The POSH Act and the internal committee: Protecting sexual harassment at workplace

Key-takeaways

· The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) provides guidelines to ensure safety of women at workplace.

· The act provides for constitution of an Internal Committee by employers to ensure protection of women and prevention of cases of sexual harassment against them.

1. Introduction

There was a time when women used to stay at home and look after the household chores but today the situation has changed drastically. Women of this country have started stepping out of their homes to work and become financially independent. The ratio of women at workplace has been increasing but many families remain sceptical about allowing women to pursue their careers by working outside. One of the major reasons being the apprehension surrounding their safety. The doubts of the families are not unfounded as cases of sexual harassment are heard every now and then even at places of work. How will gender equality be attained if women are not provided with an environment where they can step out of their homes to work for themselves and their families without any fear. How will they be able to contribute their best to the companies for whom they are working if they are not feeling safe and comfortable. Earlier there was no legislation which provided for protection of women against sexual harassment and matters related to it but the case of Vishaka & Others vs State Of Rajasthan & Othersbrought this gap into light.

2. The Sexual Harassmentof Women at Workplace (Prevention, Prohibitionand Redressal) Act, 2013

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or the POSH Act came into effect on 9th December 2013 with the objective of providing a legislation with respect to the protection and prevention of women against sexual harassment at workplace and redressal against any such complaints. The act also aims at giving effect to the Convention onthe Elimination of all Forms of Discrimination against Women which recognises that right to work with dignity is a human right and which was ratified by India in 1993.

Section 2(n) of the act has defined "sexual harassment” to include any of the following acts or behaviour either directly or indirectly:

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Section 4 of the act deals with provisions governing constitution of an "internal complaints committee” by every employer which shall consist of the following members who are to be nominated by the employer, namely;

i. A woman as the Presiding Officer working at a senior level from amongst employees

(If a senior level woman employee is not available then nomination for the Presiding Officer can be made from other offices or administrative units)

(If a senior level women employee is not available in other offices or administrative units then nomination can be made from anotherworkplace of the same employer or other department or organisation)

ii. At least two members from amongst employees, preferably someone committed to the cause of women or having experience in social work or having legal knowledge

iii. One member from either an NGO or an association which iscommitted to the cause of women or someone familiar with issues relating to sexual harassment (to be paid fees or allowance as maybe prescribed by the employer)

At least half members who are nominated should be women. The act has also specified that the members and the presiding officer shall hold office for a period not exceeding three years from the date of nomination.

Section 9 of the act states that any aggrieved woman may make a complaint of sexual harassment at workplace in writing before the internal committee or the local committee and Section 11 of the act deals with inquiry into such complaint.

The complaint is to be made within 3 months from the date of incident or in case of series of incidents, within 3 months from the date of last incident (time limit can be extended if the committee is satisfied with reasons to be recorded in writing for the delay in filing of the complaint).

Section 10 deals with conciliation at the request of the aggrieved woman between her and the respondent before an inquiry is initiated by the committee under Section 11 but monetary settlement cannot be made a basis for such conciliation.

Section 13 deals with "inquiry report” comprising of the findings of the inquiry so conducted andthis report is to be submitted by the committee within a period of 10 days from the date of completion of such inquiry.

Section 19deals with duties of employer some of which are – providing a safe work environment, organising awareness programmes for sensitising employees, monitoring submissions of reports by Internal Committee etc.

3. Vishaka & Others vs State Of Rajasthan & Others((1997) 6 SCC 241)

In the present case, a writ petition was filed for enforcing rights under Article 14, 19 and 21 of working women. The reason for filing the writ petition was stated to be an alleged brutal gang rape of a social worker in Rajasthan which brought into light the urgent requirement for an "alternative mechanism in the absence of legislative measure” to uphold the "rights of Gender Equality and the Right of Life and Liberty”. o:p>

The court observed that, "Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right.”

TThe court laid down a guideline known as the ‘Vishakha Guidelines’ in the absence of an enacted law to protect women from sexual harassment at workplace and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013succeeded these guidelines.

4. Recent observations by the District Court of Delhi

A woman who was working for Srilankan Airlines in Delhi had filed a complaint against the manager of the airline who was also working at Delhi accusing him of sexual harassment at workplace and he was later found guilty by the court. The woman also alleged that the Airlines deliberately made delays in taking action against the accused and did not had an Internal Complaints Committee as required under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The airlines contended in its defence that they had another committee in conformity with the said Act under its existing policy called Special Policy Against Harassment.

TThe court held that even though the airlines had its own committee under their existing policy but this policy is not in compliance with Section 4 of the act and said that, "Even the respondent in his statement u/s 313 Cr.P.C. has submitted that the company had a committee as per their SPASH policy. This policy is not in compliance with Section 4 (1) of Sexual Harassment of Women (Prevention Prohibition and Redressal Act) 2013. Section 4 (1) of the Act mandates that every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the 'Internal Complaints Committee'. The violation of this law is a punishable offence under Section 26 of the Act with a fine of Rs 50,000.” (Sreeleja Nair vs Sri Lanka Airlines Ltd.)

5. Conclusion

The enactment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has helped in addressing cases of sexual harassment to a great extent. The provision for constitution of an Internal Complaint Committee by employers has been inserted for a reason. Having a committee specifically for ensuring safety at workplace builds confidence and a sense of security among women who in turn are able to work to the best of their capabilities.