Introduction.
The world has gone through drastic changes in the past one century, long gone are the days when men used to be the sole bread winner of a family. There has been a large influx of women in the professional sphere of life; however, this large influx of women into the mainstream workforce has also put them at greater risk of sexual harassment at their workplace.
Sexual harassment at workplace is a form of gender discrimination which violates a woman’s fundamental rights to equality and right to life & personal liberty as guaranteed under Articles 14, 15 and 21 of the Constitution of India. At the same time, every form of sexual harassment is a detriment to the dignity of a woman.
The very first legislation which has been enacted by the Ministry of Women and Child Development in India to tackle the issue of sexual harassment of women at workplace i.e. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was brought into force in India in the year 2013, almost after 16 years from the very first guidelines provided by the Supreme Court of India in Vishakha vs. State of Rajasthan (AIR 1997 SC 3011).
The Act.
Even though, the Constitution of India guarantees gender equality and prohibits any sort of gender discrimination vide its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles, however, sexual harassment faced by women at their workplace was recognised for the first time in India by the Supreme Court of India in the landmark judgement mentioned supra. In this case, the Supreme Court framed certain guidelines and issued direction to Government of India to enact an appropriate law for combating the sexual harassment faced by women at their workplace. However, the POSH Act, came into force after 16 years since the judgement of the Hon’ble Supreme Court in Vishakha vs State of Rajasthan.
As per the guidelines laid down by the Hon’ble Supreme Court in Vishakha Judgement “Sexual Harassment” includes such unwelcome sexually determined behaviour (whether directly or by implications) as:
- Physical contact and advances
- A demand or request for sexual favour (quid pro quo)
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The POSH Act adopts the above-stated definition of sexual harassment as provided by the Supreme Court in Vishakha Judgement.
The POSH Act has been brought into force with the objective of preventing and protecting women against sexual harassment and to ensure effective redressal of complaints of sexual harassment. The POSH Act aims to provide every woman (irrespective of her age or employment status) a safe, secure and dignified working environment, free from all forms of harassment.
Key definitions.
Who is an employee?
The definition of an ‘employee’ provided under the POSH Act is fairly wide to cover regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract labourers, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.
What is a workplace?
Similar to the definition of employee, the POSH Act defines “workplace” broadly and covers almost every place where an employee may have been deployed for official purposes. The POSH Act has brought in the concept of “extended workplace”. As per the provision of POSH Act “workplace” includes (i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate government or the local authority or a government company or a corporation or a co-operative society; (ii) any private sector organisation or a private venture, undertaking enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial health services or financial activities including production, supply, sale, distribution or service; (iii) hospitals and nursing homes; (iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto; (v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey; and lastly, (vi) a dwelling place or a house.
As is evident from above, the POSH Act has included several places under the umbrella of workplace, the purpose of such broad-based definition of workplace is to cover each and every place where an employee may be performing her official duties.
Who is an Employer?
An employer under the POSH Act means –
- In relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be.
- Any person responsible for the management, supervision, and control of the workplace.
- Any person who discharging contractual obligations with respect to his or her employees.
Aggrieved Woman.
Under the POSH Act, an aggrieved woman has been defined as:
- In relation to a workplace, a woman, of any age whether employed or not, who alleged to have been subjected to any act of sexual harassment by the Respondent; and
- In relation to a dwelling place or house, a woman of any age is employed in such a dwelling place or house.
Internal Complaints Committee.
One of the most important features of the POSH Act is that it requires every employer to set up an “internal complaints committee” (ICC) at each office or branch office, of any organization, where 10 or more people have been employed by the employer to hear and redress grievances pertaining to sexual harassment. Failure to constitute an ICC leads to imposition of a fine amounting to INR 50,000/- under the POSH Act.
Even though the POSH Act nowhere mandates the registration of ICC, however, the Department of Women and Child Development of Telangana vide circular dated 07.01.2019 mandated the registration of the ICC in the prescribed form with the Sexual Harassment Electronic Box (T-She-Box)
Constitution of ICC.
Every ICC shall comprise of at least 4 (four) members and their constitution shall be in the following manner:
Presiding Officer: The ICC shall be presided over by a woman who is working at a senior level at the workplace.
Members: Not less than 2 members (who are committed to the cause of women or who have had experience in social work or have legal knowledge) from amongst employees.
External Member: An external member shall be appointed from a Non-Governmental Organization or an Association committed to the cause of women or person familiar with issues relating to sexual harassment.
Further, at least 50% of members of the ICC shall be women and their tenure shall not exceed 3 years. At least 3 members including the Presiding Officer shall be present to conduct an inquiry into any complaint filed by a woman employee.
Power of the ICC.
The POSH Act stipulates that ICC shall be vested with the same powers as of a civil court under the Code of Civil Procedure, 1908, while inquiring into a complaint of workplace sexual harassment, in respect of:
Summoning and enforcing the attendance of any person and examining him on oath; and
Requiring the discovery and production of documents; and
Any other matter which may be prescribed.
Complaint Mechanism.
Any aggrieved woman who intends to file a complaint with the ICC, is required to submit six copies of her complaint along with supporting evidence, documents, names and addresses of any witness to the ICC, within 3 months from the date of the incident and in case of a series of incidents, within a period of 3 months from the date of the last incident. In case, the aggrieved woman files a complaint with the ICC after a lapse of 3 months, then the ICC shall only proceed with the complaint if the aggrieved woman demonstrates sufficient cause in delay in filing of the complaint.
Under the POSH Act, if an aggrieved woman due to some incapacity is unable to file a complaint with the ICC on her own, in such a case, friends, family, co-workers or even counselors (psychologist and psychiatrist) can file a complaint on her behalf with the ICC.
The POSH Act does not prescribe any specific format for filing of complaint with the ICC.
The ICC shall upon the receipt of the complaint, shall provide the same to the Respondent within 7 days and seek a reply from the Respondent to the complaint along with supporting evidence, documents, names, and addresses of any witness to the ICC, within 10 days.
The ICC is required to conduct an inquiry and complete the same within 90 days from the receipt of the complaint. Afterwards, the ICC shall issue the inquiry report within 10 days from the date of completion of inquiry. Post successful inquiry, the ICC shall make observations and suggestions to the employer and the employer shall be bound by such suggestions made by the ICC and shall act on them within 60 days.
If any party is aggrieved by the decision of the ICC, then the said aggrieved person shall appeal the said decision of the ICC within 90 days from the date of the decision.
Duties and Obligations of an Employer.
In addition to the constitution of the ICC and redressal of the complaints filed with the ICC in a time bound manner, the POSH Act also stipulates following duties and obligations upon the Employer:
- The Employer shall provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
- The Employer shall display at any conspicuous place in the workplace, the penal consequences of sexual harassments, and the order constituting the ICC;
- The Employer shall organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the ICC in the manner as may be prescribed by the Employer;
- The Employer shall provide necessary facilities to the ICC to deal with the complaint and conducting an inquiry;
- The Employer shall assist in securing the attendance of respondent and witnesses before the ICC;
- The Employer shall make available such information to the ICC, as it may require having regard to the complaint made under sub-section (1) of Section 9 of the Act;
- The Employer shall aid the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being force;
- The Employer shall cause to initiate action, under the IPC or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
- The Employer shall treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
- The Employer shall monitor the timely submission of reports by the ICC.
Conclusion.
Even though the Act has been in force for more than 9 years, the incidents of sexual harassment of women at their workplace are yet to be completed curbed. Thus, the real objective of the Act is yet to be achieved to its fullest effect, in order to achieve the key goal for which the Act has been implemented, there is a need for compliance of the various provisions of the Act, such setting up of Local Complaints Committee by the State Government, the Internal Complaints Committee by the public sector enterprises along with private sector entities. Furthermore, there is a need for large scale awareness among the people (working in formal as well as informal sectors) about the rules / regulations of the POSH Act.
It can be safely concluded, that the POSH Act may not have fully achieved the goals for which it has been implemented, but the Legislature by bringing out such an important legislation in existence, has taken a right step in the right direction.
Vishal Singh, Senior Associates
Maheshwari and Co.
