The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (also referred to as POSH) is a legislation that found genesis in the case of Vishaka v. State of Rajasthan. The Supreme Court of India proposed the Vishaka guidelines in 1997 as an attempt to alleviate the problem of women being sexually harassed at the workplace. India finally enacted the POSH Act on 23rd April 2013.
Judicial activism reached its peak in the Vishaka case. The landmark Vishaka decision recognised the necessity for appropriate and effective laws to address sexual harassment accusations. Hence, Vishaka guidelines were instituted to protect women from being sexually harassed at the workplace. The courts relied on certain conventions and norms at the international level to come up with the guidelines; like Articles 11 and 24 of the Convention of Elimination of All Forms of Discrimination against Women (CEDAW) to interpret articles 14, 15, 19, and 21 of the Constitution of India, 1950. The court also referred to the Beijing Statement of Principles on the Judiciary’s independence in the Lawasia region; to make and implement laws in the absence of a legislative framework.
Article 19 (1) g of the Constitution guarantees all citizens the right to practice any profession or carry any occupation of their choice. This right must be exercised with human dignity, thus sexual harassment under this article is prohibited by law. On the grounds of breaching women's right to gender equality, Article 14 has been invoked to prohibit sexual harassment of women at work. Under Article 16 (2), sexual harassment at a workplace has been seen as gender discrimination. Article 21 guarantees the right to life and personal liberty.
The Vishaka guidelines were superseded by the POSH Act.
Summary of the POSH Act
POSH filled the void and statutory vacuum of the absence of a stringent law against sexual harassment of women at work. It ensures the women in India, regardless of their age or job level, have access to a workplace free of harassment. It lays down the meaning of the term sexual harassment; it also provides for a redressal mechanism that is available to the woman alleging such an action. It gives the meaning of a ‘workplace’ as a traditional office setup, which also includes the organized and unorganized sector, and non-traditional workplaces like telecommuting.
One of the most important features of POSH, applying to the organized and unorganized sector, is the setting up of an Internal Complaints Committee (ICC)- “an organization having over 10 employees must have an ICC.”
It’s also a mandate for a Local Complaints Committee (LCC) to be set up, “by the government of India for the district level of the unorganized sector as well as for the institutions having fewer than 10 employees.” These committees are set up for the redressal of grievances.
The ICC and LCC have the authority of a civil court when it comes to gathering evidence for a quick resolution of a case. POSH states that if a woman has been sexually harassed at her workplace and intends to file a complaint, she shall do the same by providing six written complaints of the samee. This complaint must be filed within three months of the harassment, however, such a time limit can be flexible if allowed by the ICC and LCC depending on the situation. The committees may delegate the respondent's responsibility for the victim to another employee, transfer the victim to another branch, or award her a three-month leave of absence.
Within 90 days, the committee must complete and undertake an investigation into the allegation.
On concluding the same, it must be sent to the employer, and subsequently, an action must be taken on the basis of the report made, within a period of 60 days.
Non-compliance with any requirement of this act, such as failing to establish an ICC, can result in a fine of up to Rs. 50,000, and repeated breaches can result in the organization's licence being revoked. POSH also requires and encourages to sensitize and educate its employees, to establish policies and a framework against the bane of sexual harassment via banners, posters, eLearning, etc.
The implementation of POSH was the need of the hour. This act was hailed as a great move that would help to eliminate the scourge of workplace sexual harassment for women. Yet, it is not without any flaws or loopholes.
A huge flaw in POSH is that the law which found genesis in the struggle of a woman belonging to the unorganized sector, now hugely applies to the organized section, since it clearly states that the organization must have more than 10 members for an ICC to be established. For example, the #MeToo movement hardly saw the participation of women from the unorganized sector. Women belonging to the informal sector form a large chunk of working women in our country, however, these women belong to the most vulnerable group. ICC is constituted of informal and private organizations. LCC, however, has jurisdiction over an entire district. But there is a lack of seriousness on the government’s part to supervise and effectively administrate the LCCs, which exists in only 29% of our country. The only recourse for women belonging to the informal sector is LCCs, which in itself is not properly functioning. It is the duty of our lawmakers to safeguard that women everywhere have a proper legislative framework to ensure that they are protected from being sexually harassed, and there are provisions set forth which provide them with relief, in case such an incident occurs.
According to POSH, only female employees undergo sexual harassment. If a male or transgender employee is sexually harassed, he or she will not be allowed to seek remedies under this law. While the act relies on Articles 14 and 15 to bring about gender equality, it fails to take into consideration that male employees suffering from sexual harassment have no specific legislation to seek redressal.
POSH also views sexual harassment at the workplace as a “women’s issue”, and not as a labour issue. This has an inherent problematic effect since shifting the issue onto women, showcases women to be the problem. It casts away the real problem- i.e. hostile workplaces. To make a workplace more inclusive, it is critical to shift this mindset and embrace it as a labour problem.
India has come a long way from having no precedent or guidance on the prevention of sexual harassment to having a set and stone legislative framework. However, this doesn’t mean that POSH is perfect and its application has been impeccable. From the aforementioned analysis, it’s obvious that even a revolutionary law such as this has had serious social implications. Even though this law was a step forward, it still requires awareness, sensitization, and widespread implementation. Issues such as inadequate POSH implementation in the unorganised sector owing to social stigma, uncertainty, and a lack of understanding must be investigated and successfully addressed. The ultimate objective is to provide a safe working environment free of sexual harassment for all employees.
~Authored by Aishani Navalkar