Author:Bagya Shree L
Editor: I Sharan
Introduction:
The workplace serves as a second home for many employers and employees as they spend 9 -10 hr per working day. It’s always the person who provides those jobs to ensure that it is the safest environment for the workers to work without any harassment, misleading behaviour and discomfort. As recognized, sexual harassment is in the workplace. To avoid such situations and to provide a safer environment, the government, which acts as supremacy of law, gave special importance to avoiding those kinds of eve teasing and implemented the POSH Act. This article will be explored entirely with provision, procedure, case laws and other aspects that are governing Sexual Harassment in the Workplace to safeguard employees.
Keywords:
- Sexual Harassment
- Women
- Protection
- Behaviour
Meaning of Sexual Harassment
Sexual harassment is an unwelcoming gesture or behaviour through means of physical contact, a demand for sexual favours, making sexually coloured remarks, showing pornography, any other verbal, non-verbal contact in sexual nature as per section 2(n) of the POSH Act. The creation of a hostile environment is also a form of sexual harassment. One significant piece of information is that there is no limit to the age of women when it is under the roof of sexual harassment.
Workplace
The place in which employees perform their work-related tasks for their employer, the employee may get a salary or may not get the salary. Under section 2(o) of the POSH Act – The work place includes any department, organization, unorganized sector, not less than 10 members as workers, any private sector, any public sector, self-employed, a dwelling house, supply, distribution, service, journey and place visited for the purpose of the course of employment, any sports institution, enterprises, complex, game venue, hospital, undertaking, enterprises, owned, controlled.
Evolution of Sexual Harassment
In India during the initial phase, there was no separate statutory remedy that directly addressed sexual harassment. We had only section 354 and 509 under the Indian Penal Code, 1890 but the application of such provision was limited in nature. This was found in the case of Rupan Deol Balaji vs. K.P.S. Gill (1995). Where an IAS officer had been sexually harassed by the superior officer and the scope of such prosecution was limited as we don’t have any separate statutory or provision for sexual harassment in the workplace.
In the 1992 Bhanwari Devi case, a Dalit social worker employed in the government sector was gang raped in Rajasthan, which highlights the dimensions of sexual harassment, which also acts as one of the milestones for the formation of the POSH Act.
Not only case laws, International Conventions are also one of the reasons for The POSH Act, namely the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) which has a preamble to take on the aspect of equality of women in the workplace and gender-specific violence. India was one of the members of this convention and adopted them in the POSH Act.
International Labour Convention on Discrimination (Employment and Occupation) Convention. India was one of the members of the convention, inspired by the purpose and adopted the prohibition and prevention of gender-based discrimination in the workplace.
All these case laws and conventions initiated to have a POSH Act through Vishaka guidelines in the case of Vishaka vs. the State of Rajasthan gave directions to the Union of India to frame a law to combat the prevention of sexual harassment in the workplace. These guidelines energized and came up with the POSH at workplace Act 2013. This Act consists of eight chapters with 30 sections dealing with Complaints, constitution of the Internal Complaints Committee, the constitution of the Local Complaint Committee, Inquiry into complaints, Duties of Employers, Duties and Powers of District Officers and Miscellaneous.
Comparison with other Countries
Many countries have adopted prevention of sexual harassment, which has similarities with The POSH Act and some differ from The POSH Act as they generally focus on sexual harassment without any gender specification and workplace.
Australia is one of the countries. This follows the prevention of sexual harassment in the workplace, through the legislation called The Sex Discrimination Act 1984. The Sex Discrimination Act has a similarity with The Indian POSH Act, like having a Human Rights commission to handle complaints and inquiries. On the other hand, the POSH Act has an Internal complaint’s committee to handle complains and inquiries. They do have distinguished in the field of remedy and damage.
The United States of America has adopted The Civil Rights Act of 1964 under Title VII which prohibits workplace harassment based on race, sex, colour, religion and nationality. It dealt with general harassment and was not so specific about sexual harassment. On the other hand, The POSH Act deals with sexual harassment. The Equal Employment Opportunity Commission in the USA handles complaints against employers for harassment. The Civil Rights legislation acts in a broader way as compared to The POSH Act as it adds on to race and religion.
The United Kingdom has adopted the Equity Act 2010, which been adopted to prevent sexual harassment in the workplace with any discrimination, on race, sex, religion, disability, age etc, with a wider range of prevention of harassment. It complies with The POSH Act, like to prevent and address sexual harassment in the work place, to provide a safer environment for the workers and fails to follow the immediate actions to be taken.
Kinds of Legislation as a remedy for Sexual Harassment
Apart from the POSH Act, we do have The Protection of Children from Sexual Offense 2012 POCSO to prevent sexual harassment of children under the age of 18 in any place of any sex. The POSH Act has limited scope for the prevention of Sexual Harassment only with the ambit of workplace to women of any age. In Bharathiya Naaya Sanhitha 2023, chapter 5, this deals with sexual offences from section 63 to79. This has allotted a punishment maximum of up to 7 years of imprisonment for such harassment.
Forms of Sexual Harassment
Sexual harassment is booming nowadays. Many remain uncertain about what sexual harassment is, whether it is sexual harassment and if these kinds of behaviour amount to sexual harassment. To be certain, knowledge of these forms is more significant. Everyone should have awareness of these forms so that they will not be bound liable or be affected themselves.
Verbal harassment – Making commentaries/jokes/vulgar terms sexually about the body parts of the individuals. It may be based upon the size of such an organ or any other thing too, that affect the dignity of such individuals.
Non-verbal harassment – Leering, making sexual gestures, or displaying sexually explicit images to the individuals.
Physical harassment – Physical touch in unwanted places of the body parts that is groping in nature or simply assault.
Cyber harassment – sharing sexual content images or messages through electronic means.
Quid pro quo harassment – Demanding sexual favours in compensation for some activity / work /promotion/etc usually found in the work place.
Hostile work harassment – creating an environment that is intimidating, hostile or offensive due to unwelcoming sexual conduct.
Essential
As per the POSH ACT the formation Internal Committee (IC) in the workplace, even if it has multiple locations, each location should have an internal complaint community. Those committees should be established by the employer in written order. The composition of the IC should consist of a presiding officer. She should be a senior employee. 2 other members should present one with experience in social work and legal knowledge. One external member should be present from the NGO or association focusing on women’s issues.
Tenure of members – All members have tenure of 3 years.
Compensation– The external members can get an allowance as prescribed.
Removal of members – members can be removed if they breach confidentiality, are convicted, found guilty, misuse of their position. If a vacancy is available it should be filled with the same criteria.
Legal Provisions for local committees and related Procedures
- Notification to the District Officer about the complaints arose and to handle the matter under this act.
- Constitution and Jurisdiction of LC – The District officer must set up a local committee in every district to handle the complaints under this act with the workplace with less than 10 workers. Nodal officers are appointed in different locals to get the complaints and forward it to the LC within 7 days of receiving complaints. One Chairperson with knowledge of women’s issues and social work, a Local Governance Member, 2 members, one from an NGO or similar association with legal knowledge and the other one from a lower community, and one Ex Officio Member of social welfare or from a women’s or child development background.
Removal – members can be removed in case of breach of confidentiality, convictions, disciplinary issues or misuse of position.
Compensation – Same as IC.
Guidelines
Filing a Complaint – Written Complaint by an aggrieved woman can be filed with the Internal Committee or Local Committee within 3 months of the incident. If unable to write a complaint, a committee should assist the women in making the complaint. If she is unable to file the complaint, her legal heir or guardian will file the complaint.
Conciliation – If women request before an inquiry, IC or LC can facilitate settlement between the parties. That settlement should be recorded, and that information should be informed to the District Officer. Copies of the settlement should be delivered to both parties as a record of the settlement.
Inquiry process – The IC or LC should move to the investigation of the complaint if there is no settlement. If needed, they can transfer such a complaint to the police if necessary.
Power and Duration of Inquiry – The LC and IC have power as similar to The Civil Court, including Summoning withness. The inquiry must be completed within 90 days.
Traditions-based Law
Prior to the POSH Act 2013, there were no separate statues addressing sexual harassment in the work place. Instead, we have the Indian Penal Code 1860, provisions for punishment of rape, section 354 outraging the modesty of a woman and section 509 the modesty of a woman. Later in 2012, POCSO was introduced with a narrow scope for children at 18 years of age.
Amendments
Amendment took place in 2016
In sections 6,7and 21
- The term Local Complaints Committee was substituted as Local Committee.
- The term Internal Complaints Committee was substituted as Internal Committee.
In 2024, a bill was introduced in parliament.
- Purpose of extension of complaint filing from 3 months to 1 year from the date of incident.
- The Internal Committee had power to extend only 3 months to receiving complaints. The bill was passed for the extension of time from 3 months to unlimited time.
- To omit section 10, the conciliation provision.
Statistical Analysis
The statistical analysis indicates that there are many complaints compared to each previous year as it highlights that many are getting awareness of this legislation and remedies coming up to solve their issues with courage. It is found that many no of cases are filed by larger companies, which is nearly 90 to 98%. In middle companies, 2 to 3% of complaints were registered. No complaints are recorded from the small-scale companies. The intensive spike of complaints is not a reflection of good society. Hence, we still need the law to improve and be stricter than now.
Conclusion& Comments
The POSH Act, 2013 represents a significant step forward in safeguarding women from harassment, especially in the workplace. The POSH Act provides a safer and more equitable workspace. The increase in the number of complaints indicates that awareness and enforcement still have a long way to go. The POSH Act has laid a strong foundation, continuous efforts are needed to strengthen its implementation and adapt to new challenges. The proposed amendments, particularly extending the time for filing complaints and potentially eliminating the conciliation process, reflect an evolving understanding of the needs of victims and the complexities of addressing sexual harassment. It is essential for legal professionals and lawmakers alike to remain committed to refining and enforcing these protections, ensuring that they effectively serve the people they are designed to protect.
REFERENCES
Books / Commentaries / Journals Referred
- Times of India
- Wire on.
Online Articles / Sources Referred
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- Wikipedia
- Indian Kanoon
- Nyaya organization blog.
Cases Referred
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- Vishaka vs. State of Rajasthan.
- Rupan Deol Balaji vs. K.P.S. Gill (1995).
- Bhanwari Devi case.
Statutes Referred
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- Protection of Women from Sexual Harassment Act, 2013 (POSH)
- Protection of Children from Sexual Offence Act, 2012 (POCSO)
- Bharathiya Naaya Sanhitha, 2013
