Recently, a petition has been filed in the Supreme Court challenging guidelines issued by the Bombay High Court in cases under the Protection of Women from Sexual Harassment (POSH) Act, 2013.
What is the PoSH Act?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the ‘PoSH Act’ is an Indian law enacted with the objective of making workplaces safer for women by preventing, prohibiting and redressing acts of sexual harassment against them in the workplace. The law was made effective in the whole of India on December 9, 2013, by the Ministry for Women and Child Development.
What is ‘Sexual Harassment’ under the Act?
Section 2(n) of the Act defines sexual harassment to include the following unwelcome acts:
i. Physical contact and sexual advances.
ii. A demand or request for sexual favours.
iii. Making sexually coloured remarks.
iv. Showing pornography.
v. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
These acts may be considered unwelcome if the woman expresses her discomfort upon the commission of these acts, or does not consent to them. Additionally, the following circumstances may amount to sexual harassment if they are connected with any of the acts or behaviour mentioned above.
i. Implied or explicit promise of preferential treatment in employment.
ii. Implied or explicit threat of detrimental treatment in employment.
iii. Implied or explicit threat about present or future employment status.
iv. Interference with work or creating an intimidating or offensive or hostile work environment.
v. Humiliating treatment likely to affect health or safety.
- The Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
- The Act also covers concepts of ‘quid pro quo harassment’ and ‘hostile work environment’ as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment
- The definition of “aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
- An employer has been defined as any person who is responsible for management, supervision, and control of the workplace and includes persons who formulate and administer policies of such an organisation under Section 2(g).
- While the “workplace” in the Vishakha Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve tele-commuting will get covered under this law.
- The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
- Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
- The Complaints Committees have the powers of civil courts for gathering evidence.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
- The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality.
- The Act requires employers to conduct education and sensitisation programmes and develop policies against sexual harassment, among other obligations. The objective of Awareness Building can be achieved through Banners and Poster displayed in the premises, eLearning courses for the employees, managers and Internal Committee members, Classroom training sessions, Communication of Organizational Sexual Harassment Policy through emails, eLearning or Classroom Training. It is recommended that the eLearning or Classroom Training be delivered in the primary communication language of the employee.
- Every organization must file an Annual Report to the District Officer every calendar year as prescribed in the Rule 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to ₹ 50,000. Repeated violations may lead to higher penalties and cancellation of licence or deregistration to conduct business.
- Government can order an officer to inspect workplace and records related to sexual harassment in any organisation.
- Under the Act, which also covers students in schools and colleges as well as patients in hospitals, employers and local authorities will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to 50,000 rupees.
Arguments of the Petitioner in recent case:
- Against Spirit of Article 19: The petitioner argued that a blanket bar is against the freedom of speech and expression enshrined under Article 19.
- The petition said a well-informed citizenry governs itself better.
- Right to free speech can be curbed only if it interferes with the administration of justice.
- Any injunction on the right of the people to know true and accurate facts is an encroachment on their right to information.
- Suppression of Women’s Voices: It can serve as a tool for powerful men to continue sexually harassing women and thereafter suppressing their voices on social media and in the news media.
- In matters of social justice and women empowerment, public discourse plays a crucial role in shaping the nature of legal entitlements that are delivered to women.
- The order may have a “ripple effect” and deter survivors from approaching courts as well as setting a dangerous precedent for trial cases.
- Against Principle of Open Court: The legitimise undue protection to sexual offenders in gross violation of principles of open court and fundamental rights of survivors.
- An open court serves an educational purpose.
- The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights.
- There is a need to implement JS Verma Committee recommendations on Sexual Harassment at the Workplace Act:
- Employment Tribunal: Setting up of an employment tribunal instead of an internal complaints committee (ICC) in the Sexual Harassment at the Workplace Act.
- Power to Form Own Procedure: To ensure speedy disposal of complaints, the committee proposed that the tribunal should not function as a civil court but may choose its own procedure to deal with each complaint.
- Expanding Scope of Act: Domestic workers should be included within the purview of the Act.
- The Committee said any “unwelcome behavior” should be seen from the subjective perception of the complainant, thus broadening the scope of the definition of sexual harassment.
- Responsibility of Employer: The Verma panel said an employer should be held liable if:
- he or she facilitated sexual harassment.
- permitted an environment where sexual misconduct becomes widespread and systematic.
- Where the employer fails to disclose the company’s policy on sexual harassment and ways in which workers can file a complaint.
- When the employer fails to forward a complaint to the tribunal
- The company would also be liable to pay compensation to the complainant.
- The panel opposed penalizing women for false complaints as it can potentially nullify the objective of the law.
- The Verma panel also said that the time-limit of three months to file a complaint should be done away with and a complainant should not be transferred without her consent.
- The Ministry of Women & Child Development has launched Sexual Harassment electronic Box (SHe-Box).
- It is an effort to provide a single window access to every woman, irrespective of her work status, whether working in organized or unorganized, private or public sector, to facilitate the registration of complaint related to sexual harassment.
- Any woman facing sexual harassment at the workplace can register their complaint through this portal.
- Once a complaint is submitted to the ‘SHe-Box’, it will be directly sent to the concerned authority having jurisdiction to take action into the matter.
Read more about SHe-Box
Source: The Hindu