POSH Act: Be(a)ware
The recent controversy of sexual misconduct with award winning sports persons by the chief of a sports federation in India, has brought sharp focus back to the effectiveness of implementation of provisions of the sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013 simply known as the PoSH Act.
In May this year, the Supreme Court observed that there were serious lapses in implementation of POSH Act by private and government sectors alike. Considering this, an insight into the POSH Act.
1992: Bhanwari Devi, a social worker in Rajasthan was gang raped for objecting to child marriage of an infant. The patriarchy, ostracization and apathy she faced at the hands of law, family and friends were unbearable. The accused were acquitted. However, she stood her ground and got recognized for her courage and commitment in fighting injustice. In many ways this was the start of women’s rights movement.
1997: Taking note of the various pleas filed by social activists and NGOs, Visakha NGO in particular, the Supreme Court observed that there was no concrete law protecting women against atrocities or guaranteeing gender equality. The SC laid down a set of guidelines called the Visakha Guidelines to be implemented until the enactment of an effective law. The guidelines, for the first time defined “sexual harassment”. Further it ensured shifting accountability from individual to institution and further laid down guidelines to deal with it. In laying down these guidelines, the apex court considered various fundamental rights guaranteed under the Constitution of India.
2000 to 2010: In this decade, the National Commission for Women (NCW) submitted drafts of the law. In 2007 the Protection of women against sexual harassment at workplace bill was introduced in Parliament which was periodically amended.
2013: The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) or PoSH Act was enacted on 9th December 2013.
PoSH Act 2013: Highlights
I. Main objectives:
The law was enacted to ensure a safe working environment for women at workplace where there is no sexual harassment of any kind. To achieve this, the Act envisions three aspects – (1) Prohibition (2) Prevention (3) Redress
II. Key definitions: Explained
- Sexual harassment: Any unwelcome sexual acts – physical contact or touch, sexual advances, making verbal or physical sexual remarks, showing pornography and any other verbal or physical conduct of sexual nature will amount to sexual harassment at workplace.Further, any explicit or implied promise of (i) preferential treatment or (ii) threat of ill treatment in exchange for sexual favours (iii) favourably or unfavourably affecting career prospects in exchange for sexual favours (iv) creating a hostile and uncomfortable work environment would constitute sexual harassment. Such sexual favours could be a by way of request or threat.
- Workplace: Any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for commute to and from the place of employment. The Act expressly covers women working from home or residence or dwelling place.
- Aggrieved woman: Any woman;
– Working or visiting any workplace either as regular employee or temporary employee or ad hoc employee or contract daily wages basis.
– Not only an employee, but any woman also working in any other designation(s) – probationer, trainee, intern, apprentice, contract worker, job worker will be considered an aggrieved woman.
– Such woman may not be hired directly by the employer. even if she is hired by a contractor with for the employer, she will be considered an aggrieved
III. Applicability of POSH Act:
The Act is applicable to all workplaces in –
- Government organizations, including Government company, corporations and cooperative;
- Private sector organisations, venture, society, trust, NGO or service providers etc. providing services which are commercial, vocational, educational, sports, professional, entertainment, industrial, health related or financial activities, including production, supply, sale, distribution;
- Hospitals/Nursing Homes;
- Sports institutes / Facilities;
- Places visited by the employee (including while on travel) including transportation provided by employer;
- A dwelling place or house;
- Any enterprise owned by an individual or self-employed workers engaged in the production or sale of goods or providing services of any kind;
- Any enterprise which employs less than 10 workers.
- All women working or visiting workplaces.
IV. Requirements to be complied by employer(s)
- Any employer with 10 or more employees must comply with the provisions of the POSH Act.
- An internal complaints committee (ICC) must be constituted. Such committee must be headed by a woman, have at least two employees and include an independent person / third party from outside from an NGO with experience in similar issues. Such person shall have at least 5 years of experience as a social worker, working towards women’s empowerment, addressing workplace sexual harassment issues besides knowledge in laws.
- Such employer shall display a notice in the organisation providing details of the protection given to female employees against sexual harassment.
- On receipt of complaint, the inquiry must be completed within 90 days from date of receipt of complaint. A final report must be submitted to the ICC or LCC within 10 days thereafter.
- An annual report shall be filed with the district officer at the end of every year indicating the number of cases and the manner in which they were addressed / redressed. The employer must organize awareness session / workshops to its employee force.
- Not constituting an ICC attracts penalty of up to Rs. 50,000 in the first instance.
- The district officer shall constitute a Local Complaints Committee (LCC) to enable women in the unorganized sector reports instances of sexual harassment.
V. Relief under POSH Act:
Relief under the Act could include compensation for mental agony, loss of peace, loss of career opportunities, medical / legal expenses. Interim relief could include transfer of such victim pending completion of inquiry to enable the complainant to be comfortable and not intimidated.
POSH Act: Challenges/short comings
- The awareness of POSH Act as a redressal mechanism is not at the expected level. While the corporate world has taken a giant stride and implemented committees, the same is not the case with the unorganized sector. It is this sector that requires maximum awareness given the number of uneducated work force.
- Social stigma of reporting such incidents is still widely prevalent across all sectors. Fear of stagnant career prospects makes several women not report incidents to the ICC.
- The constitution of ICC is not always as per the requirements of the POSH Act. This is due to lack of experienced and experts in the field.
- There is no officer or committee that can be held accountable for non- implementation of recommendations of the ICC. As a result, the whole exercise of an inquiry and report submitting remains a mere formality.
POSH Act: Directions by the Supreme Court in 2023
While disposing off a writ petition filed by the professor at a university for sexual misconduct with his students, the Apex Court observed that there were procedural irregularities in conduct of the inquiry based on which the professor was terminated from the university. While arriving at the judgment on 12th May 2023 in the case (Aureliano Fernandes Vs State of Goa Civil Appeal No. 2482 of 2014), the Supreme Court laid out the following directions for the effective implementation of the POSH Act:
- The Central and state governments must undertake timebound exercise to verify whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, and that the composition of the said Committees are strictly in terms of the provisions of the PoSH Act.
- Ensure that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies are made readily available on the website of the concerned Authority/Functionary/ Organisation/Institution/Body, as the case may be. The information furnished shall also be updated from time to time.
- A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes.
- Authorities/ managements/employers shall take immediate steps to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and submission of the report.
- Regular orientation programmes, workshops, seminars, and awareness programmes to upskill members of the ICCs/LCs/ICs and educate women employees and women’s groups about the provisions of the Act, the Rules and relevant regulations by authorities/management/employers.
- The National Legal Services Authority(NALSA) and the State Legal Services Authorities(SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar.
- The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules.
- A copy of this Judgment shall be circulated to all departments of the government. It shall be the responsibility of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued.
- The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transmit a copy of this judgment to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries, and the Engineering Council of India for implementing the directions issued.
- Member-Secretary, NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States.
- The Chairperson, Bar Council of India and the Apex Bodies mentioned in sub-para (9) above, shall in turn, transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be.
The Way Ahead
While there have been instances of false complaints as well, it is to be noted that POSH is by far the only corporate legislation governing women at workplace from sexual harassment. Instances of sexual harassment are subjective from person to person. Effective implementation of the Act will encompass customizing solutions according to the need of each women worker. Awareness, courage, objective and time bound handling are key to ensure effective implementation of the POSH Act.
For the full text of the POSH Act: https://wcd.nic.in/sites/default/files/Handbook%20on%20Sexual%20Harassment%20of%20Women%20at%20Workplace.pdf
For full text of 12th May 2023 Judgment: