue unless and until we, as a society, adopt an attitude of zero tolerance towards such heinous acts. We will not be able to address these issues. Indian society has been a male-dominated society, and making laws favouring women doesn’t solve the problem until and unless we educate the society and remove this deep-rooted bias.
Also, any law or provision is ineffective until and unless it is implemented for which active participation of all the stakeholders is required, that is, the Government, Judiciary, members of civil society, NGOs, etc.