The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that seeks to protect women from sexual harassment at their place of work. It was passed by the Lok Sabha (the lower house of the Indian Parliament) on 3 September 2012. It was passed by the Rajya Sabha (the upper house of the Indian Parliament) on 26 February 2013. The Bill got the assent of the President on 23 April 2013. The Act came into force from 9 December 2013. This statute superseded the Vishaka Guidelines for Prevention Of Sexual Harassment (POSH) introduced by the Supreme Court (SC) of India. It was reported by the International Labour Organization that very few Indian employers were compliant to this statute. Most Indian employers have not implemented the law despite the legal requirement that any workplace with more than 10 employees needs to implement it.
According to a FICCI-EY November 2015 report, 36% of Indian companies and 25% among MNCs are not compliant with the Sexual Harassment Act, 2013. The government has threatened to take stern action against employers who fail to comply with this law.
An important feature of the POSH Act is that it envisages the setting up of a grievance redressal forum.
( As per the Repealing and Amending Act, 2016, the nomenclature of Internal Complaints Committee was changed to Internal Committee.)
The POSH Act requires an employer to set up an ‘internal committee’ (“IC”) at each office or branch, of an organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment.17 Failure to constitute the IC has led to the imposition of a fine under the POSH Act.18
B.Constitution of the IC
- Presiding Officer Woman employed at a senior level at the workplace from amongst the employees.
- Members Not less than 2 members from amongst employees.
- Preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
- External member From an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment.(A person who has expertise on issues relating to sexual harassment and includes a social worker with at least 5 years of experience in the field of social work towards empowerment of women and in particular in addressing workplace sexual harassment; or someone who is familiar with labour, service, civil or criminal law (as per Rule 4 of the POSH Rules).
- Not less than half of the IC Members shall be women.
- The term of the IC Members shall not exceed 3 years.
- A minimum of 3 Members of the IC including the Presiding Officer is to be present for conducting the inquiry.
C.Registration of the IC
The Department of Women and Child Development of Telangana and Maharashtra has issued a circular (on 01.07.2019 for Telangana) and an office order (on 23.03.2017 for Mumbai) mandating registration of the IC in Telangana & Mumbai. While employers in Mumbai were required to register their ICs with the office of the District Women and Child Development Officer in the prescribed format, employers in the state of Telangana were required to register their ICs on the Sexual Harassment Electronic Box (“T-she box”).
As per Repealing and Amending Act, 2016, the nomenclature of Local Complaints Committee was changed to Local Committee.
At the district level, the government is required to set up a ‘local committee’ (“LC”) to investigate and redress complaints of sexual harassment from the unorganized sector or from establishments where the IC has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer.21 The LC has special relevance in cases of sexual harassment of domestic workers or where the complaint is against the employer himself or a third party who is not an employee.
E.Powers of the IC/LC
The POSH Act stipulates that the IC and LC shall while inquiring into a complaint of workplace sexual harassment, have the same powers as vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of:
i. summoning and enforcing the attendance of any person and examining him on oath;
ii. requiring the discovery and production of documents, and
iii. any other matter which may be prescribed. (Section 11(3) of the Prevention of Workplace Sexual HarassmentAct )
Constitution of the LC
Chairperson : An eminent woman in the field of social work and committed to the cause of women.
Local Woman: One of the members to be nominated from amongst the women working in block, taluka, tehsil or
ward or municipality in the district.
NGO members: Two members, out of which, at least one shall be a woman to be nominated from an NGO or an association committed to the cause of women or a person familiar with issues pertaining to sexual harassment.
- At least one of the members should have a background in law.
- At least one of the members should be a woman belonging to the Scheduled Castes or Scheduled Tribes
Women safety at the workplace
As per the data published, the following data was unveiled about sexual harassment of women in the workplace. Various studies revealed a spike of 14% in sexual harassment cases in almost 100 BSE companies. Representation of women in these companies rose by 8% in the year 2019. This growth could be found directly related to the awareness created by #MeToo.
In the year 2019, 823 cases of sexual harassment have been registered so far compared to 722 cases last year. Similarly, data published by India spend, in the year 2014, workplace sexual harassment cases increased by an alarming 54% compared to 2017. Amidst the growing concerns about workplace harassment, the government came with a law to prevent such incidents at the workplace. This act was known as the POSH act.
What is considered to be harassment at the workplace?
Under POSH Act, section 2 provides details of actions which come under the domain of harassment, these are; Any unwanted physical contact or advances towards the victim which could be intimidating or sexual in nature. Any demands for sexual favors. Passing demeaning or sexual remarks over the color of the victim. Forcefully showing pornography to the victim. Unwanted abusive, sexual or physical conduct. Furthermore, the act broadens its definitions of sexual harassment which indicates its usage in various situations at the workplace. Here are some of these acts; and any form of a promise to give preference towards any growth or hiring in victims’ employment. Threat of any form to disrupt the victim’s employment if sexual request or demand isn’t met. Threat made towards altering or interfering in victims present or future employment status. Creation of hostile or offensive work environment for the victim. Any undesired treatment which can affect victims’ health or safety.
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Mandatory measures under POSH Act
Section 4 of this Act mentions the measures (which are declared mandatory) to be taken by employers to safeguard women at the workplace. Here are the pointers which are important to comply with for every employer. These measures are termed mandatory for every firm which has more than 10 employees on its rolls. Drafting an internal committee which should mandatorily comprise of a presiding officer (a woman) who shall be appointed by the senior management. At least one external member who is from any external non-government organization, NGO. Minimum of two employees from the same firm who shall represent the employees of an organization. At least one half of the panel should be women. This is to make sure the balance of gender ratio & provide a comfort level to the victim to speak freely.
Employees should go through POSH training at least once mandatorily every year. Every case that is reported, irrespective of assuming the intention or level of impact, it is mandatory for the committee to enquire in each case. If the employer fails to comply with the act within the workplace, a hefty fine which may go up to 50,000 can be imposed. If the same is still not brought into effect, the fine amount can spring up to twice the fine for the first time noncompliance. Along with that, cancellation of license, withdrawal can also be levied by the government.
Pros & Cons of POSH Act
The POSH Act has provided a structured definition of sexual harassment within a workplace. This has broadened its concept & helped in safeguarding the safety of women within the corporates of modern India. However, it has some shortcomings too. Here are some pros & cons of the POSH Act.
- The POSH act helped in highlighting sexual harassment at workplace more effectively & provided a platform for victims to get speedy solution. POSH Act looks upon sexual harassment at workplace as a undebatable criminal offense & makes its definition much simple & understandable.
- POSH Act also provides a detailed view of actions which can be physical or verbal in nature & can easily be placed under the POSH Act. Mandatory compliance of POSH Act within organizations has provided a perfect platform for its better advertisement & better understanding.
- Provisions under this act provide internal committees with guidelines to act quickly on any such complain & provide an effective solution for the same. POSH Act has acted as a confidence booster for women to go out & pursue a career in various fields without having to worry about any form of harassment at work.
- Implementation of the POSH Act on the ground is still not compiled by a lot of companies. Application of this act in government offices is still vivid & clear understanding of the act in regards to government offices can still prove tricky.
- This act became threat as some corrupt Staff or politicians using this as wepon to harass the Honest Officers. Example Ranjan Gogoi case in 2019-2020.
Preamble and background
The introductory text of the Act is:
An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under Article 21 of the Constitution and right to practise any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;
AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June 1993 by the Government of India;
AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.
Major features of the PoSH Act 2013
- The Act defines sexual harassment at the workplace and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
- The Act also covers concepts of ‘quid pro quo harassment’ and ‘hostile work environment’ as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment.
- The definition of “aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
- An employer has been defined as any person who is responsible for management, supervision, and control of the workplace and includes persons who formulate and administer policies of such an organisation under Section 2(g).
- While the “workplace” in the Vishakha Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve telecommuting will get covered under this law.
- The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
- Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
- The Complaints Committees have the powers of civil courts for gathering evidence.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.
- The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality.
- The Act requires employers to conduct education and sensitisation programmes and develop policies against sexual harassment, among other obligations. The objective of Awareness Building can be achieved through Banners and Poster displayed in the premises, eLearning courses for the employees, managers and Internal Committee members, Classroom training sessions, Communication of Organizational Sexual Harassment Policy through emails, eLearning or Classroom Training. It is recommended that the eLearning or Classroom Training be delivered in the primary communication language of the employee.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to ₹ 50,000. Repeated violations may lead to higher penalties and cancellation of licence or deregistration to conduct business.
- The government can order an officer to inspect the workplace and records related to sexual harassment in any organisation.
- Under the Act, which also covers students in schools and colleges, as well as patients in hospitals, employers and local authorities, will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to 50,000 rupees.
Through the Criminal Law (Amendment) Act, 2013, Section 354 A was added to the Indian Penal Code that stipulates what consists of a sexual harassment offence and what the penalties shall be for a man committing such an offence. Penalties range from one to three years of imprisonment and/or a fine. Additionally, with sexual harassment being a crime, employers are obligated to report offences.
Brinda Karat, serving in the Rajya Sabha as a Communist Party of India (Marxist) member for West Bengal, initially complained that the Bill does not cover women in the armed forces and excludes women agricultural workers, “a gross injustice to agricultural workers who are the single largest female component of the workforce in the country.” However, the final bill includes the clause “No woman shall be subjected to sexual harassment at any workplace” (clause 3.1), and is considered to have addressed those concerns. In the May 2012 draft Bill, the burden of proof is on the women who complain of harassment. If found guilty of making a false complaint or giving false evidence, she could be prosecuted, which has raised concerns about women being even more afraid of reporting offences. Before seeing the final version of the bill, lawyer and activist Vrinda Grover said, “I hope the Bill does not have provisions for penalizing the complainant for false complaints. This is the most under-reported crime. Such a provision will deter a woman to come forward and complain.” Zakia Soman, a women’s rights campaigner at ActionAid India said that “it helps to have a law and we welcome it, but the crux will lie in its implementation once it is enacted.”
Manoj Mitta of The Times of India complained that Bill does not protect men, saying it “is based on the premise that only female employees needed to be safeguarded.” Nishith Desai Associates, a law group, wrote a detailed analysis that included concerns about the role of the employer in sexual harassment cases. They called out the fact that there is no stipulated liability for employers in cases of employee-to-employee harassment, something upheld in many other countries. They also viewed the provision that employers are obligated to address grievances in a timely manner at the workplace as problematic because of potentially uncooperative employees. Furthermore, the law requires a third-party non-governmental organisation to be involved, which could make employers less comfortable in reporting grievances, due to confidentiality concerns.
Compliance to this statute has so far been left to the vagaries of the employers and government has not taken any significant step to enforce the law so far. For example, 6 months after the law came into effect, the state in UP remained dreadful as women could not participate in the workforce due to sexual harassment. Every day women are being harassed but there are no records for many cases.
Some tribunals have commented on the constitutionality of some of the provisions of the statute, especially section 4 and Section 7.