This article has been written by Soumali Roy. This article has been edited by Smriti Katiyar (Associate, Lawsikho).
Table of Contents
Introduction
Gone are the days where only men were considered capable of being the bread earners of a family. Nowadays women work shoulder to shoulder. However, with the larger intrusion of women in the Indian workforce, sexual harassment at workplaces have reached greater dimensions. It violates a woman’s fundamental right to equality and life guaranteed under Articles 14, 15 and 21 of the Constitution. It creates an insecure working environment for women and further declines their confidence to compete in today’s world. It hinders their work performance and pulls them down in their social and economic growth adding up to their physical and emotional suffering.
The Prevention of Sexual Harassment Act also known as the POSH Act came into force in December 2013. It is applicable all over India. This Act was brought into force keeping in view to provide a safe working environment to all the women working across different sectors in India-organised or unorganized. The POSH Act defines sexual harassment as making physical contact and advances, requesting or demanding sexual favours, making sexually coloured remarks, showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of sexual nature. The traditional method of settlement of criminal cases can go on for decades. Keeping this scenario in mind, this special Act was made for the speedy redressal of crimes of sexual nature against women at their workplaces. However, one can still file a police complaint under the Indian Penal Code against sexual harassment.
It is mandatory as per this Act for every employer to set up an Internal Committee (IC) with 10 or more employees. For establishments where there are less than 10 employees or the complaint is against the employer itself, the State Government’s district officer or collector is required to form a Local Committee (LC) in each district and at the block level if required. The Government also must impart training, organize awareness programmes, maintain data on the number of sexual harassment cases filed and ensure proper implementation of the law at every nook and corner.
After the implementation of this Act, many women have started speaking out against sexual harassment but that’s only been limited to the formal sector. It has not been of much help to the women employed in the informal sector. There the women still find it difficult to report such cases because of the stigma, fear of losing the job and lack of belief in the justice system. There are plenty of legislative, judicial and implementation gaps in the Act which need to be addressed. My article discusses the history of the Act, the loopholes and suggestions for better implementation of this Act.
A brief history of the Act
Bhanwari Devi was a social worker employed with the Rural Development Programme of the Government of Rajasthan. In the year 1992, she was gang-raped in front of her husband by upper-caste men angered by her endeavours to prevent child marriage in their family. She was eluded by the Indian justice system. The accused were acquitted of rape and instead charged with a lesser offence. They had to serve in jail only for 9 months. The state authorities and her employer denied any responsibility as she was attacked in her own field.
There was a huge public outrage after this incident which paved the way for new sexual harassment prevention laws for women at workplaces. The social activists filed a Public Interest Litigation (PIL) in the Supreme Court demanding safer workplaces for women and employers to take responsibility to protect their women employees at every step. The Supreme Court acknowledged the glaring inadequacy and acted on this petition in Vishakha vs State of Rajasthan in the year 1997 and laid down the Vishakha guidelines.
In these guidelines, the Supreme Court made it mandatory for every employer to take necessary steps for the protection of women employed at their organisations against sexual harassment and also provide procedures for mitigation. In 2013, India enacted the POSH Act to protect women employees against sexual harassment both in the formal and the informal sector.
Case laws
Sutapa Roy was an employee at Seagull Book Stores Pvt Ltd. The manager started making sexual advances towards her. Initially, she was tolerating the harassment until December 1999, when she verbally informed a Senior management Executive but was petrified to make a written complaint fearing adverse job consequences. Despite her complaints, the harassment continued and involved kissing, verbal overtures and proposals for one night stands in hotel rooms. Soon after her written complaint, she was made to sign a resignation letter or accept termination. She accepted the former. The Seagull book stores formed a complaints committee after two months of this episode to look into the charges but it failed to function properly. Thereafter a network of women’s organizations in the city gathered to create public awareness on the issue. They decided to arrange Dharnas in front of Seagull Bookstall at the Calcutta Book Fair 2001. Finally, after many hues and cries the Seagull management decided to offer redress. They paid monetary compensation and also issued a letter of apology to Sutapa. While reckoning her emotional journey Sutapa said “the apology letter is the first recognition of my dignity as a human and it wouldn’t have been possible without the support of the movement.
Nalini Netto, an IAS officer was assaulted by the then Transport Minister of Kerala at his office during an official meeting. She informed her husband (also an IAS officer) and her colleagues about this who advised her to remain silent. She didn’t lodge a complaint fearing to tarnish her image. She requested the intervention of the Chief Minister when the situation went out of hand but simply asked for a different working environment instead of prosecution of the perpetrator. Immediately after her case, another incident came into light, of Prakriti Srivastava, alleging harassment by the same Minister. Instead of filing a written complaint, she reported the incident to the city police commissioner. She was asked to depose during the investigations. She started receiving threats of grave nature from the Minister after her deposition. Unable to bear the torture, she filed a written complaint under section 354 of the Indian Penal Code (IPC). The Government appointed some committees to look into the matter which insisted on having a public trial though as per Vishaka guidelines it is to have an in-camera hearing. In Nalini’s case, a Fast-Track court in 2008 acquitted the Minister of charges of harassment and sexual assault and in Prakriti’s case, the culprit was sentenced to one year of imprisonment.
Loopholes in the Act
- Crisis in the informal sector
The majority of women working in the informal sector do not come under the shield of labour laws and are not provided social benefits such as maternity leaves, sick leaves or health insurance. They work in a perilous environment and are often victims of rampant sexual harassment. They are not able to report it because they do not have properly functioning LCs for their workplace and have no accessible channels for redress. For instance, Nisha, an ASHA worker reported that sometimes when they are alone at their workplaces, the male colleagues’ comment on their dressing and ask lewd questions making it uncomfortable for them to carry on their work. Some of their work requires them to make calls at night in case of emergencies making them vulnerable to further harassment.
Domestic workers are another significant category of workers who are vulnerable to sexual harassment because of the nature of their work. They suffer sexual harassment and violence in isolation of private spaces and sadly they also are excluded from key labour protections. For protecting domestic workers India needs to ratify the International Labour Organization’s Domestic Workers Convention which hasn’t been done yet. The provisions of the POSH Act says that for domestic workers the Local Committees have to report the case to the police. The fear of humiliation at police stations and threats of losing work makes the domestic workers reluctant to report such cases. Women are even scared to report rape cases let alone filing a complaint about sexual harassment. Martha Farrell Foundation interviewed a part-time domestic worker where she was asked about the awareness of the POSH Act. She said in the interview that though she is aware of this Act, would never think of going and reporting an incident to the police because this law doesn’t do anything to protect them. “Even if we complain, nothing happens. When we protest against an incident the police pressure us to be silent. The employers file false complaints against us when we think of complaining to the police.”
Based on 85 interviews conducted by the Human Rights Watch of women working in both formal and informal sectors, it was revealed that there’s very little that the Government has been doing in enforcing this law and filling the gaps in mechanisms in the informal or unorganised sectors. A study was conducted by Martha Farrell Foundation in 2018 which revealed that many districts in the country have either failed in establishing the committees as declared in the Statute or have failed to maintain harmony with the legal provisions in the Statute. The members of the district where LC has been constituted are not aware of their roles and responsibilities and that indicates their inability to handle sexual harassment cases. There’s a lack of awareness about the LCs because the Central government has not provided the State governments with funds for spreading awareness. There is no budget allotted for the implementation of the POSH law. All of this indicates a failure of implementation of this law in the informal sector.
- Sexual harassment at the workplace leading to a lack of women participation in the workforce
India is one of the fastest-growing economies with an accelerating output growth but regrettably, the Indian Labour market portrays a different scenario with several hard-hitting negative features. It marks a sunken rate of women labour force participation across states. Going by this scenario, it is evident that the concept of gender equality in the sphere of employment is in jeopardy. We are well aware that gender equality is quintessential for smooth economic development. The Global Gender Gap Report of the World Economic Forum for the year 2015 finds a positive concatenation between gender equality and per capita GDP.
If we try to reach the crux of gender inequality in India’s workforce, we will find that one of the reasons is sexual harassment at the workplace. Workplaces are supposed to impel confidence but in turn, become a site of violence against some women. It discriminates against every woman’s right to work followed by equal pay for equal work and jeopardises her opportunities for advancement. Research conducted by ILO suggests that young, financially independent and single women are more prone to sexual harassment. Long gone are those days where women stayed home to manage only the household and were considered subordinate to men. The changing times have marked an increase in educated women. The number of women doctors, lawyers and other professionals continue to swell and excel. Despite being capable they are unable to have compatible working environments.
It’s high time we recognize the fact that more participation of women in the workforce is important for the growth of our nation. There is a need to revisit the share of women who are working or are actively looking for work. To remove the impediment in economic growth the gender gap that exists in education, workforce participation or entrepreneurial activity must not be allowed to exist.
Conclusion
The swiftly changing work environment fortifies the soaring importance of zero-tolerance policy towards sexual harassment against women at the workplace. The POSH Act is a milestone in the history of gender equality legislation in India where the Government has made remarkable advances in the Vishakha guidelines. It puts a mandatory obligation on every employer to spread awareness and protect and provide redressal to the women working in their organisations against sexual harassment of any nature. However, as against the above-broached scenarios, it is evident that the Act has not taken into cognizance the fact that a bulk of women are employed in the informal sector. The majority of them have been kept outside the protective cover of this law. This includes the women employed in rural areas, small enterprises, unorganised sectors, flexible workplaces, self-employed and those working in home-based industries.
The Indian Government needs to take urgent steps to raise awareness and ensure the implementation of the laws at the grassroot levels.
The steps must include:
- Creating and monitoring effective operation of the ICs and LCs.
- Carry out inspections and sanction employees who fail to comply with the orders.
- Ensure proper hearing and redress for victims.
- Ensure a transparent complaint mechanism and adequate compensation for the victims.
- Publishing data on an annual basis on the number of sexual harassment cases filed and resolved by the committees.
- Ratify and implement the ILO convention on violence and harassment.
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