Sexual Harassment of women/girls at the workplace has been alive for several years, right from the time women were emancipated and stepped out of the safety of their homes and tried to figure alongside men. This wasn’t easily accepted by the males who thought these women were available and free with their favors which they really thought belonged within the four walls of their homes and within the kitchen. The role of girls was essentially considered to be that of a procreator and homemaker. There was a change within the attitude of girls but no such change within the men. At the workplace, there have been no rules or guidelines specified on what constituted harassment and what the ladies could do about it. If a lady was harassed at the workplace, her course of redressal was to lodge a complaint under Section 354of the Indian legal code 1860, which addressed criminal assault of girls to outrage a woman’s modesty, and section 509 that punishes a private for using words, gestures or act intended to insult the modesty of any woman. However, the ladies were hesitant to require such a drastic step because it could backfire on them and that they could lose their jobs and reputation, ours being a male-dominated society.

Vishaka v/s. State of Rajasthan

During the 1990’s Rajasthan government employee, a Dalit woman Bhanwari Devi who tried to stop child marriage, which was a requirement as a part of her job performing on the Women’s Development Program, was gang-raped by the landlords of the Gujjar Community. These landlords were enraged and to show her a lesson that they had raped her. As consistent with them she came from a coffee community and that they were the feudal patriarchs and she or he had no right to try to do anything or speak up against them. The victim Bhanwari Devi didn’t get justice and therefore the landlords went scot-free. A woman’s rights group called Vishaka was enraged by the choice of the court and that they filed a PIL within the Supreme Court of India. This incident revealed and brought the hazards and evils faced by women at the workplace on each day to day basis to the Supreme Courts’ notice.

In 1997, the Supreme Court passed the landmark judgment within the above case and laid down guidelines to be implemented in cases of harassment at the Workplace, which were referred to as the “Vishaka Guidelines”. The Court felt that this was necessary to uphold the rights and dignity of girls and for gender equality and therefore the right to figure with dignity under Articles 14, 15, 19 (1)(G) and 21 of the Constitution and safeguard the interests of girls at the workplace.

These Guidelines for the primary time defined the precise meaning of harassment and what acts constituted harassment. It specified the procedure for the victim and therefore the respondents, the punishment or penalty and therefore the employer’s obligation towards the cause, prevention and redressal.

POSH Act

However, there have been many lacunas within the guidelines. Many employees weren’t included within the employee list and the workplace wasn’t clearly defined. There was ambiguity and lots of organizations didn’t follow the Vishaka guidelines. Considering the importance of girls at the workplace and therefore the effects of harassment, India’s first legislation “Prevention of harassment of girls at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted. (POSH). it had been enacted under the Ministry of girls and Child Development. Harassment created not only an insecure and hostile environment but also affected the woman’s performance at work. It also affected their social and economic process and put them through tons of physical, emotional, and psychological stress. This Act was more specific than the Vishaka Guidelines and stated the precise meaning of harassment, employee, workplace, the role and responsibility of the Employer, the interior Complaints Committee, complaint processes and procedures, penalties and redressal, actions for preventing such cases by holding training and workshops. it had been mandatory for all organizations with 10 or more employees to line up an indoor Complaints Committee. An action might be taken just in case of noncompliance.

Despite the Act being passed, there have been still many cases of harassment and unfortunately, an outsized percentage of these went unreported. Despite the advances in society, many ladies weren’t reporting such cases-

• They weren’t beyond what constituted harassment because the employer wasn’t taking this seriously and there have been no training and updates on exact meanings.
• Even during this day and age, women weren’t confident enough to complain about these issues especially just in case where the harasser was the Boss himself or fairly often a senior, out of fear of losing their job and reputation
• The employers had not formed the interior Complaints Committee or the workers weren’t updated and not conscious of whom to complain to or of the complaint and redressal procedures.

Most companies ensured compliance but overlooked the spirit of the law. The processes were in situ, ICC was found out and training was imparted. However, there was no shift within the attitude of the stakeholders. This caused the #Me Too movement, which had a greater impact than the Act itself. It made the organizations stay up and act to avoid reputational risks and loss in branding.

#METOO Movement

In 2006, Civil rights activist Tarana Burke used the phrase ‘” ME TOO” to boost awareness on the existence of harassment. She wanted to spread the message to the lady survivors that “You’ve been heard and understood”. However, in 2017 actress Alyssa Milano helped start the present phase of the movement to stress the “magnitude of the problem”. It became a grassroots campaign for ladies of color who experienced sexual assault.

In India, the movement was started in 2018. This on social media became a shout, a semaphore, as all women shared their experiences of being harassed by male coworkers, supervisors, or people they met within the course of their work. the most important advantage of it’s been to bring the difficulty to the fore. it’s not a problem to be discussed in hushed tones. because it is claimed, “what wasn’t heard wasn’t seen”. it’s most vital to voice something, be heard, and only then can it get redressed. Now because of the Me Too era, organizations haven’t any choice but to take a seat up and listen and take quick action. Because if they don’t, there’s a public platform for ladies to make sure they’re heard.

The question is – What actually changed after this Me Too movement. What has been its impact on the luxury Act which was already alive since 2013?

This movement was basically to boost awareness of the prevalence and effect of harassment despite all the laws being in situ. it had been a movement to make a change and end harassment. It provided courage and support to survivors. Many powerful men lost their jobs THOUGH it had been not really about getting men fired.

#Me Too got the organizations awakening to dust the harassment policies out of their bottom drawers and refocusing on training.

The silence was shattered. The movement marked the start of a cry against harassment. All those that finally spoke outdid to urge justice or be heard or in solidarity with other women. It saw women beginning of the closet and emboldened. many ladies have taken the brunt of the patriarchal male behavior for too long where they were considered as playthings and sometimes senior males at that. It made women wary of complaining despite the complaint processes being in situ.

Changes that Have Taken Place as a Results of #Me Too-

• MeToo increased awareness about the prevalence of harassment at work and redress measures available.
• Me Too movement stirred companies into action. There was alertness across corporate India. It jolted them out of their passiveness.
• All companies took note to suits the luxury Act which makes it mandatory for companies with quite 10 employees to line up an indoor Complaint Committee which had not been taken seriously earlier or totally ignored.
• There was renewed specialization in doing sessions with women, getting their feedback on the office situation. Giving training on aspects of harassment and getting feedbacks on any complaints and reassuring them of support.
• Many Companies now feared negative publicity and undertook due diligence of all senior person profiles and encouraged self-reporting.
• This saw a rise in complaints by almost 14-15% in 2018 -2019, because of the movement and increase in support by organizations fearing reputational risks. The NCW saw an increase in complaints from 570 in 2017 to 965 in 2018.
• Organizations realized that if the ladies didn’t get an opportunity or option to complain, they’ll speak call in public, on social media, or attend the police.
• Women were feeling empowered. Companies started doing more and more and ladies employees became more confident.
• Many companies have gone beyond the legal requirements and put gender-neutral policies in situ.
• The new employees also who were normally the targets are emboldened by this movement and upfront asked about the ICC and complaint procedures.
• Earlier various service-oriented industries like advertising, travel, hospitality, even cinema where they were very complacent about the liberal attitude and a few actions and gestures were considered normal saw an attitudinal change.

• It has caused fear within the minds of perpetrators, who will consider before doing something.
• It motivated organizations to unravel harassment issues.
• Many skeletons are beginning of the cabinet, all this is often being taken seriously by ICC and victims are becoming a justice.
• Even the lower-level employees are feeling empowered. Several states have passed laws prohibiting nondisclosure agreements.
• In many counties, more workers have are available in the ambit of “employees”. Many domestic and farmworkers are included.
• Some states have expanded their law to hide independent contractors.

For many, it’s expensive to cause a suit, the employers are providing all assistance to the victims to finish the complaint procedures and if need be to file FIR. Some organizations have found out legal funds to help such victims. YES, the #ME TOO movement has definitely impacted the implementation of the luxury ACT. But why should we await such movements to accelerate the subsequent of laws which are our rights within the first place? we’d like to seek out ways to finish such abuse and uphold the dignity of the ladies.

An excellent thanks to ensure fairness to women and gender equality is to possess more women within the organization at various levels. More the ladies, more will their voice gather strength which can cause strong social policy. The movement of the crowd always prevails. it’s up to us how we stand tall and move forward.

There are numerous associations that help people fighting inappropriate behavior at the workplace by giving them a medium to retaliate using workshops and awareness modules. Yet, the essential point here is, are those workshops or preparing really leaving an impact on the disposition of representatives? Do the workshop modules depict the truth of Sexual Harassment? There are rare kinds of people that aren’t kidding about really making the work environments safer for ladies representatives.

Repercussions for Not Complying with the PoSH Act

The PoSH Act takes a firm stand against non-compliance with its provisions. If an employer fails to either constitute an indoor Committee or discharge any of the opposite duties placed upon them under the act, they shall be punished with a fine which can reach fifty thousand rupees (Rs. 50,000). In the event an employer contravenes the provisions of the PoSH Act a second, they’ll be either fined twice the quantity because of the fine for the primary contravention or face cancellation of their license, permit or registration for carrying on their business or activity.

Who is Included for Benefits under the Act?

The PoSH Act protects women within the workplace from harassment. All women employees no matter whether:

• Who are employed regularly, temporary, unplanned or daily wage basis
• Who are employed directly or through an agent or a contractor.
• Who are employed with or, without the knowledge of the principal employer.
• Who are employed for remuneration or on a voluntary basis.

The above-mentioned are protected under the PoSH Act. The PoSH Act also applies to women contract workers, probationers, trainees, apprentices, and interns.

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The Indian Sexual Harassment Act or POSH Act 2013 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 workplace 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 persecuted, as there was no law to protect the sanctity of women.

Background of the POSH Act or Sexual Harassment Law

Gradually the society opened and started giving attention to educating girl child. With time, women started working in all kinds of organizations. The women in India became empowered through education 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 sexual harassment law to curb these acts from all sections of the society. Here we shall examine in brief the foundations of the POSH Act, 2013 which was brought as a tool to eradicate harassment of women at workplace.

(a) Vishaka vs State of Rajasthan (1997)

The framework of this women harassment act which was termed as POSH Act was laid down in the landmark judgement by the Supreme Court in Vishaka vs State of Rajasthan (1997). Another case was of Bhanwari Devi.

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. Consequently, 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.

Despite 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 Vishaka.  The judgment on this PIL in August 1997, for the first time, gave the basic definitions of sexual harassment of women at workplace and provided guidelines to deal with it and this resulted in what are popularly known as the Vishaka 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 colored 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 2013 was framed and came out as a powerful, protective sexual harassment law for working women of all strata.

Brief of “The POSH Act, 2013”

After 16 long years of Vishaka Guidelines, the POSH Act came into force from 9 December 2013.

The Act is a right step to ensure safe working environment for women as it requires all companies (with more than 10 employees) to constitute an Internal Complaints Committee (ICC) in the prescribed manner and to address the workplace sexual harassment 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 welcome

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 sexual harassment law or PoSH 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 and thus will be considered for cases of workplace harassment. 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 Indian sexual harassment act or the POSH Law.

4) Definition of an “Aggrieved Woman”

The Sexual harassment Law 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 women harassment act once again encompasses a wide range and covers regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract workers, co-workers, probationers, trainees, and apprentices.

6) Definition of an “Employer”

The women’s harassment 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 in the workspace. 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 PoSH training programs from time to time to create awareness and sensitize employees at all levels
• Conduct orientation programs for the members of the ICC
• Provide necessary facilities to the members of the ICC
• Assist the aggrieved woman to secure justice under the IPC
• Monitor the timely submission of the reports by the IC

Furthermore, an employer must fulfil 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 ICC members
• Carry out programs for ICC 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 Complaints Committee (ICC)

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 harassment at workplace 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 the list of members of IC and their contact details at all prominent spaces of the workplace and on the website of the company (if any).

(b) Redressal Process

(i) A compliant of sexual harassment at workplace 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, 2013 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 of the case of harassment at workplace 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

(f) recommendation.

(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.

(d) Appeal

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 of the sexual harassment Law or PoSH Act

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.

Conclusion

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 of the women harassment act 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 at workplace, the organizations will be able to safeguard their reputation in the market.

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