This article is written by Anita Bhaktwani, pursuing a Certificate Course in Prevention of Sexual Harassment at the Workplace from LawSikho.com.

Introduction

Sexual harassment at the workplace is a widely known as a prevalent evil, faced by working women all over the world.  The development of our country has also resulted in women stepping out of their protected house environment to face challenges of managing a career, which has in turn resulted in an increase in the proportion of working women in all spheres of life. However, this also means that there are newer challenges women now have to deal with at their workplace. The current economic environment and workplace set up witnesses an increasing level of interaction among all genders, thereby requiring setting up of norms and rules to safeguard the women at large. Though on a wide scale, women do not report on it, out of fear of facing social ostracism, loss of jobs, etc., there are a number of women who have faced incidents of Sexual harassment, which therefore warranted a strong law to curb Acts of sexual harassment. Sexual harassment is a human right violation affecting Article 14, 19 (1) (g) and 21 of Constitution of India. In other words, sexual harassment at workplace can in other words be termed as extended act of violence in working life causing discrimination, exploitation and violating right to life and livelihood of women. The “Me too” Movement highlighted this issue of sexual harassment.

Who are victims of sexual harassment and what are the statutory provisions that provide safeguards?

Sexual Harassment can occur to anybody whether women, men, workers in higher managerial position or workers in informal economy. Some groups are at higher risk particularly girls and boys in child labour, forced and bonded labourers, migrant workers, domestic workers and health service workers. Factors such as job precariousness, young age and inexperience can increase vulnerability to Sexual harassment.

In India, Sexual harassment is dealt with by various enactments:

1. Constitution of India: Article 14, 16, 19 & 21 provide for non-discrimination, equality, work/profession rights and life of dignity.
2. Indian Penal Code: Section 354 (Now A,B,C, & D), 376 (Now A, B, C, & D) &  509 provide for penalties on outrage of modesty of woman and rape. The amended sections now engulf larger incidents and also protect women in custody, care and control of various persons. 
3. The POCSO Act was legislated with a view to protect minor victims.
4. Indecent Representation of Women’s Act.

Understanding the evolution of safeguards for women

Women in India are recognized and granted protection. There are various legislations provided for in this regard. However, notwithstanding these avenues, working women did not practically receive the protection granted under the Constitution and other legislations and thus a need for special rules to enforce their rights existed. Hence, POSH was enacted.

It was only in the year 1997, that In India, Public Interest Litigation was filed in the Supreme Court by various NGOs and Social Activists, for enforcement of fundamental rights of working women, after the brutal gangrape of Bhanwari Devi, an employee of the Women Development Department under the Government of Rajasthan, who as a part of her official work was involved in prevention of child marriage, As an outcome of the landmark judgement reported in 1997 (6) SCC 241, popularly known as Vishaka Judgement, the Act namely Prevention of Sexual harassment of women at workplace (shortly referred as POSH”) was enacted to provide mechanism to redress grievances pertaining to the workplace Sexual Harassment and enforce right to gender equality of working women. 

The Vishakha judgement 

In 1992, Bhanwari Devi, a Dalit woman, an employee of the Women Development Department under the Government of Rajasthan was gangraped. This highlighted the extent of Sexual harassment incidents at Workplace in India. It struck a chord with the nation and revealed the hazards working women face in the workplace. The Supreme Court of India, invoking its powers under Article 32 of the Constitution of India, framed guidelines and issued directions to the Union of India to legislate to curb and fight against workplace sexual harassment. The guidelines were framed with an intent to provide for redressal and grievance mechanism against sexual harassment at workplace. 

Vishaka guidelines drew from the following international conventions: 

1. Convention on Elimination of All forms of discrimination against women (CEDAW), India, Aspect of equality of women in the workplace, gender-specific violence and unwelcome sexually determined behaviour were taken from it and included in the  POSH Act.
2. International Labour Convention on Discrimination (Employment & Occupation, Convention (No. CIII). India ratified this document on 03.06.1960. Through this Convention, India has an obligation to prohibit & prevent any gender-based discrimination at workplace.

Highlights of the Vishaka judgement can be summarised as: 

1. Providing definition of Sexual Harassment. 
2. Shifting accountability from individuals to institutions.
3. Prioritizing prevention.
4. Provision of an innovative redressal mechanism.

After the Vishaka guidelines, the Supreme Court in its Judgement dated: 20/01/1999, passed in Apparel Export Promotion Council v/s A.K.Chopra,  referring to Vishaka Judgemnt, CEDAW as well as ILO Seminar at Manila, as well as fundamental rights guaranteed under the Constitution opined “ There is no gainsaying that each incident of Sexual harassment, at place of work, results in violation of fundamental right to gender equality and right to life and liberty”.  Supreme Court upheld the dismissal of superior officer for sexual harassment. The Supreme Court further broadened the scope of definition of Sexual harassment to state that physical contact is not always essential for an act amounting to workplace sexual harassment, which is seen as an unwelcome Act.

In the Judgement delivered on 19/10/2012 in Medha Kotwal Lele and others, three Judge Bench gave further directions as:

1. State & Union Authorities were directed to make adequate and appropriate amendments to their respective Civil Services Conduct Rules, within two months also provided that report of the Complaint Committee shall be deemed to be an Inquiry Report in disciplinary action under such Civil Services Conduct Rules.
2. State and Union territory, who had not carried out amendments in the Industrial Employment (Standing Order) Rules, were directed to do so within two months, on the same lines.
3. State and Union Territory organisations were directed to form, within two months, an adequate number of Complaint Committees, and ensure their functioning at the Taluka level, District Level and State Level. Complaints Committee mandatorily to be led by a woman and should consist of independent members. 
4. State and Union Territory as well public/ private sector/ undertaking/ organisations shall ensure full implementation of Vishaka guidelines and ensure that if the harasser is found guilty, the victim is not forced to work with /under him, as far as possible transfer the harasser. Provision be made that harassment and intimidation of the complainant and the witnesses shall be met with severe disciplinary action.
5. Directions to Bar Council of India, Medical Council of India, Council of Architecture, etc. to follow Vishaka Guidelines. 
6. Also provided that in case of non-compliance of Vishaka Guidelines, the complainant can approach the respective High Courts.

The Nirbhaya case

In 2012, the unfortunate and heinous crime of gangrape, assault, torture on a 23-year-old physiotherapy intern in a moving bus in South Delhi, commonly known as Nirbhaya case occurred, leading to widespread demonstrations and protests all over the  Country. It also started changes in law relating to violence against women, accelerating the overdue enactment of legislation as regards the workplace sexual harassment. 

It was after a long lapse that is in the year 2013, the Government of India enacted the POSH  Act, consistent with Vishaka Guidelines, with effect from  9th December 2013. The Act  is legislated with an intent to safeguard women’s right to equality at workplace, protection from Sexual harassment through compliance with Prohibition, Prevention and Redressal. Tamil Nadu Prohibition of Sexual harassment of Women  Act, 2002, was in the year 2013 amended to include sexual harassment at  workplace as a punishable offence.  Prior to the POSH act, the remedy available was under Section 354 (outraging modesty of women) & 509 (Insulting modesty of women) under the Indian Penal Code. At the same time in the year 2013, Criminal law Amendment Act, 2013, added four new subsections to Section 354 including incidents of sexual harassment, attempt to disrobe, Enlists voyeurism and stalking within its ambit. Also Section 376 of IPC was amended to bring within its ambit women in custody, care and control of various persons.

In 2017, Maneka Gandhi, Union Minister for Women and Child Development launched “SHE-BOX”, which is on-line Portal whereby women working in government/private organisation can lodge complaints of Sexual harassment.

Ministry of Corporate Affairs vide notification dated: 31.07.2018, has amended the Companies (Accounts) Rules, 2014. The Amendment makes it mandatory for all private companies to make disclosure of compliance under POSH  Act, 2013, through Annual Board Report. As per the amended law, every company will now have to submit a statement in their Annual Board Report that the Company has now complied with provisions relating to ICC under POSH. Non-Compliance with Section 134 (under which rules made), attracts heavy fines upto Rupees Twenty five lakhs, under Companies Act, 2013, which could lead to imprisonment as well. 

The highlights of the POSH Act, which is a women-centric Act, provides for prevention, protection and redressal mechanism can further be enumerated as:

1. Provision of trained, skilled, competent complaint committee. 
2. Provides for a time bound process.
3. Ensures information Confidentiality.
4. Assurance of non-retaliation.
5. Counselling and other enabling support. 
6. Assistance for Criminal Complaint. 

The effect of legislation on POSH is: 

1. Prevention of Hostile Work Environment. 
2. Understanding Unwelcome Behaviour. (In understanding whether behaviour/ Act complained of is unwelcome, which is the factors to be weighed and considered from viewpoint of the complainant)
3. Quid Pro Quo Harassment.

Key features/ provisions of the POSH Act

The various definitions under Section 2 of POSH Act, provides for wide and exhaustive coverage, especially definition of aggrieved woman, employer, sexual harassment, and workplace.

• Aggrieved woman: the definition of complainant/ aggrieved woman means and includes: 
• Woman of any age, subject to sexual harassment, whether working or not, including student, woman visiting a workplace or working. 
• Working woman includes: 

1. Domestic Worker; 
2. Regular/temporary/ ad-hoc/ Daily wages employee; 
3. Working on remuneration/ voluntary basis/ otherwise iv. Employed directly/ through agent;
4.  Includes contract worker/Probationer/ Trainee/ Apprentice/ called by any other name; 
5. working with/ without knowledge of the Principal; 
6. On express/ Implied terms.

• Understanding “appropriate government”

1. Central Government, where the workplace established, owned, controlled or wholly or substantially financed by funds directly or indirectly by the Central Government. 
2. State Government, where the workplace established, owned, controlled or wholly or substantially financed by funds directly or indirectly where the State Government; 

• What constitutes a “workplace”?

A workplace is defined as “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.” 

The definition of workplace covers both the organised and unorganised sectors.

Workplace under the Act has a broader scope and includes any place visited by the employee in relation to or in the course of employment, including conveyances, provided by the employer for taking such a journey and is inclusive of all organised as well as unorganised sector, government organisation, private organisation, dwelling houses, individual enterprises, etc. Now accepted that the workplace is any place where the relation between employer and employee exists, going beyond the physical boundaries of primary workplace or office building. 

In other words, the workplace includes all government and private entities running on a commercial basis. The examples of workplace could be  Hospitals/ Nursing Homes, Educational Institutions, Companies. Enterprises, Government Undertakings, Corporate Offices, Sports Institutes, Trusts, Societies, etc.

• Who is an “employer”?  

An employer means and includes: 

1. In case of Government/ local bodies it shall be the officer specified or head of the department/ organization/  undertaking/ establishment/  enterprise/ institution/ office, branch or unit of the Appropriate Government or local authority.
2. Person responsible for the management, supervision and control of a designated workplace. 
3. In the case of a domestic worker: One who employs her or benefits from her work.

• Who is an “employee”?

An employee means a person employed at a workplace for any work and may be on:

1. 1. 1. regular, temporary, ad hoc or daily wage basis, 
      2. either directly or through an agent, including a contractor, 
      3. with or, without the knowledge of the principal employer, 
      4. whether for remuneration or not, or 
      5. working on a voluntary basis or otherwise, 
      6. whether the terms of employment are express or implied, 
      7. includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.

• Sexual harassment: includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:

1. 1. 1. physical contact and advances; or
      2. a demand or request for sexual favours; or
      3. making sexually coloured remarks; or
      4. showing pornography; or
      5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

Sexual harassment means and includes sexually suggestive (loaded) comments, remarks, jokes, letters, phone calls, emails, gestures, exhibition of pornography, lurid stares, physical contacts, stalking, sound/display directory in nature at the purpose/effect of interference with individual’s performance or of creating an intimidating hostile or oppressive environment.

Sexual harassment can thus be classified into two types: 

Quid Pro Quo: Which means and includes sexual favours/ advances in exchange for or as term/ precondition of employment and refusal met with retaliation such as demotion,  suspension, reduction of salary, false appraisal, etc.

For example when the Manager of the Company invites a female employee to his house for a night suggesting a promotion in return to her. One day, finding her alone, tries to make physical advances, when the employee restrains him saying she would complain against his behaviour, he threatens her of firing her from her job.

Hostile work environment: which includes uninvited/unwelcome conducts/ behaviour whether physical/ verbal/ Non-Verbal/ Visual forces, making the workplace uncomfortable.

When a supervisor initially appreciates the work of Ms. MMM. One day on pretext of work, calls her to his cabin, makes verbal advances and sexually coloured remarks. On being categorically rebuffed by her, she openly insults and rebukes her, criticises her work, etc. in front of other colleagues.

The key elements of workplace sexual harassment are UNWELCOME, SEXUAL in nature, SUBJECTIVE experience, IMPACT and not intent that matters and often occurs in matrix of POWER.

Unwelcome would mean and include – making the victim feel bad, powerless, unwanted,  invasive, demeaning, cause anger/ sadness/ negative self-esteem.

Impact would be seen when there is decreased work performance, Increased absenteeism, Retaliation from Respondent/ colleague, subjected to gossip/ scrutiny at workplace, publicly sexualized/ ostracized, Job/ Career consequences, depression, anxiety, panic, stress, angry/ violent with perpetrator, etc. 

Under the Act, it is the duty of the employer to deter the commission of such acts and provide a procedure for resolution or settlement or prosecution of acts of Sexual harassment. Section 4, 19, and 22 are the relevant sections 

• Section 4 of POSH Act mandates the employer to constitute Internal Complaints Committee and also details the manner of constitution of the Committee, specifying therein the qualifications/requisitions of the Committee members being a Woman Presiding officer, two employee members and one external member.
• Section 19 of the POSH Act provides for  the employer’s duties and obligations  which reads as hereunder:

Duties of employer

It shall be the duty of every employer, as provided in Section 19 of the Act:

(a) To provide a safe working environment at the workplace even from third party visiting the workplace; 

(b) To display conspicuously in the workplace, the penal consequences of sexual harassments;

(c) To display order constituting, the Internal Complaints Committee;

(d) To organise for employees at regular intervals,  workshops and awareness programmes for sensitization; 

(e) To organize orientation programmes for the members of the Internal Committee in the manner as may be prescribed; 

(f) For dealing with the complaint and conducting an inquiry, to provide necessary facilities to the Internal Committee or the Local Committee, as the case may be;

(g) Ensure and assist in securing the attendance of respondent and witnesses before the Internal Complaint Committee or the Local Complaint Committee;

(h) To make available all such information to the  Complaint Committee; 

(i) To provide assistance to the woman if she so chooses to file a complaint/ initiate action under Indian Penal Code  in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the erring employee or any other perpetrator;

(j) Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct; 

(k) Monitor the timely submission of reports by the Internal Committee. 

• Section 22 of the POSH Act provides for the information to be furnished in the annual report. 
• Section 6 & 7 provide for the constitution and jurisdiction, Composition, terms and other conditions of  Local Complaints Committee.
• Section 9 to 11 provides for the manner of filing complaint, its requisitions, limitations, etc, as well as conciliation and inquiry into the complaint.
• Section 12 to 18 then provides for the entire inquiry process to be adopted,  also lays down consequences/ penalty of false complaints and provisions of appeal.

The act also provides for implementation of the reliefs and recommendations as well as appropriate monitoring of the entire process. The provision of penalizing any leak of information ensures confidentiality. The provision of dissemination of information as regards ICC as well as non-tolerance of sexual harassment at workplace is a deterrent as well as guidance for filing complaint.

The act also provides for punishment for false and malicious complaints as well as false evidence.

The said provisions, which are elaborately laid down to cover all possible facets, are enacted with an intent to:

1. Ensure safety and well being of women at the workplace.
2. Ensure elimination of discrimination and biased attitude towards women as workplace.
3. Increase women participation in new industry verticals.
4. Ensure increase in women participation in existing industry verticals preferred by women.
5. Ensure growth and development of existing-working women.
6. Increase women participation and contribution towards overall economic development.

Employers as organisations have now been held responsible for failure to implement POSH and a healthy working environment. The only defence that is available to the employer as an organisation/ management of an organisation is proactive compliance with POSH. The employer has to implement the mandatory provisions and abide by his duties as provided under the Act in letter and spirit and not as a mere formality. This proactive compliance would range from real and frequent training and induction of Internal Committee and employer treating Sexual harassment as misconduct  and appointing a trained, skilled, expert members to the Internal Complaints Committee, who can with expertise and maturity handle all the issues/complaints in respect of sexual harassment at workplace. 

Conclusion 

With the development of the country, it is but natural for the organisations and workplaces to stay abreast with the modern development and encourage work environment solely by merit and rid all form of discrimination especially gender discrimination.  The enactment of POSH is an indication of legislation to show India’s Commitment to its citizen’s fundamental rights.

References 

1. http://www.legalservicesindia.com/article/1905/sexual-harassment-of-women-at-work.html
2. https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/
3. https://cis-india.org/about/policy-on-prohibition-of-sexual-harassment
4. https://www.indiatoday.in/india/story/sexual-harassment-at-workplace-1368055-2018-10-15

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