India has implemented the Protection of Women from Sexual Harassment at Workplace Act, 2013 (POSH Act 2013), with the aim of safeguarding women from sexual harassment. Indian women are now empowered to assert their rights and achieve independence in the workplace.
This Act aims to ensure a secure working environment for
women by establishing effective measures to prevent and address incidents of
sexual harassment.
An outline of the 2013 POSH Act
The
Indian government enacted the Protection of Women from Sexual Harassment Act,
2013 to ensure the safety and well-being of women in the Workplace,
specifically addressing issues of sexual harassment and abuse. This Act was
implemented to ensure that workplaces are free from sexual harassment and to
provide a safe and secure environment for women.
In
2013, the Government of India introduced the POSH Act to address the issue of
sexual harassment faced by women in the Workplace. This legislation seeks to
establish a secure and encouraging work environment for women while also
safeguarding against sexual harassment.
The
objective is to increase awareness regarding sexual harassment and guarantee
that individuals who have experienced it can access the necessary legal
remedies. The POSH Act 2013 also includes provisions for establishing Internal
Complaints Committees (ICCs) in organizations to address sexual harassment
complaints and promote a safe working environment for women employees.
The POSH Act signifies remarkable progress in ensuring
that women in India have access to a safe and respectable working environment.
Reason for creation of POSH act-
Bhanwari
Devi, a social worker for the Rajasthan government's Women's Development
Project, was viciously assaulted by five men in 1992 when she attempted to
prevent her one-year-old daughter's marriage. Activist groups raised concerns
about the lack of explicit legislation addressing gender equality and sexual
harassment in the workplace throughout the legal proceedings, and the Supreme
Court emphasized this point. In 1997, the Court accepted the Vishakha
Guidelines to keep things going until more official legislation was
implemented. All workplaces were expected to follow these laws, which carried
strict legal weight. Article 15, among other provisions of the Constitution,
outlaws discrimination based on religion, race, caste, gender, and place of
birth; the Court's authority stems from this clause. The study addressed the
Indian ratification of the 1993 Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), its General Recommendations, and other
major international accords and standards.
The
Supreme Court's recent critique of the Act emphasizes the need for vigorous
enforcement. The Court's intervention and guidance for practical implementation
are not novel. As a result of the Vishakha Guidelines of 1997, the Court was
forced to intervene and issue additional orders several times. In 2000, 2003,
2004, 2006, and 2010, the National Commission for Women released new versions
of its Code of Workplace Conduct.
Krishna
Tirath, Minister for Women and Child Development 2007 introduced a bill to
protect women from sexual harassment in the workplace. Finally, it found its
way to Parliament and was altered. The new statute, the Sexual Harassment of
Women at Workplace (Prevention, Prohibition, and Redressal) Act, became effective
on December 9, 2013.
Under the PoSh Act, what are the definitions of an
employee, the Workplace, and sexual harassment?
The PoSH Act outlines what constitutes sexual harassment,
encompassing actions like physical contact, sexual advances, requests for
sexual favors, sexually suggestive remarks, displaying pornography, and any
other unwelcome behaviors of a sexual nature.
It also outlines five situations that could be considered
sexual harassment –
·
Implied or explicit
promise of preferential treatment in employment
·
Implied or direct
threat of detrimental treatment in employment
·
Implied or clear
threat about present or future employment status
·
Interference with
work or creating an intimidating, offensive, or hostile work environment, and
·
Humiliating
treatment is likely to affect health or safety.
According to the Act, an employee is defined not only
based on the company's regulations. Every female worker, regardless of their
employment status, has the right to address any instances of sexual harassment
in the Workplace.
The definition of 'workplace' has been broadened to
encompass various types of organizations in different sectors, including
non-traditional work environments like telecommuting and locations employees
visit for work purposes. This rule applies to all public and private sector
organizations across India.
What are the
rules that companies have to follow?
Employers with more than ten employees must establish an
Internal Complaints Committee (ICC) that female employees can contact to lodge
a formal sexual harassment complaint. The leadership should be female, with at
least two female employees and one additional employee. To avoid potential
influence from higher-ups, consider involving a third party, like an NGO worker
who has five years of experience and is knowledgeable about sexual harassment
issues. In addition, the Act requires each district in the country to establish
a local committee (LC) to address complaints from women employed in small firms
with fewer than ten employees and in the informal sector, such as domestic
workers, home-based workers, voluntary government social workers, and others.
Both organizations must carry out investigations
according to the POSH Act and adhere to the principles of natural justice
outlined in the Act's Rules. A woman needs to submit a written complaint to
either the internal or local complaints committee within three to six months of
the sexual harassment incident.
There are two methods by which the committee addresses
the matter:
·
By reaching an
agreement between the complainant and the respondent (excluding financial
settlements)
·
By launching an
investigation and implementing necessary measures accordingly.
At the end of the year, the employer must submit an
annual audit report to the district officer detailing the sexual harassment
complaints received and the corresponding actions taken. The employer must
organize regular workshops and awareness programs to educate employees about
the Act and conduct orientation and programs for ICC members. Failure to
establish an Internal Complaints Committee or comply with any other provision
may result in a fine of up to ₹50,000, with higher penalties for subsequent
violations.
What obstacles
are preventing the Act from being implemented?
In a recent ruling, the Supreme Court highlighted the
gaps in the Constitution of ICCs, referring to a newspaper article that
revealed 16 out of the 30 national sports federations in the country had yet to
form an ICC. The report was released during the wrestler's demonstration in
Delhi against the head of the Wrestling Federation of India (WFI) for alleged
incidents of sexual harassment. The ruling highlighted issues with the
composition of ICCs, noting insufficient members or missing required external
members. However, there are more implementation-related concerns regarding the
PoSH Act. Since its enactment, experts in the field, stakeholders, and former
members of such committees have raised several concerns with the legislation
and its implementation.
One issue raised is the Act's failure to adequately
tackle accountability, as it needs to identify the individuals responsible for
ensuring workplace compliance or liable for non-compliance. Advocate and human
rights activist Vrinda Grover believes that State governments should step up.
In 2019, the government informed Parliament that it does not keep centralized
records of women's workplace harassment cases.
Stakeholders highlight the challenge of women workers in
the informal sector accessing the legal system, given that over 80% of India's
female workforce is employed in this sector. Moreover, specialists have
observed that sexual harassment cases in workplaces are significantly
underreported in India for various reasons. The creators of the legislation
understood that resolving complaints within civil institutions (workplaces)
could be a more efficient way to support women, eliminating the need for them
to navigate the complex criminal justice system with its challenges in
accessibility and timeliness. Nevertheless, the ineffective operation and the
ambiguity in the regulations on how to carry out such investigations, along
with a lack of knowledge among female employees about these committees and whom
to contact in case of harassment, have only increased the obstacles to
accessing the justice system. A significant barrier for women filing complaints
is the power dynamics within organizations and the fear of facing professional
consequences.
When it comes to sexual harassment cases, solid evidence
may be hard to come by, but that doesn't always mean a crime hasn't been
committed. However, in several legal interventions, the courts have shown
hesitation in addressing this inherent tension and have instead placed more
emphasis on evidence. Women have faced consequences and lost their jobs.
According to regulations, investigations carried out by ICCs/LCs should adhere
to "natural justice" principles similar to those in the judiciary. However,
stakeholders and the Saksham Committee report (2010) have highlighted the need
for a unique due process for ICs, considering the specific nature of sexual
harassment as a form of gender discrimination that disproportionately impacts
women in patriarchal structures.
What are the
recent concerns and directions of the Supreme Court?
The Supreme Court Bench, with Justices Hima Kohli and
A.S. Bopanna, delivered a 62-page verdict on an appeal challenging a decision
made by the Bombay High Court on March 15, 2012. The appeal was filed by a Goa
University employee regarding his dismissal from service by a disciplinary
authority due to complaints of sexual harassment.
Experiencing such a terrible act (sexual harassment) not
only damages a woman's self-esteem but also affects her emotional, mental, and
physical well-being," stated the Court.
The N.H.R.C. has notified the Sports Ministry about the
lack of a committee for handling sexual harassment complaints.
Discussing the impact of PoSH, the Court emphasized the
importance of strict enforcement and a proactive approach from all involved
parties to ensure women's dignity and respect in the Workplace.
"If the
authorities/managements/employers cannot assure them a safe and secure
workplace, they will fear stepping out of their homes to make a dignified
living and exploit their talent and skills to the hilt," Justice Kohli
wrote in the judgment.
The Court instructed the Union, States, and UTs to
conduct a time-bound verification to ensure that Ministries, Departments,
government organizations, authorities, public sector undertakings,
institutions, bodies, etc., had established necessary committees under the Act.
These organizations have been instructed to make public the information about
their committees on their websites. They were asked to comply and submit
affidavits to the apex court within eight weeks.
