This article has been written by Adv. Aruna Zaccheus pursuing the Introductory Course: Legal Writing For Blogging, Paid Internships, Knowledge Management, Research and Editing Jobs from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).
Prior to 2013, there were no specific laws protecting women from sexual harassment at their workplace. Though the Indian Penal Code had a provision to punish any offence related to women, it did not address the issues directly that a woman faced at work. It was only after the famous case of Vishakha vs. the State of Rajasthan that the Hon’ble Supreme Court of India issued guidelines to give a safe work environment to women at the workplace. The Supreme Court framed guidelines and issued directions to the Union of India for a law to combat workplace sexual harassment. The main intention behind the guidelines was to provide a platform for redressal and grievance mechanisms against workplace sexual harassment. It was these guidelines that motivated the formation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH)
What is PoSH?
The long title of the Act is “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” PoSH is a short form of Prevention of Sexual Harassment. It means the prevention of sexual harassment at any work place, which includes domestic, factory workers and office professionals, in short, any working woman from both regulated and unregulated sectors is protected under this act. The Vishaka Guidelines laid the foundation for the government to enact a law to prevent and protect women from sexual harassment in the workplace. The law has established policies and procedures to address the grievances of female employees. It also includes the process of constitution of the Internal Investigating Committee at various levels, the grievance redress mechanism, punishment, and interim relief, etc.
The PoSH Act is an effort to provide a safe and healthy work environment for any woman who chooses to become independent. The Act protects the fundamental rights of Articles 14 and 15 on equality enshrined in the Constitution of India for women and Article 21 for the Right to Life, which includes the right to live with dignity and to engage in any type of employment or business. Article 21 also guarantees the right to a safe work environment, which is both physically and mentally safe. Whereas other than being a mandate from the Constitution of India, the right to live with dignity is also recognised as a human right recognised universally through the Convention on the Elimination of all Forms of Discrimination against Women. The Government of India ratified the convention on June 25th, 1993. Therefore, this act was enacted to give effect to the International Convention and to empower women through the fundamental rights of equality, life, and employment enshrined in the Constitution of India.
How is PoSH implemented?
The Act was enforced on 22nd April, 2013. It is applicable to all the states in India. All organisations with more than 10 employees need to conduct an awareness programme for the employees of the organisation. The organisation has to constitute an internal committee to address the issues and complaints related to sexual harassment within the organisation. The internal committee will also include external members from NGOs working for the welfare of women. Organisations with fewer than 10 employees can approach the Local Committee set up at District Level by the State Government.
PoSH has become a part of every employment contract in every organisation. This Act applies not just to the organised sector but also to the unregulated sectors like small industries and domestic workers. The Government constitutes a Local Committee at the district level that addresses the issues and complaints of women from unregulated or small-sized establishments.
Thus, it is an all-inclusive Act comprising detailed definitions on essential terms like “workplace,” “aggrieved women,” and “sexual harassment.” It elaborates on how behaviour can be termed as sexual harassment and the different forms of sexual harassment.
The aim of the PoSH Act
The aim of the act is to provide a safe work environment for every woman who is willing to earn her living with dignity and equality. Section 3 of the Act outlines the aim of the policy is prevention. Section 3 also states that any threat to employment at present or in the future, discriminating or preferential behaviour at work, humiliation, and causing undue mental stress by creating a hostile work environment will also be termed as sexual harassment.
The act defines sexual harassment in Section 2 (n) as follows:
- Contact or advances on the physical body; or
- Demand for sexual favours, or
- Making sexually charged comments, or
- Showing Pornography, or
- Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
The scope of the definition of sexual harassment widened in terms of identifying the behaviour present in the circumstances or context of sexual harassment in Section 3. It has measures for the prevention of sexual harassment by identifying the behaviour of the person, both expressed and implied, in terms of preferential treatment or detrimental treatment at work. Expressed or implied threat regarding current or future employment causing undue hardship by creating a hostile work environment, being offensive or intimidating, or interfering with the work. Humiliating the woman is likely to affect her health or safety.
Section 2(o) is a comprehensive definition of the workplace, which includes almost all types of workplaces where a woman is deemed to be engaged. It also includes company transport, on-site and off-site offices, or any office as a workplace. The section provides a comprehensive list of places that can be a workplace, but it is not exhaustive. The creator of the law left the provision open to a broad interpretation of the term “workplace,” keeping in mind the possibility of technological advancement in the future.
Therefore, even remote workers can file a complaint of sexual harassment even though they are not present in the physical office. Sexual harassment, as defined in section 2 (n), can be performed through virtual means such as phone calls, emails, and social media. Virtual sexual harassment has an impact on the overall productivity, and excessive mental stress has an impact on her overall well-being.
The outcome of the PoSH Policy
The policy is a large umbrella, and it covers all the possible places a woman may be working and all the types of employment, whether permanent or contract staff, domestic maids, staff with or without remuneration, trainees and interns, which also include students.
- Duties of Employers
The employer is mandated through the provision of the act to implement the PoSH policy in the organisation. The onus of implementation and compliance of policy is on the employer. The act sets a list of obligations on employers to be compliant with the PoSH policy.
- Chapter VI, section 19 of the Act, lists all the duties of an employer to provide a safe working environment for any female employee. The word “Every Employer” gives a wide interpretation of the term employer in section 2 (g). It includes both organised and unorganised sectors. The following is the list of duties an employer is bound to do:
- Provide a safe working environment for female employees not only from the employees working within the organisation but also anyone who may come into contact with the employee. For example, vendors, contractors, and delivery people.
- Display the consequences of sexual harassment with its penal provisions in accordance with the Act and create an Internal Complaint Committee.
- It is the duty of the employer to create awareness through workshops for employees to keep them informed of the policy of sexual harassment and its consequences. Employers also need to conduct orientation programmes for their Internal Complaint Committees to give them the training to handle the issues effectively.
- An employer is obliged to provide essential facilities while dealing with complaints and during inquiry to the internal Complaint Committee or Local Committee.
- The onus is on the employer to arrange the attendance of both respondents and the witness for the inquiry.
- The employer needs to provide all the necessary details that are important to the complaint and conduct an inquiry with the Internal Complaint Committee.
- The aggrieved woman has every right to file a police complaint under the Penal Provisions of the Indian Penal Code even if the offender is not an employee of the company, but the incident took place in the office or at the workplace. It is the duty of an employer to assist her in filing a complaint against the offender.
- Add sexual harassment as a form of misconduct to the service rules and the procedures for initiating action in the event of a complaint.
- Internal Complaint Committee reporting should be on time.
- Chapter II, section 4, mandates an employer to constitute an Internal Complaint Committee.
- A detailed process has been laid to appoint a Presiding Officer in the Internal Complaint Committee.
- Section 4(4) has made provision for the appointment of an external member to the Internal Complaint Committee. This builds trust in fair treatment and confidence in getting justice.
- Section 5 of the Act has provisions for the removal of the members of the Internal Complaint Committee in the event they contravene the provisions of the act, any inquiry pending related to any offence in accordance with the law, pending disciplinary proceedings, and abuse of the position.
- Chapter VIII section 26 has provisions of penalty on the employer for not constituting the Internal Complaint Committee in accordance with the provision of the law.
- First-time offenders will be penalised for the sum up to fifty thousand only.
- The second time, the punishment is twice the amount of the first default.
- The third time, offence will lead to revocation of licence, cancellation of registration or non-renewal of contract or license to carry trade or business.
- Chapter III deals with the issues where an employer is a small-sized organisation or an employer of a domestic worker, and it is unfeasible or impossible to have an Internal Complaint Committee constituted. Therefore, enlarging the scope of the act to protect women engaged in unregulated sectors is therefore necessary.
- Section 6 of the Act elaborates on the constitution of the Local Committee and its jurisdiction to accept complaints.
- Section 7 deals with the selection of members, qualification for being a member of the Local Committee, and other terms and conditions imposed on the Local Committee. Since the appropriate government, as defined in section 2 (b), is responsible for the constitution of the Local Committee, the presiding officer is held by a woman of repute from a social work background that is committed to the welfare of women. Working women of the district, taluka and municipality are nominated to be members of the committee. Subsection (c) has provision to appoint one woman from an NGO that specifically works in the area of sexual harassment in the workplace, a woman from the reserved class, and any member preferred with legal knowledge.
Systematic complaint handling mechanism
- Chapter IV provides the detailed system and an approach for handling complaints from the aggrieved woman.
- Section 9 has a mode of complaint stated as writing, and if an aggrieved woman is unable to make a complaint in writing, then the Internal Complaint Committee or the Local Committee Presiding Officer or a female Member should make the complaint within three months from the last instance.
- The section further enables the legal heir in case of death, or any other person, to make a complaint on behalf of the aggrieved woman in case she is physically and mentally unable to file a complaint.
- Section 10 is a unique provision that enables the Internal Complaint committee or local committee to initiate the conciliation process before starting the inquiry with the consent of the aggrieved woman.
- The settlement under conciliation is non-monetary in nature.
- In the event that the parties reach an agreement through conciliation, the Internal Complaints Committee or the Local Committee records the details of the agreement and forwards them to the employer in the case of an organisation or to the District Officer in the case of an unorganised sector employer so that the appropriate actions can be taken based on the settlement report.
- After settlement through conciliation, the Internal Complaint Committee or Local Committee gives a copy of the settlement letter to both parties to the complaint. The settlement puts an end to complaints before the start of an inquiry.
- Section 11 of the Act details the Internal Complaint Committee or Local Committee’s examination process of the complaint. In the case of a large organisation, the inquiry is conducted in accordance with the service rules of misconduct and the punishment for the same is as described in the service rules of the organisation. However, in the case of non-organised or small-sized organisations that do not have service rules for inquiry and punishment, then the Local Committee has to forward the complaint to the Police within seven days of receiving it. The police shall register a case under section 509 of the Indian Penal Code or any other law in force at the time of the complaint.
- A police complaint is also made when the respondent fails to keep the terms of the settlement agreement.
- When both parties are employees of the organisation, they are given copies of the report made by the Internal Complaint Committee. The law of natural justice is upheld and both parties are given the opportunity to represent their case against the report made by the Internal Complaint Committee.
- Upon conviction under section 509 of the Indian Penal Code, the convicted party is ordered to pay a fine. The details of the compensation are described in section 15 of the PoSH act.
- The Internal Complaint Committee or a local committee has the same power as the civil court to try the suit.
- Section 15 elaborates the basis on which an aggrieved woman is entitled to compensation. It includes pain, as well as mental and emotional trauma caused due to sexual harassment. Negative impact on her career, missed opportunities. Money spent on medical and psychiatric treatments. The court considers the economic status of the respondent before ordering the compensation. The payment of compensation can be either in a lump sum or in instalments.
- Chapter V has a detailed process of examination of complaints.
- Section 12 deals with the responsibility of the employer during the pending investigation. The employer can transfer either party to a different workplace or can send the woman on leave for up to three months. The leaves are treated as additional leaves. Or the employer can grant any recommended relief by the Internal Complaint Committee and send the report of implementation to the committee.
- Section 13 of the act has the process of making the inquiry report within 10 days from the end of the inquiry and making it available to both the parties to the complaint.
- If the report finds the respondent is not guilty then they shall record a remark as no action is required.
- If the respondent is guilty of the act and works in an organisation then the action will be taken according to the service rule on misconduct and in cases with no service rule in accordance with prescribed law.
- If the employer is unable to deduct the salary under the service rule for misconduct to compensate the aggrieved woman then order for recovery of a sum is sent to the District office to collect it as land revenue arrears.
- The employer or the District officer has to take action within sixty days of receiving the recommendation from the Internal Complaint Committee or local committee.
- The policy is made to provide a safe workplace for women, however, misuse of the provision is dealt with sternly and punishment is listed under Section 14 of the Act. The woman will be punished according to the service rules of misconduct or in the absence of service rule the provisions of applicable law.
- The policy also upheld the right to privacy of the parties to the complaint under section 16 of the act. The identity of the woman is never revealed and the details of the inquiry and its outcome is not to be published in public or given under the Right to Information Act (2005). Only the information on the justice received can be reported without disclosing the identity of the victim. Section 17 imposes a penalty for non-compliance with section 16 of the act.
- Section 18 provides a process for appeal either to the court or to the tribunal within 90 days from the receipt of the recommendation in case of contravention of sections 14 and 17, not taking action as per the recommendation.
Positive change in society and the workplace
The Actis a two-edged sword. The positive side of it is that it gives assurance to a woman at work that she is being heard and there is a law to punish the offender. However, the negative side of it is that it is not a gender-neutral policy. The misuse of the special law against male employees for personal vendetta will defeat the aim of the policy. Though to deal with false allegations the act has made provisions, however, the mental trauma going through the process of inquiry is daunting and affects the overall well-being of a male employee. Such allegations affect the reputation of a man in his peers and society at large.
The Vishakha Vs State of Rajasthan laid the foundation stone of the PoSH act. It was for the first time the Supreme Court defined the sexual harassment and forms of sexual harassment at workplace and recognised that it violates the fundamental rights of a woman under Articles 14, 15, 19 and 21.
Supreme Court framed a detailed guideline to prevent sexual harassment of women at the workplace and made it mandatory for the employer to implement it.
In the case of Medha Kotwal Lele & Ors V. Union of India and Ors, a letter from Medha Kotwal was converted into a writ petition which highlighted the ineffective implementation of Vishakha Guidelines. The Supreme Court ordered the implementation and respect of the Vishakha Guidelines in both letter and spirit. It also allowed the aggrieved person to approach the High Court in case of non-compliance with Vishakha Guidelines.
In Seema Lepcha vs. State of Sikkim & Ors , the Supreme Court gave direction to State on publication of the guidelines through newspaper, television, and through Legal service Authority and Social welfare of Sikkim
The Supreme Court in the case of Apparel Export Promotion Council v. A.K Chopra dismissed the senior officer for being guilty of sexual harassment and expanded the definition of sexual harassment stating that physical contact is not essential for sexual harassment.
In the case of Anita Suresh vs Union of India & Others, the Supreme Court dismissed the petition with a cost of fifty thousand on the petitioner for misuse of the provisions of the law and also directed the respondent to initiate appropriate action against the petitioner for filing a false complaint.
There is not a field that women have not conquered. Women are leaders in the fields of medicine and the media, space and marine, law and legislation, technology, and teaching, and in general, everything women have been continuously excelling in. Since time immemorial, women have been subjected to cruelty at the hands of the patriarchal society. In ancient times, this cruelty was limited to the domestic life of a woman, now in modern times, both domestically and professionally, they face many challenges. Though they are strong enough to lead and fight, being subjected to sexual harassment for being a woman is one of the gravest issues, as it deters women from aspiring to achieve greater heights in any profession.
Thus, through the judgements, we see that the provision is not a one-sided policy protecting women only and penalising men. However, in the judgement of Anita Suresh vs Union of India & Others, the Supreme Court has balanced the prejudice based on gender.
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