The battle for introducing a law to prevent and deal with sexual harassment at workplace began with the tragic case of Vishaka & Ors. v. State of Rajasthan & Ors (hereinafter referred to as the “Vishaka Case”). The Vishaka Case caused an uproar for women’s safety and drew worldwide attention. The case facilitated in enacting what is known today as the ‘Vishaka Guidelines’. It is safe to say that the Vishaka Guidelines were the cornerstone of enacting a law on prevention of sexual harassment at workplace as in the years to come, a statute on the aforesaid was enacted. The law came to be known as The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 (hereinafter referred to as “POSH Act”) and is commonly referred to as the POSH Act. Similarly, Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Rules, 2013 were also enforced.
Companies all over India have taken up the task to introduce a Policy in order to prevent and deal with sexual harassment at workplace. This policy is often term as the ‘Posh Policy’. While drafting a POSH Policy, it is essential to define key terms in order to avoid ambiguity.
1) Sexual Harassment: One of the most important terms that needs to be defined as per the POSH Act is ‘sexual harassment’. The definition of sexual harassment has been provided in section 2 (n) of the POSH Act and shall be read with section 3 (2) of the Act. Section 2 (n) defines sexual harassment as any unwelcome POSH Actor behaviour including physical contact, advances, showing pornography, making sexually coloured remarks; demanding or requesting sexual favours; or other unwelcome physical, verbal or non-verbal conduct of sexual nature. Further, section 3 (2) widens the ambit of sexual harassment to include promise of preferential treatment in the employment of the aggrieved woman, threat of detrimental treatment in the employment of the aggrieved woman, threat about her present or future employment status of the aggrieved woman, interference with the aggrieved woman’s work or creating an intimidating or offensive or hostile work environment for her; or humiliating treatment likely to affect the aggrieved woman’s health or safety. The aforementioned promise could either be explicit or implied.
2) Workplace: Another important definition provided in the POSH Act is of what constitutes a ‘workplace’. The aforesaid term has been defined in section 2 (o). This is a crucial definition as it helps us understand which organizations or establishment this Act would cover under its ambit. For instance, the definition of workplace not only includes private organizations, but also government establishments of various kinds, hospitals, sports complex, stadium, dwelling place, house, any place visited by an employee during the course of employment which also includes transportation services provided by the employer, etc. Therefore, the definition of service has been given a wide meaning to include all the possible establishments that could be regarded as workplace in relation to the crime.
Internal Complaint Committee
The POSH Act makes provision for establishing an Internal Complaints Committee (hereinafter referred to as “ICC”) in section 4. The aforesaid section states that an ICC shall be constituted at all administrative units or offices. The structure of the committee shall be as follows:
- The Presiding Officer shall be a woman employed at a senior level. Whereby such criteria cannot be fulfilled the Presiding Officer can be chosen from any other administrative units, office, other departments, etc.
- Two members shall be such who shall be committed to the cause of women or who have had experience in social work or have legal knowledge.
- A member must be selected form an NGO or similar association. Such an NGO or association shall be committed to the cause of women or shall be aware of the issues concerning sexual harassment.
- An essential criterion of forming such a committee shall be ensure that at least half of the ICC shall comprise of women.
The legislature has made a progressive provision in the POSH Act to deal with sexual harassment complaints in establishments that are devoid of an ICC. This measure would help ensure that women get the opportunity to get their complaint officially addressed and not go unheard. This is a safeguarding redressal mechanism.
In absence of an ICC in an establishment for reason of having less than ten workers or where the employer is the perpetrator, the District Officer shall constitute a Local Committee that shall do the work of an ICC such establishments. The Local Committee would receive sexual harassment complaints from the aforementioned establishments. The jurisdiction of the aforementioned committee shall restrict to the district where it is constituted. A nodal officer will be in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area. The task of such nodal officer would be to forward the complaint received by him to the Local Committee.
Procedure of Complaint
An aggrieved woman, within three months from the date of last incident, shall make a written complaint to the ICC or the Local Committee. In case the complaint cannot be made in writing, the aggrieved woman shall be provided the necessary reasonable assistance to facilitate a written complaint. Where the woman is prevented from making the complaint within a period of three months due to certain circumstances, the ICC shall relax the three-month time period of filling the complaint and give further extension for making the said complaint, provided the time period does not surpass three months. Furthermore, the legal heir of a deceased aggrieved woman should be given the opportunity to make a complaint with the ICC. Similarly, where the aggrieved woman is suffering from a physical or mental incapacity, her legal heir shall be permitted to make the complaint.
It is pertinent to note that the POSH Act makes a provision for conciliation between the aggrieved woman and the alleged offender. The POSH Act makes it ample clear that the said conciliation shall not amount to any monetary settlement between the aforesaid parties. The conciliation is required to be carried on by the ICC and shall be recorded accordingly. the copies of the same shall be provided to the employer or District Officer to take action as specified in the recommendation.
The POSH Act makes a provision for providing interim relief to the aggrieved woman during pendency of the inquiry. According to the Act, if the aggrieved woman makes a request to the ICC or the Local Committee, the said committee shall advise the employer to transfer the aggrieved woman or the respondent to any other workplace, grant leave to the aggrieved woman up to a period of three months, which shall be in addition to the leave she would be entitled to. or grant any other relief to the aggrieved woman. The said request shall be made in writing. The Employer is required to POSH Act upon the recommendation within sixty days of its receipt by him. Further, it is pertinent to note that the Employer shall send a report of implementing the said advise to the Local Committee or the ICC.
Section 13 (3 ) (ii) states that the aggrieved woman shall be paid a sum from the salary or wages of the perpetrator. While determining such sum, the ICC or Local Committee shall take into consideration the following:
- medical expenses, if any;
- the perpetrator’s income and financial status;
- if the aggrieved woman’s career opportunities have been hampered due to the sexual harassment.
- the mental trauma, pain, suffering and emotional trauma that the aggrieved woman had undergone during the commission of the crime or after the incident/s.
- whether the payment could be made in lumpsum or instalment.
This provision not only helps ensuring that the victim gets fair compensation, but also ensures that the perpetrator pays for the crime he committed.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 contains quite a few provisions that would help address the plight of a victim of sexual harassment. That being said, it also ensures that false evidence is not presented during the inquiry and lists down the consequences for filing a malicious complaint as well. The POSH Act has made provision for ensuring the safety of the victim by ensuring that the contents of the complaint, the identity and addresses of the aggrieved woman, respondent and witnesses, any other relevant information does not come out in the public. Where any person entrusted with such responsibility abrogates it, he shall face the consequences of doing so in accordance with the Service Rules. The POSH Act also goes a step further to list down the responsibilities of an Employer like providing a safe environment, organise workshops, provide assistance to the ICC or Local Committee in carrying out their task, etc. The only flaw of the POSH Act is that the legislature while drafting this law, failed to make it gender inclusive. In the coming age, it is essential to accept that crime can be committed by women and against men as well.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013, (Act 14 of 2013).