Introduction to Prevention of Sexual Harassment:
Before the POSH, Act 2013, there was no specific legislation that obliged the employer to provide a safe working environment to women. It was made mandatory in the famous Vishaka guidelines[1] (Vishaka Vs. State of Rajasthan[2]). Sexual abuse before POSH was covered under the violation of the fundamental right of the victim which is the right to live with dignity under Article 21, Article 14 which describes the violation of women’s equality under the law, and Article 19 which states the right to any profession, or occupation, or trade, or business. Posh stands for Prevention of Sexual Harassment it was enacted in the year 2013 this act for the protection of women from sexual harassment in the workplace is called the prevention, protection and redressal Act 2013. This Act was brought into existence after 16 years after the Supreme Court’s landmark Vishaka guidelines. This Act prohibits any sexual harassment at the workplace as well as redresses it meaning the organization or the employer is responsible to sort out any such matter.
Definition of Sexual harassment as per the Section 2 (n) of the Posh Act, 2013[3]: “Sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: –
- Physical contact and advances; or
- A demand or request for sexual favors; or
- Making sexually colored remarks; or
- Showing pornography; or
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
Consequences of absence of Posh, and its effects on an organization.
Having a posh policy is mandatory in the organization meaning it is made mandatory by the Posh, Act 2013 to have an “Internal Complaints Committee” as per the 2017 amendment now renamed as “Internal Committee”. Any organization having more than 10 employees shall mandatorily have an Internal Complaints Committee, in case an organization has less than 10 members then there exists a local district committee in all districts and the victim should launch a complaint in the local committee. Once an IC (Internal Committee) is constituted it is constituted permanently irrespective of the fact that there is no case of sexual abuse in the organization. The term for the IC committee is three years thus every three years members of the IC committee keep changing .If any employer including government as well as non-government fails to comply with the Posh Act then it shall be charged with a penalty not exceeding rupees 50,000.
Such penalty[4] may arise from the following but are not limited to reasons:
- The employer has not formed an Internal Complaints Committee even when he has more than 10 employees;
- The employer does not or has not taken any steps as per the recommendation of the Internal Complaints Committee;
- The employer has failed to file an annual report with a district officer as or when required;
- The Employer fails to perform his duties in any way as per the Act or rules.
In case the Employer repeats the same act then it has to face double the punishment assigned to it previously or a higher punishment which includes Cancellation/ Withdrawal/ Non-Renewal of Registration/ License that is required for it to carry on its business. In simpler words closure of business.[5]
Internal Committee:
As per the POSH, Act 2013 section 4 (1): Every employer of a workplace shall, by an order in writing, constitute a committee to be known as the “Internal Complaints Committee”. In simpler words, it is a committee formed to take notes of all the complaints of the aggrieved person and act in the best interest of such aggrieved person by making recommendations for the resolution of such complaints to the management or board.
Note: if there are different offices or administrative units of an employer or a business concern at different places then it shall constitute an IC committee at all such different places.
Here is how an internal committee is formed:
- The IC committee shall consist of these members nominated by the employer:
- The chairperson of such committee shall be a woman employed at a senior level in case of the absence of such a person the employer shall appoint any other such high-level woman employee from its other offices of the workplace.
- At least two members of such committee shall be committed to the cause of women or shall have experience in social work or shall have legal knowledge.
- One member shall know sexual harassment-related issues or shall be part of an NGO committed to the cause of women.
- At least one-half of the members of such a committee shall be women.
Who appoints the member?
The employer or the board is responsible for the appointment of the members of the IC committee. Such an appointment is made in writing through board resolution.
What is the term of such an IC committee?
The chairperson of such IC Committee shall hold office for the period of 3 years from the date of commencement of his/her period as a chairperson which shall be as specified by the employer.
Can a chairperson of the local IC committee be removed?
Yes, such a chairperson can be removed if:
- If such a chairperson publishes or fails to maintain the confidentiality of the aggrieved person’s information.
- If the chairperson is found to be under any conviction under any law or is a convict and has committed an offence.
- If such a chairperson is found at fault in a disciplinary proceeding or there is a commencement of such proceeding against him/her.
- If a person is found to have abused his/her position against the public interest.
In any of the above cases, the Chairperson of an IC committee can be removed by the Employer or the board.[6]
POSH Judgements:
- Medha Kotwal Lele & Ors. V. Union of India & Ors: In this case, Medha Kotwal wrote a letter that later on converted to a writ petition. The letter stated the ineffectiveness of the Vishaka Guidelines. The SC issued an order to BCI to respect and implement the Vishaka Guidelines. Thus, an aggrieved could now go to the doorsteps of the High Court for violation or non-compliance with the Vishaka Guidelines.
- Mukesh & Anr. Vs. State for NCT of Delhi & Ors: The victim was a 23-year-old Physiotherapist she was gang-raped by five adult men and a juvenile who also became the reason for her death, this case widened the scope of the definition of rape under this Act and provided for capital punishment in the rape case that leads to death of the victim.
- Apparel Export Promotion Council v. K Chopra: This case removed the limitation of rape being limited only to physical gestures or acts by including any verbal comments, sexual discriminations, sexual advances, requests for sexual favours, and other verbal or physical conduct with sexual overtones.
Conclusion:
Posh Act is a blessing for women in the workplace as this act helps and protects the interest of women in the workplace it also does help maintain the right to equality and personal liberty for women. But a burning question these days is, are only women under such pressure today at the workplace?
Author(s) Name: Keval Cyril Patelia (Maharaja Syajirao University of Baroda)
References:
[1] Guideline and norms laid down by the Hon’ble Supreme Court in Vishaka and Others Vs. State of Rajasthan and Others (JT 1997 (7) SC 384) (chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/HTTP:/www.nitc.ac.in/app/webroot/img/upload/546896605.pdf)
[2] Vishaka and others v the State of Rajasthan (last edited on 22 August 2022), Wikipedia, accessed on 29 Sep. 22, (https://en.wikipedia.org/wiki/Vishakha_and_others_v_State_of_Rajasthan)
[3] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, section 2(n). (chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https:/legislative.gov.in/sites/default/files/A2013-14.pdf)
[4] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Chapter VII Section 26 (Penalty for non – compliance)
[5] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, (CHAPTER II CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE) (chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https:/legislative.gov.in/sites/default/files/A2013-14.pdf)
[6] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, (CHAPTER III CONSTITUTION OF LOCAL COMPLAINTS COMMITTEE) (chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https:/legislative.gov.in/sites/default/files/A2013-14.pdf)
