Prevention Of Sexual Harassment Act

Introduction

In this patriarchal society where women are dominated by men in every sphere of their lives, the women need to be protected. Although with globalization there have been changes in the workforce, which now sees the inclusion of women as well, yet in order to provide women with an environment where they can freely and properly enforce their right of equality, certain legislative force is needed. The right of equality includes the right to work freely, and this right can be enforced effectively only when safe working environment is made available to the women of our society.

Sexual harassment is an evil that plaques our society. It is violative of the fundamental right of women. It is an extremely dreadful violation of the basic human rights guaranteed to an individual in the society. It not only violates the women’s right to equality under the Article 14 and 15 of the constitution but also the right to life which includes the right to a dignified life under Article 21 of the constitution of our country. Sexual harassment creates an environment which is full with insecurity as well as hostility. The women have to go through emotional and physical suffering. It hinders the productivity of the women at workplace and acts as an obstacle for women in this competitive world. Not only does such assault interfere with the professional life of the women by grossly affecting their performance in the workplace but also acts as a detriment to the social as well as the economic growth of women.

With a view to ensure that the rights of women are protected, it was in the year 2013, that. The Ministry of Women and Child Welfare came up with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and the Rules which are together called the Posh Laws.[1] These laws were passed and enforced so that all the workplaces including firms, companies, shops, restaurants, and others become more inclusive and safe for women workers. This law was passed to provide women protection against sexual assault at work places and also a means of redressal of sexual harassment complaints.

Progression Of Sexual Harassment Laws

There has been huge outcry in the country with regards to providing women with equal opportunities and same treatment as is meted towards the men.  This equality and prevention of gender-based discrimination has been emphasised in the constitution as well. All the chapters including the Preamble , the Fundamental rights , the Directive principles of the State Policy, provide for equality between the two genders.[2] Coming out of the patriarchal views of not allowing females in the family to go out and work, women are now encouraged to work, the belief that men are the only bread winners of a family no longer stands true. But with this opportunity to go out and work comes the apprehension of sexual harassment at the place of employment. This dread of sexual assault was only taken into justification much later by the Supreme Court in the “momentous decree of Vishaka v. State of Rajasthan” [3].

In this salient case, the court released guidelines which instructed every employer to compulsorily have, some sort of mechanism by way of which the complains pertaining to sexual harassment at their respective workplaces could be remedied, till the time there was a precise law observing the same. Further, the court also ordered that a law should be enacted so that the sexual assault at the places of work can be avoided and such complains could be righted. However, the Posh Act came into cogency only after approximately sixteen years of the passing of this order.

Vishaka Judgement

“It was in 1992 that Bhanwari Devi, who was a Dalit lady, stood up critical of the ubiquitous jeopardy of child marriage in the community. She was labouring with the rural development agenda of the Rajasthan Government. On raising her voice against this ill, she was viciously gangraped.”[4] This took all the women activists into shock. It showcased how unsafe the work environment is for women. A public interest litigation was filed under the name of Vishaka, by women lawyers and activists who came together and necessitated uprightness.

Following the pleadings, the Court voiced how the laws vis-à-vis safety at workplace are so inadequate. The Court accredited that sexual harassment is the disruption of a personage’s fundamental right. Thus, the Vishakha Guidelines were outlined. The Court based the articulation of the Vishakha directives on the “Convention on Elimination of All Forms of Discrimination against Women” [5].  This precept was espoused by the General Assembly in 1979. India is a signatory as well as has rectified the concord. These directives that were stemmed under Article 32 of the Constitution were to be conformed stringently as law, by the private alongside the government sectors till the definite legislation came into being.

“As per the Vishakha avowals, sexual harassment would include any comportment which either unswervingly or by inference, would involve –

• If a person presses for or appeals for sexual indulgences
• If there is displaying of pornography
• If there are bodily interaction and advances
• If there are sexually influenced asides
• Some other unsolicited physical, verbalised or nonverbalised demeanour of sexual temperament.”[6]

Some Discernments Post-Vishakha

• AEPC v. CHOPRA

This verdict facilitated in effecting a nation-wide discussion on the issue of workplace sexual harassment and it aided in bringing out the talk on a topic that was not deliberated upon for such a long period. This was a case wherein the “Supreme court had endorsed the recommendations that were laid down in the Vishakha verdict and found a senior officer at the AEPC guilty of sexually harassing a female employee in the office”[7]. This case was special since the Court explicitly itemised that harassment not only comprises physical interaction but also such deportment which may not be bodily yet sexually disguised.

• KOTWAL V. UOI

“A number of discrete sexual harassment occurrences were divulged by a letter of Dr. Kotwal. In this letter he enumerated how the decrees that were laid down in the Vishakha case were not being followed. The Supreme Court had to take the same into cognizance and there were instructions passed for the states to file an affidavit by way of which they had to enumerate what steps were the respective states taking so as to effect the Vishakha rules. Since the court was not appeased and it felt that the measures were straggled, it ordered the states to take efficient actions so that apposite enactment of the guidelines is warranted. Further, it was also stated that in case of non- defiance with the orders, it would be the discretion of the distressed party to file a case in the High Court.”[8]

While these are the cases that helped in the formulation of Posh act in India, the first case that was decided by the USA SC in this regard was Meritor vs. Vinison[9] in the year 1986. US government adopted the Civils Rights Act to effectively address the issue of sexual harassment and passed some significant landmark judgements in this field.[10]

Posh Act – Fundamental Provisos

Under this segment various sections of the Act have been discussed in detail so that proper understanding of the act can be attained.

Applicability and Scope

Jurisdiction of The Act – POSH Act is applicable in the entire country.[11] It can encompass all the organisations that have a workforce of ten or more people regardless of where is the location of that company or what is the nature of that business.

Aggrieved Woman – According to the act, “an aggrieved women” can be any women who may have been subjected to sexual harassment.[12] Age is not included as a criterion to judge who can be an aggrieved woman. It is not mandatory for the woman to be employed in order to be called an aggrieved under this act. What is necessary under Posh is that the “sexual harassment should have occurred at the workplace.”[13] only such a woman can be allowed to take the recourse to this act.

Moreover, POSH is not a gender-neutral act. It is rather gender sensitive. only females are allowed to get a remedy through this act. Men cannot secure their interests by way of this legislation.

Bodies Covered – Application of this act can range to all organised and unorganised sectors. It is applicable to the governmental, non-governmental, public or private organizations related to the work that may be commercial, educational, vocational, industrial, entertainment, financial, hospitals, sports institutions, and also a dwelling place or a house.[14]

What Amounts To Sexual Harassment?

The definition of “sexual harassment” in the POSH Act is in line with the definition given by the Supreme Court. It is defined as any unwelcome behaviour that it sexually coloured, by direct nature or indirect form, such as 1) physical conduct or advances, 2) demand for favours that are sexual in nature, 3) sexually coloured statements, 4) display of pornography, and 5) any other bearing which is of undesirable nature. [15]

The following circumstances may amount to sexual harassment if they occur in relation to some other behaviour that may amount to sexual harassment –

• Promise, which can be either implicit or explicit, for preferential treatment in office or employment.
• Direct or indirect threat of disadvantageous treatment in employment.
• Threat about employment status, that may be direct or implicit.
• Interfering with work or creating an intimidating work employment or,
• Demeaning treatment that is will affect the female employee’s security or health.[16]

This shows us that the definition of “sexual harassment” is very broad in nature to include all kinds of both implied or explicit behaviour that may involve bodily, verbal, or non- verbal abuse. The main thing is that the conduct must be unwelcome and unwanted by the receiver. It includes “quid pro quo” sexual harassment which means a type of sexual harassment blackmail. In this type of blackmail the harasser, who is usually a person in power, puts pressure on the women employee for sexual favours in exchange for advancements in the workplace or in the form of threats or detriments in the workplace. The definition has been made to include any form of behaviour that would create hostile work environment. An instance of such a behaviour would be when a female employee is meted with undesirable remarks about her body type, making her embarrassed and resulting in difficulty for her to work.

Not all forms of sexual harassment are similar to each other. While some forms like the sexual assault, are so fundamentally offensive, that only one such is incident is enough for it to be included within the definition of sexual harassment but on the other hand there are offenses which may not be easily distinguishable. The responsibility to decide whether the harassment caused to the victim was sufficient to be included in the offence of sexual harassment would lie on the internal committee because not always is there a clear differentiating way to decide what kind of behaviour would be included in the act that can cause hostile working conditions. Further, it would also depend on the facts and the circumstances in which the conduct occurred.

In a case of 2010[17], the Delhi High Court endorsed the view that sexual harassment is a subjective experience and for that reason a better and complete understanding of the victim’s view requires understanding of the varied outlook of women and men. Behaviour that may be considered unobjectionable by men may be enough to offend many women. According to the opinion of men, some forms of sexual harassment are viewed as innocuous ways of interaction in society that may be offensive to only over-sensitive women. Most sexual harassment is seen as relatively harmless enjoyment by the male view. The high court also said that men, who are infrequently victims of sexual harassment, may see such behaviour in a vacuum, lacking a complete understanding of the societal setup or the underlying danger of violence that a woman may perceive in such situation.

Employee

The Posh Act has defined the term ‘employee’, in a wide sense to include all employees, whether regular, temporary, or the ad hoc ones. It also includes persons who are working on a daily wage basis, whether working directly or through agents. Additionally, probationers, internes, contract workhands, co-workers and trainees are all included. These will be included even if the principle employer is not in knowledge, or even if they are not for remuneration, or if working on voluntary basis or not, and also when the terms of the employment are express or implied.[18]

Workplace

Originally, the Vishaka Guidelines were limited to the conventional office set up only, but then it was duly recognised that harassment may not necessarily restrict to such set ups and may spread to places other than the primary workplace. Thus, the concept of “extended workplace” was also introduced. This would mean that the guidelines would be applied to any place that an employee visits in relation to the employment and also the transportation that is provided by the employer for the purpose of commuting to and from the workplace.[19]

In Saurabh Kumar case [20], the defendant who was accused of sexually harassing a senior female officer took the defence that the charges cannot apply because the alleged wrongdoing was conducted at the official mess in which the women was residing and not in the office. It was also contended that since the defendant was junior to the women, no favour could be extracted by him. However, the high court of Delhi contented that this was a totally wrong understanding of the guidelines. The guidelines have been framed with a view to provide protection to working women from sexual harassment and the harassers are duly punished. To ensure that women get justice, and strict action is taken, the term “workplace” cannot be taken to be understood in the narrow concept of “office” only. In this competitive and technological world of today, where the business is being conducted over the internet, while sitting at other corner of the world, workplace cannot be restricted to just the office. Suppose, a CEO is working from his home and he sexually harasses his personal assistant, then he cannot claim the defence that the guidelines cannot be followed because this was not the workplace, but the place of residence. The High Court determined that the following would be taken into consideration to decide whether the act had taken place in the “workplace” –

• Closeness from the workplace,
• Management’s power over the place where the working woman resides; and,
• The residence should be an extension or adjoining part of workplace.

Therefore, finally the officer’s mess where the women was sexually harassed would come under the definition of ‘workplace’.

Complains Committee

The POSH Act has mandated the formation of a grievance redressal forum and this is a very important part of the provisions.

INTERNAL COMMITTEE – The Posh Act requires that each office of an organisation with 10 or more employees, should set up an internal complains committee to hear and redress the complains pertaining to sexual harassment. If there is failure to do so, then fine would be imposed on the particular organisation.[21]

The IC should constitute of a Presiding officer, who is a women employee at a senior position. There should not be less than two members from within the employees. These should be committed to the cause of social or women welfare. There must be an external member who is committed to women well-being issues or has experience in dealing with Sexual harassment cases.[22]

LOCAL COMMITTEE – At the district level, a local committee needs to be set up. The obligation to set up this committee is of the government. The function of this body is to look into complains from such sectors which are unorganised or where there has been no formation of the IC or where the complaint is against the employer himself. The composition is of LC should be a chairperson, who is an eminent woman, committed to women welfare, one nominated local woman, and two NGO members, of which at least one should be a woman or an organisation in the field of women welfare. one of the NGO members must have background in law and at least one should be a woman belonging to scheduled caste/tribe. LC is significantly importance in cases involving harassment of domestic workers, or harassment by employer himself, or where the complaint is against some third party.

POWERS –

The IC/LC has the following powers, which are same as those vested with the civil courts (through Code of Criminal Procedure, 1908), while it enquires into the complains related to harassment –

1)It can call and oblige any person and examine him on oath,

2)It can require the finding and production of documents, and

3)It has powers with respect to any matter prescribed.[23]

Complaint Mechanism

The victim needs to submit six copies of the written complaint and supporting documents along with the names, and address of the witnesses to the IC, within three months from the incidents date. Promptly registered complain renders the complaint more authentic and it helps in a swift action to be taken by the authorities. However, in cases where the complainant can show sufficient reasons for delay in the filing of the complaint, then IC may grant additional time. Additionally, friends, co-workers, or relatives may also file the complaint. No format for filing the complaint has been prescribed which makes the procedure easy to follow.

Non-Compliance And Its Consequences

In case an employee fails to comply with the requirements under the act, a penalty of RS.50,000 may be imposed. In case the offence is repeated, the punishment would be doubled and the entities licence can be revoked. All offences under this act are non-cognizable.[24]

Obligations Of The Employer

There are certain callings that the proprietor is entailed to satisfy. The employer, as has been discoursed in the prior segments, is necessitated to comply with the prerequisite of the formation of an ICC. The employer, other than realizing this clause also has to ensure not only the effectual redressal of the complains connected to sexual harassment but also that this redressal is done in a time constrained modus. Additionally, the employer is commanded, as per the riders of the POSH Act to discharge certain onuses as have been enlisted below-

• Provide an environment which is not vulnerable for working.
• Embolden a milieu in the operating place that is gender perceptive and palliation of factors that might lead to conception of unreceptive surroundings of work which are against the female employees.
• There should be a policy or decree or charter, articulated so that it is safeguarded that there is not only preclusion and exclusion of sexual persecution at the location of work but also redressal of such whinges. Propagation of such a deposition, amid employees is equivalently crucial.
• Sensitization and consciousness are indispensable. These can help to generate sentience about the concern of sexual harassment as well its insinuations, amongst the employees. Therefore, workshops and colloquiums for the same should be systematized in the offices and establishments.
• The make – up of the ICC must be strutted clearly. The names and contact information of every affiliate who is a part of the ICC should be pronounced.
• There should be prominent presentation of the penal corollaries, at the workplace, that can affect if there is indulgence in any kind of exploits that may constitute sexual pestering.
• The ICC should have the competences knacks proficiencies which are effective enough so that they can meritoriously deal with the complaint and there can be an efficient conduction of inquisition into the same.
• orientation or induction programmes should be organised for the representatives of the ICC.
• Case should be commenced against the wrongdoer, under IPC or any other directive which is in force, or in the employment place where the instance of harassment transpired if the committer isn’t an employee.
• The mistreated women, who opts to dossier a complaint against the molester, under IPC or any other law, should be afforded with apposite succour.
• A yearly report should be concocted wherein it is enumerated that how many cases were filed under this wrong and the account should also specify details of their clearance.
• The annual report should be compulsorily submitted to the District officer.
• The employer is responsible to overseer that the submission of the reports, by the ICC, is in time.
• The service rulings of the company should be devised to include sexual harassment as one of the offences that are deemed as misconduct in the office and therefore, action should be taken against the accused for delinquency.

Conclusion

The development of India and its strengthened commitments to uphold the values of its Constitution, demonstrate its dedication to the fundamental rights of its people. one such example is the Posh Act especially when one considers the origin of this law back to the 1990s.As India is progressing as a country, and with the enhancement of its economic policies, it is important for the places of work and other institutions or organizations to stay up to date with the trends of the growth and development in this modern world, and foster merit-driven work, eliminating all forms of discrimination that exists at work places. It has not only provided protection to women but also provisions to prevent the misuse of the Act. The Posh Act, is a move towards achieving a meritocracy and will produce its benefits in time and thus help in the development of women workforce, providing them equal opportunities and prospects to work without any fear of sexual harassment at the work place.

[1] Statement of Objects and Reasons, Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013.

[2] Indira Jaising, Complainant in the dock (2017).

[3] Vishaka v. State of Rajasthan, AIR 1997 SC 3011.

[4] Indira Jaising, Eliminating Sexual Harassment At The Workplace: Broadening The Discourse On Gender Equality (2014).

[5] Convention on Elimination of All Forms of Discrimination against Women,1979.

[6] Nishith Desai, India’s Law on Prevention of Sexual Harassment at the Workplace (2018)

[7] Apparel Export Promotion Council v. A.K Chopra, (1999) 1 SCC 759.

[8] Medha Kotwal Lele & Ors v. U.O.I. & Ors, (2012) STPL (Web) 616 SC.

[9] Meritor v. Vinison, (1986) (477) US.

[10] Ellis0n v. Brady, (1991) (924) F.2D 872, Fuller v. City of Oakland, (1995) 47 F. 1522.

[11] Prevention of Workplace Sexual Harassment Act,2013, §. 1.

[12] POSH §.2(a)

[13] POSH §.3.

[14] POSH §.2(o)

[15] POSH §. 2(n).

[16] Shah Usman,Sexual Harassment Of Women At Workplace: A Brief Analysis Of The POSH Act, 2013(2019)

[17] Punita Sodhi v. Union Of India & Ors,WP (C) No. 367/2009 & CMS 828, 11426/2009.

[18] POSH, §. 2(f).

[19] POSH, §. 2(o).

[20] Saurabh Kumar Mallick v. Comptroller & Auditor General of India, WP (C) No. 8649/2007.

[21] GHPL & Arvinder Bagga v. Local Complaints Committee, District Indore and Ors, W.P (C) .No.22314 & 22317 of 2017.

[22] POSH, Rule 4.

[23] POSH, §. 11(3).

[24] POSH, §. 27.

• Author: Sakshi Sharma
• Intern at Lawportal
• Email: sakshisharma1399@gmail.com

Author: Sakshi Sharma,
Intern at lawportal.