This article has been written by Muskan Anand pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution course from LawSikho and edited by Shashwat Kaushik.

This article has been published by Shashwat Kaushik.

Introduction

Women’s organisations and individuals advocating for women’s rights for decades have been trying to get legislation that can protect women’s rights enshrined in the Indian Constitution. In a patriarchal society like India, women’s rights need special protection; therefore, to protect women’s rights, various laws have been passed. One such piece of legislation is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013. This legislation was introduced to protect women from the menace of sexual harassment at the workplace.

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Brief on the prevalence of workplace harassment

A distinction has been made between sexual harassment and sex-based harassment. It stresses the fact that sexual harassment doesn’t always mean sexual desire; it can also be there to assert the power of one sex over the other (Sahgal & Dang 2017). Such behaviours and actions take a toll on a woman’s emotional health, hampering her personal and professional growth. As per various studies, in a low number of women’s workforces, a significant number of women have faced sexual harassment, and a huge number of complaints are not even reported. The culture of silence that has been promoted in girls’ education has conditioned them to silently be the victim of the patriarchal onslaught (Sahgal & Dang, 2017) this is why many cases are not reported.

Unequal power dynamics that are created because of the hierarchical structure of the workplace, when added to the gender power dynamics of a patriarchal society, cause the woman who is lower in rank in this hierarchical structure to suffer as she is made to choose between filing the complaint and keeping her job. The most anticipated result of filing a complaint against the perpetrator is either losing the job or similar consequences. It does not limit here; the woman herself is blamed for the act of sexual harassment of which she has been a victim if she does not go by the societal gender norms. Going to late-night parties, drinking, or wearing short dresses is seen as outside our societal gender norms. These reasons compel  the legislature to make laws to foster a safe work environment.

History of workplace harassment

The Bhanwari Devi gang rape case that occurred in 1992 can be called the juncture from which the demand for legislation on workplace harassment began. Bhanwari Devi was working under the Haryana government in the Women and Child Development Department as a social worker. She was engaged in preventing child marriage when she was gang-raped by people from the dominant and affluent Gurjar community. Thereafter, the occurrence received extensive coverage by the media when the accused were acquitted by the lower court. In response to this episode, in 1997, certain Non-Governmentalorganisationss filed a writ petition in the Supreme Court to protect the fundamental rights of women under Articles 14, 19, and 21. This petition specifically addressed the issue of sexual harassment of women in the workplace. The Supreme Court,  noticing the absence of domestic law on this matter, issued the Vishakha guidelines to fill the vacuum until legislation on the subject was enacted. It took 16 years for the legislature to pass the POSH Act since the Vishakha guidelines were issued.

Key components of POSH Act

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) is landmark legislation that provides a comprehensive framework for addressing sexual harassment at the workplace. The Act defines sexual harassment as any unwelcome act or behaviour of a sexual nature, whether verbal, physical, or visual, that is:

  • A demand or request for sexual favours;
  • A promise of preferential treatment in exchange for sexual favours;
  • A threat of reprisal for refusing to submit to sexual advances; or
  • Any other conduct of a sexual nature that is unwelcome.

The Act also sets out a process for reporting and investigating sexual harassment complaints. Complaints can be filed by the victim or by any person on her behalf. The complaint must be filed with the Internal Complaints Committee (ICC) or the Local Complaints Committee (LCC), depending on the size of the workplace.

The ICC, or LCC, is responsible for investigating the complaint and taking appropriate action. The action that can be taken includes:

  • Reprimanding the accused;
  • Transferring the accused to a different position;
  • Suspending the accused;
  • Termination of the accused’s employment;
  • Filing a criminal complaint against the accused.

The POSH Act also provides for a number of safeguards for the victim, including:

  • Confidentiality of the complaint;
  • Protection from retaliation;
  • Access to legal aid.

The POSH Act is a significant step forward in the fight against sexual harassment in the workplace. It provides a clear and comprehensive framework for addressing sexual harassment, and it offers a number of safeguards for victims. The Act is a valuable tool for creating workplaces that are free from sexual harassment. This kind of regulation is effective in reducing the workload of the judiciary and in providing speedy justice to aggrieved women, which will eventually give female employees confidence that they are protected and will discourage more such acts of harassment.

Provisions related to prevention of workplace harassment

Section 2(n) defines “sexual harassment” as any unwelcome physical contact and advances, sexually coloured remarks, requests for sexual favours, showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. Section 2(o) defines the scope of “workplace” to include all government and private workplaces. These two terms are essential components of Section 3, which prohibits sexual harassment. Subsection (2) of Section 3 lists circumstances that may constitute sexual harassment if they are found to be related to or in connection with any act or behaviour of sexual harassment. These circumstances include: implied or express promises of preferential treatment, threats of detrimental treatment, threats about employment status, interference with work, creating an intimidating, offensive, or hostile work environment, and humiliating treatment likely to affect health or safety.

Reporting and redressal mechanisms outlined in regulations

Internal Complaints Committees under Section 4 and Local Committees under Section 6 are the main mechanisms that regulate prohibition, prevention, and redressal issues related to sexual harassment. Section 4 makes it mandatory for an employer to constitute an Internal Complaints Committee at all offices and/or administrative units, regardless of location. The section also specifies the number of people who should be part of this committee, their experience, and their knowledge, with at least half of the members being women. The tenure of such nominated members is three years, and any member found to be a violator of the law or against whom an inquiry or proceeding is pending will be removed from the committee. On the district level, Section 6 makes it mandatory for the district officer to constitute a local committee to receive complaints of sexual harassment from institutions where the internal committee has not been formed due to having less than ten workers or if the complaint is against the employer himself.

Implementation mechanisms

Filing a complaint

To activate the redressal mechanism, the aggrieved woman needs to file a written complaint with the Internal Complaints Committee (ICC) or the Local Committee as per Section 9 of the POSH Act. If, due to any reason, she is unable to file a written complaint on her own, the presiding officer or members of the ICC, or in the case of the Local Committee, the chairperson or any member of the Committee, will render her all reasonable support to file a written complaint. Within 3 months from the last date of the incident, a written complaint should be filed with the committee, and in the case of a series of events, within 3 months from the date when the last incident happened. The ICC, or local committee, has the power to extend this period if they are satisfied that the circumstances were such that they prevented the women from filing the complaint within the said time. The committee can grant such an extension by recording the reasons in writing.

Inquiry into the complaint

Section 11 empowers the ICC and the Local Committee to inquire into the complaint as per the provisions of the service rule applicable to the respondent. If such rules are absent, then the inquiry should be conducted as per the rules that may be prescribed. In the case of domestic employees, the local committee, if it believes that the case exists, should, within 7 days of receiving such a complaint, forward the complaint to the police to be registered under Section 509 of the Indian Penal Code, 1860, and any other provision of the said code.

If the aggrieved woman informs the police that any of the terms or conditions of the settlement agreed upon under Section 10(2) have not been complied with, then the committee should inquire into the complaint or forward the complaint to the police. The proviso part of this section imbibes the principle of natural justice as it mandates the committee to give a copy of the findings to both parties and to hear both parties during the inquiry.

The committee has been given the power of the civil court to conduct  an inquiry under Section 11(3) when trying the suit in the following matters:

  • Summoning and enforcing the attendance of any person and examining him on oath,
  • requiring the discovery and production of documents,
  • any other matter that may be prescribed.

To ensure the delivery of justice in a time-bound manner, Section 11(4) mandates the committee to complete the inquiry within 90 days.

Recommendations and implementation

For the  safety of the aggrieved woman and to implement the recommendations of the ICC or the Local Committee, the committee, as per Section 12 of the Act, can recommend to the employer, if the aggrieved woman gives so in writing, the following:

  1. Transfer either the aggrieved woman or the respondent to any other workplace.
  2. Grant leave to the aggrieved woman for a period of up to three months.
  3. Grant any other relief to the aggrieved woman as may be prescribed by the committee.

The employer is bound under Section 12(3) to implement the recommendations given by the committee and send the implementation report back to the committee. If the allegations against the respondent are proven, then under Section 13(3), the committee should make a recommendation to the employer or the district officer to:

  1. To take action for sexual harassment as misconduct.
  2. To deduct the amount from the salary or wages of the respondent to pay to the aggrieved woman, the amount to be paid will be determined as per Section 15.

The proviso of clause (ii) of Section 13(3) allows the employer to ask the respondent to pay such an amount in case the employer cannot deduct such an amount from the respondent’s salary, and if the respondent fails to pay upon asking, the committee may forward the order for recovery of the amount as an arrears of land revenue to the concerned district officer. The employer and the district officer have been given 60 days to implement the recommendations of the committee.

Under Section 14, the committee may recommend to the employer or the district officer taking action against the complainant or any of the witnesses If the complaint is found to be malicious or the documents submitted are forged or misleading,. In case either of the parties is not satisfied with the recommendation of the committee or in case of non-implementation of recommendations, under Section 18, the parties are allowed to make an appeal to the court or tribunal.

Obligations of the employer and the district officer

Employers and district officers should:

  • Create a safe work environment.
  • Display the penal consequences of sexual harassment and mention the order constituting the complaints committee.
  • Organise workshops and orientation programmes for employees and members of the committee, respectively.
  • Assist the committee in bringing the respondent or the witness.
  • Provide necessary information in relation to the complaint to the committee.
  • Provide the committee with the necessary facilities for conducting its business.
  • Assist the aggrieved woman if she wants to file a complaint under the Indian Penal Code of 1860.
  • Consider sexual harassment misconduct and take action accordingly.
  • Monitor timely submissions of reports and recommendations by the committee.
  • The district officer can engage NGOs to create awareness of sexual harassment and the rights of women.

Compliance requirements

Documentation and reporting obligations for organisations

The committees are required to prepare an annual report under Section 21 and submit it to the employer or the district officer. The district officer is further required to prepare a brief report on the collected annual reports and send it to the state government. The report must include the following information:

  • The number of complaints received by the committee during the year;
  • The number of complaints that were disposed of during the year;
  • The number of complaints that were pending at the end of the year;
  • The details of the action taken on each complaint;
  • The number of cases that were referred to the police or other law enforcement agencies;
  • The number of cases that were settled through conciliation;
  • The number of cases that were decided by the committee; and
  • The reasons for the decisions made by the committee.

The annual report must be submitted to the employer or the district officer within three months of the end of the financial year. The district officer is then required to prepare a brief report on the collected annual reports and send it to the state government.

The annual report is an important tool for monitoring the effectiveness of the sexual harassment prevention and redressal mechanisms in place. It provides information on the number of complaints received, the number of complaints that were disposed of, and the number of complaints that were pending. This information can be used to identify areas where improvements need to be made. The annual report also provides information on the types of complaints that were received, the action taken on each complaint, and the reasons for the decisions made by the committee. This information can be used to develop strategies to prevent sexual harassment in the workplace.

Section 25 authorises the appropriate government, upon its satisfaction that it is necessary in the interest of the general public and women employees, to:

  • Call upon any employer or district officer to furnish in writing any information related to sexual harassment.
  • Authorise any officer to inspect records and the workplace and submit a report of inspection to it within the given timeframe.

Under Subsection (2) of Section 25, employers and the district officer are bound to submit all information, records, and other documents having a bearing on the subject matter of such an investigation to the investigation officer.

Penalty for non-compliance

Section 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 imposes a penalty on the employer of 50,000 rupees if they fail to:

  • Provide a complaint mechanism for employees to report sexual harassment
  • Investigate complaints of sexual harassment promptly and impartially
  • Take appropriate action against the perpetrator of sexual harassment
  • Provide the complainant with information about the progress of the complaint
  • Take measures to prevent sexual harassment in the workplace

The penalty for non-compliance with Section 26 is a fine of up to 50,000 rupees. The employer may also be held liable for damages to the complainant.

It is important for employers to comply with Section 26 in order to create a safe and harassment-free workplace for their employees. By failing to comply with the law, employers are putting their employees at risk of sexual harassment and creating a hostile work environment.

If the employer is convicted again for the same offence, they will be liable for:

  • Punishment more severe than the first conviction.
  • Cancellation, withdrawal, or disapproval of their business licence.

Challenges and solutions in implementation

As per the Supreme Court of India, a survey conducted and published by a national daily newspaper on 30 national sports federations across India revealed that 16 of them have not constituted an ICC. Additionally, where ICCs have been formed, the number of members is not as per the POSH Act or lacks the mandatory external member.

Besides setting strict guidelines for accomplishing the objective of the POSH Act, there is a high priority demand to introduce programmes related to gender sensitisation at all levels of education and work. A half-heartedly implemented legislation won’t help women get the equal status provided to them under Article 14 of the Indian Constitution. Making stringent rules can be useful to some extent, but even better would be to have such programmes or education in place that teach about gender sensitization. Fostering such education would bring a generation of people in whose time legislation to protect any sex won’t be a need.

Conclusion

The endless struggle of women groups and individuals has no doubt helped in procuring legislation, which does give confidence to many working women about their safety. The Act provides comprehensive provisions for achieving the main objective, but the problem is the non-implementation of these provisions. The solution to these problems is to make stringent rules but more than that, it is to bring gender sensitive programmes and education that will not warrant such legislation in the future.

References

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