POSH Act, 2013
POSH Act is a historical piece of legislation in India and is also known as The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
Historical Context of Sexual Harassment in India
India being a patriarchal society, faces the dubious distinction of having a very deep rooted history of sexual harassment in the society.
In old times, the women were mostly confined to the four walls of their homes, not permitted to get educated or work. There were many instances of sexual harassment, yet, the women had to keep quiet and bear the brunt as coming out in the open would tarnish their image.
The perpetrators of such acts were generally not censored and no law was there to protect the sanctity of women.
Background of the POSH Act
Gradually the society opened up education for girls and with time women started working in all kinds of organizations. With education the women in India became empowered and gained some foothold in the workplaces but ironically, cases of sexual harassment at workplaces were rampant and widespread.
There was a call for a strong law to curb these acts from all sections of the society. Here we shall examine in brief the foundations of the POSH Act, 2013.
(a) Vishaka vs State of Rajasthan (1997)
The framework of POSH Act was laid down in the landmark judgement by the Supreme Court in Vishaka vs State of Rajasthan (1997).
Bhanwari Devi belonged to a lower caste family and lived in Bhateri, a village in Rajasthan. In 1985, she enrolled as a ‘saathin’ (friend), which is a grassroots worker, as part of the Women’s Development Project (WDP) run by the Government of Rajasthan.
As part of her job, Bhanwari Devi spread awareness amongst villagers about issues related to land, water, literacy, health, etc. In 1992, Bhanwari took up the issue of child marriage which was illegal still widely practiced in villages.
During her campaign against child marriage Bhanwari intervened and tried to stop the marriage of a nine-month-old who was the daughter of one Ram Karan Gurjar. With the help of police and officials she was successful in stopping this marriage on the due date (although it took place the very next day).
This valiant act of Bhanwari did not go down well with men of Gurjar community and she and her family faced social and economic boycott. Not stopping at this, to teach her a lesson, her husband was beaten and even her employer was roughed up. As a consequence she had to quit her work.
However, on 22 September 1992, Bhanwari Devi was brutally gang raped by five men- all belonging to the same gurjar family whose daughter’s child marriage she had attempted to stop. The accused of men were arrested and tried in the court, but they had a lot of support from police and politicians. It was only when the print media highlighted her plight that women’s groups and other social organizations came forward to take up her case.
In spite of all her efforts to get justice, on 15 November 1995, the district and sessions court in Jaipur gave its verdict by dismissing the case and acquitting all the five accused.
Disappointed women activists and lawyers filed a Public Interest Litigation (PIL) in the Supreme Court of India under the collective platform of Vishakha. The judgment on this PIL in August 1997 gave for the first time the basic definitions of sexual harassment at the workplace and provided guidelines to deal with it and this resulted in what are popularly known as the Vishakha Guidelines.The main intention of the SC was to provide a platform for redressal and grievance mechanisms against workplace sexual harassment and this became the basic foundation of the POSH Act, 2013.
(b) UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), July 9, 1993
The POSH Act has taken from this convention, aspects of equality of women in the workplace, gender-specific violence, and unwelcome sexually-determined behaviour and adopted them to come out with a strong legislature.
(c) Article 14, 15 & 21 of the Constitution
The Act is grounded in these specific provisions of the Indian constitution:
- Guarantee of the right to life and liberty (Article 21)
- Right against discrimination (Article 14)
- Freedom to practice any trade or profession without hindrance (Article 19(1)(g))
Thus, drawing from these three major sources, the POSH Act was framed and came out as a powerful, protective tool for working women of all strata.
Brief of “The POSH Act, 2013”
After 16 long years of Vishakha Guidelines, the POSH Act came into force from 9 December 2013.
The Act is a right step in ensuring safe workplaces for women as it requires all companies (who have more than 10 employees) to constitute an Internal Committee (IC) in the prescribed manner and to receive and redress complaints from women in a time-bound and confidential manner.
1) Definition of the term “Sexual Harassment”
The Act defines sexual harassment as:
a) Physical contact and advances
b) Demand or request for sexual favors
c) Making sexually colored remarks
d) Showing pornography
e) Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.
Apart from these, the Act also states that the following circumstances may constitute sexual harassment (whether implied or explicit):
a) Promise of preferential treatment in employment
b) Threat of detrimental treatment in employment
c) Threat about present or future employment
d) Creating an intimidating or offensive or hostile work environment
e) Humiliating treatment potentially endangering health or safety
(i)Types of Sexual Harassment
(A) Quid Pro Quo: Means ‘something for something’
Ex: Promising a promotion in lieu of a sexual favor
(B) Hostile Environment: Involves unwelcome & unwanted conduct
Ex: Spreading rumors to damage one’s reputation
(ii)What Doesn’t Constitute to Sexual Harassment
- Following-up on work absences
- Requiring performance to job standards
- Normal exercise of management rights
- Working conditions
- Constructive feedback
2) Definition of the term “Unwelcome’’
- When the recipient does not consent or disapproves
- Even if the victim does not complain, it doesn’t imply that it is welcom
- Some comments are blatant & rude, inherently offensive: always deemed as unwelcome
It is important to note that as an unwelcome sexual behaviour is a subjective experience and therefore, mostly the legal analysis depends on the complainant’s perspective. In such matters the intent of the doer is unimportant; what matters is the impact on the receiver.
3) Definition of “Workplace”
Interestingly, the Act covers a very wide range for the term workplace and introduces the concept of an “extended workplace.”
The Act explains that apart from the office of the employer or employee, any place that is visited by the employee during the course of his/her employment, will also constitute a workplace. It extends beyond this, and includes any transportation provided by the employer for the purpose of commuting to and from the place of employment too. Thus, an official event in a social setting, that is endorsed or financed by the employer, will also be deemed a workplace under the POSH Law.
4) Definition of an “Aggrieved Woman”
The Act takes a wide view of an “aggrieved woman” and specifies that a woman who has been subjected to sexual harassment may of any age, whether employed or not.
Thus, it is very clear that the woman must not have to be an employee, she can even be a customer or a visitor who feels sexually harassed at any workplace, and therefore, can seek protection under POSH Law.
5) Definition of an “Employee”
In terms of the definition of an “employee” the Act once again has taken a fairly wide range and covers regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract workers, coworkers, probationers, trainees, and apprentices.
6) Definition of an “Employer”
The Act defines an employer to be any person who is responsible for the management, supervision and control of the workplace and management. It also includes a person or board or committee in an organization which is responsible for formulation and administration of policies.
Duties of Employers
The POSH Act prescribes certain duties of the employer to provide a safe working environment for persons coming in contact with the workplace. Set out below are some of the duties which are required to be performed by the employers:
- Provide a safe working environment
- Display at any conspicuous place at the workplace the penal consequences of workplace sexual harassment and the order constituting the IC
- Conduct training programs from time to time to create awareness and sensitize employees at all levels
- Conduct orientation programs for the members of the IC
- Provide necessary facilities to the members of the IC
- Assist the aggrieved woman to secure justice under the IPC
- Monitor the timely submission of the reports by the IC
Furthermore, an employer has to fulfill the following under the Rules:
- Frame and publish policies of the company related to the POSH Law on the internet giving the contact details and names of the IC members
- Carry out programs for IC members for capacity building and skills development
- Generate awareness among employees by use modules published by the state governments
As a best practice, since the scope of POSH Law extends beyond employees, the companies must put up POSH Law related posters in conspicuous places in the workplace like the company entrance, reception, and meeting or conference rooms. This will help deliver the message to all- like customers, consultants, etc. who visit the company premises.
Internal Committee (IC)
The Internal Committee (IC) (originally called ICC) is the most important component of the POSH Act as on it depends the entire redressal system. Thus, the Act gives a detail of its composition, rules and regulations.
As per the Act, an employer (having 10 workers or more) is required to set up an Internal Committee for the redressal of ‘sexual harassment’ complaints. The organization’s IC shall be entrusted to regulate and administer complaints on sexual harassment and additionally, it shall submit an annual report to its employer and the concerned District Officer.
(a) Composition of Internal Committee (IC)
The Act mandates that the Internal Committee (IC) should have a minimum of four members as under:
(i) The Presiding Officer – who should be a woman employed at a senior level at the workplace;
(ii) Two Internal Members- who should be from amongst the employees of the company and are committed to the case of women or who have had experience in social work or have legal understanding; and
(iii) One External Member- who is acquainted with the issues relating to sexual harassment and should be from a non-governmental organization or an association committed to the cause of women or a person.
The POSH Act regulations demand that all committees constituted under it must have at least 50% representation of women. The Presiding Officer and the other members of the complaints committee are required to hold office for a period of not more than three (3) years from the date of their appointment.
The company should publish and display at a prominent place in the workplace as well as on the website of the company (if any) the list of members of IC and their contact details.
(b) Redressal Process
(i) A compliant of sexual harassment may be lodged by any aggrieved female to the Internal Committee in writing within three months of the occurrence of the incident. In case there is a series of incidents, then it should be filed within three months of the occurrence of the last incident.
The three months time limit may be extended by the Internal Committee which shall assess if there existed circumstances which prevented the aggrieved female from filing the complaint. If convinced, then an extension for a maximum period of three months shall be given to the aggrieved female for filing the complaint.
(ii) In case an aggrieved female is not able to make a complaint due to her being physically or mentally incapacitated, or death or any other reason, then the POSH Act provides that her legal heir or such other person as may be prescribed, may make a complaint.
Furthermore, a supervisor or manager is to report immediately to the IC if he/she is aware of a conduct which is inconsistent with this policy or if he/she receives any report of sexual misconduct.
(iii) The complaint should contain all the material and relevant details concerning the alleged sexual harassment, for example, name of the accused, details of the incident, place of the incident, names of witness (if any).
(iv) The Internal Committee has been bestowed with the power to settle the matter between the two parties through conciliation, if the aggrieved woman puts in a request. This route can be opted for before the initiation of an inquiry. And in such a settlement the IC must make sure that no monetary settlement has been made the basis of conciliation.
In case a settlement is arrived at, then the IC must record the details of the settlement and forward it to the management of the concerned organization. A copy of the settlement is to be provided to both- the aggrieved woman and the accused.
The Sexual Harassment law specifies that after a successful settlement has been made between the two parties, there shall be no further inquiry by the Internal Committee unless the terms of the settlement are broken or not followed by either of the two parties.
(c) Inquiry Process
The Act describes in detail the inquiry process to be followed by the IC.
(i) In the event that there is no successful conciliation, the ICC shall proceed with the inquiry under the POSH Act.
(ii) A copy of the complaint should be sent to the accused within 7 days of receipt of complaint by the aggrieved woman. The accused is required to file a reply to the complaint within a period of 10 days from the date of receipt of the complaint.
(iii) The aggrieved woman and the accused, both will be given equal opportunity to be heard, during the course of inquiry by the Internal Committee. To ensure the freedom of expression and also to provide an atmosphere free of intimidation both shall be called separately. But neither of them will be allowed to be represented by any legal practitioner until the inquiry is conducted by the IC.
(iv) Further, according to the POSH Act, at least three members from the IC must be present during the inquiry.
The inquiry proceedings must be completed within 90 days from the date of receipt of complaint, and the IC must communicate its findings and its recommendation to both the parties and the company within 10 days of the completion of the inquiry.
(v) The report should contain of the following elements:
(a) description of all aspects of the complaint;
(b) description of the process followed;
(c) description of the background information and documents that support or refute claims of both the parties;
(d) an analysis of information obtained;
(e) findings; and
(vi) The Internal Committee can terminate the inquiry proceedings or to give an ex party decision on the complaint, if either of the parties fail to present themselves for three consecutive hearings.
(vii) During the pendency of an inquiry, on a written request made by the aggrieved woman, the IC may recommend to the employer to:
(a) transfer the aggrieved woman or the accused to any other workplace; or
(b) grant leave to the aggrieved woman up to a period of three months provided that the leave granted to the aggrieved woman shall be in addition to the leave she would have been otherwise entitled.
(viii) The Internal Committee is free to adopt its own procedure for carrying out the inquiry having regard to the sensitive nature of the complaint and the respective position of the parties.
In case the aggrieved woman or the accused is not satisfied with the decision of the IC then they may go for an appeal to the appellate authority within ninety days from the date of receipt of decision of the Internal Committee. Either of them can also appeal in case of non-implementation of the recommendation of the IC.
(e) Penalty for Non-Compliance
An employer can be subjected to a penalty of up to INR 50,000 for:
- Failure to constitute Internal Complaints Committee
- Failure to act upon recommendations of the Complaints Committee
- Failure to file an annual report to the District Officer where required
- Contravening or attempting to contravene or abetting contravention of the Act or Rules.
As the onus of safe campuses lies squarely on the employers of companies and organizations, most of them have started to put in sincere efforts to make the workplace safer for women.
The enforcement of the POSH Act has brought about great awareness about gender sensitization and sexual harassment and with this more and more women are coming up to complaint against it.
The strict implementation has increased the level of awareness among employees and is now looked upon as a social responsibility by all to keep their premises safe.
In a recent development the forward looking entities have started framing sexual harassment laws which cover a wider range than prescribed in the POSH Act and are keeping them gender neutral.
In fact, a safe working place is the fundamental right for all, irrespective of the gender, and by providing this an organization can ensure better productivity and profit.
Thus, to sum up we can state that prevention of sexual harassment must be the primary motive of all organizations, but if unfortunately an employee’s modesty is outraged, then a fast and effective redressal system must be in place. By saving its workforce from sexual harassment, the organizations will be able to safeguard their reputation in the market.