The time has come when men and women contribute equally to the development of the country along with their own for a better life. The sexual harassment at workplace is a form of gender discrimination violative of the Right to Equality and Right to Life guaranteed under Article 14, 15 and 21 of The Constitution of India. Sexual harassment at workplace creates a hostile working environment for women which discourages women from participating in work and adversely affects their social and economic empowerment and the goal of inclusive growth. Thus, women empowerment becomes necessary for sustainable development. The Government of India supports women by introducing various laws which encourage more women to come forward.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, also called 'POSH Act' is one such initiative that has been taken by the Government. It provides protection to women against workplace sexual harassment as well as for the prevention and Redressal of complaints about sexual harassment.
The POSH Act was laid down during the judgement of Vishaka v/s. State of Rajasthan by the Supreme Court in 1997. The Supreme Court drafted guidelines and issued directions to the Union of India to establish a suitable law for combating workplace sexual harassment. The objective of the guidelines was to provide a platform for the redressal and complaint against the harassment issue. Later, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was introduced in 2013.
As per Vishaka guidelines, 'Sexual Harassment' includes any one or more of the following unwelcome acts or behaviour:
1. Physical contact and advances
2. Demand or request for sexual favours
3. Sexually coloured remarks
4. Showing pornography
5. Any other uninvited physical, verbal or non-verbal behaviour of a sexual nature
1. Sexual harassment at the workplace is the violation of women's fundamental rights to equality, life and liberty. The Act intends to protect these fundamental rights.
2. Workplace Sexual harassment does not only created a hostile working environment but also affects the ability to deliver their best. The Act aims to provide every woman with a safe, secure and dignified working environment.
3. Workplace Sexual harassment has affected women's social and economic growth along with physical and emotional sufferings. The Act also includes growth and social development.
4. Workplace Sexual harassment is a form of gender discrimination. The Act enforces an employer to promote a gender-sensitive workplace and also to make employees aware and realise the gender sensitization at the workplace by undertaking some exercise on the topic.
The term 'Aggrieved Woman' is specified in the POSH Act. According to the Act, an 'Aggrieved Woman' is a lady of any age, whether employed or not, who claims as a victim of sexual harassment at the workplace by the respondent. Therefore, it is not necessary that the woman needs to be an employee. She may be working, student or visiting a place. She may be working as a Contract worker, probationer, trainee, apprentice. She may have been employed directly or through an agent. She may be for the purpose of remuneration, voluntary basis or otherwise. She may be any of the Regular, Temporary, Ad Hoc, Daily wager or Domestic Worker.
The POSH Act specifies that a woman should not be subjected to workplace sexual harassment. In order to claim protection under the Act, an occurrence of the incident must have happened at the Workplace. The POSH Act is applicable to women and it is not gender-neutral law. Hence, Men victim does not qualify for this Act.
Features of the Act
1. The inquiry must be completed within 90 days by committee. The report needs to be submitted to the district officer who has to take action within 60 days.
2. The Act asks employers to conduct education & sensitization programmes and develop policies for other obligations as well.
3. The Act provides safeguards against false allegations.
4. Conciliation is to be provided by the committees on the request of the complainant before initiating the inquiry.
5. The inquiry process should be confidential and must be penalised if confidentiality is breached.
6. The non-compliance with the provisions of the Act is punishable.
The POSH Act provides for redressal mechanisms by setting up complaint redressal forum. According to it, Committees have been established are:
1. Internal Committee (IC) - The Act makes it mandatory for an employer to set up IC at each office and/or branch having a minimum of 10 employees. The committee is to hear and redress sexual harassment complaints. It also works on the prevention of such incidences. Lead to charge fine under the POSH Act if an employer fails to constitute the IC.
The IC committee members include:
• Presiding Officer - Senior level Woman employee at the workplace
• Members - Not less than 2 employees. The preference goes to the members if they are committed for the cause or experience of social work or have legal knowledge.
• External Member - From NGO or committee bound to the cause of women or whoever familiar with the sexual harassment-related issues.
The IC should have a minimum of 50% women as members. The term of the IC members should not be more than 3 years. Minimum 3 members of the committee including the Presiding Officer should be present during the inquiry.
2. Local Committee (LC) - The Act requires to set up LC at the district level to deal with the sexual harassment-related issues from unorganised sectors or establishments where IC has not been constituted.
The LC committee members include:
• Chairperson - Prominent woman from the field of social work and committed to the cause.
• Local Woman - One of the members should be a woman who is working in block, taluka, tehsil or ward or municipality in the district.
• NGO Members - Should be two members, out of which at least one member should be-
- from NGO or committee bound to the cause of women or whoever familiar with the sexual harassment-related issues
- should have a background in Law
- belongs to SC or ST.
Process of filing the complaint
1. The complaint should be in writing within 3 months of the incident.
2. The complaint may be filed by the victim's relative, friend, co-worker, an officer of the national commission or whoever has a knowledge of the incident in case of the mental/physical inability of a victim.
3. She may ask for her/respondent's transfer or leave during the course of an inquiry.
4. The inquiry should be completed within 90 days.
In order to get better results from the Act, there is a need to invoke strong commitment to the cause of women so that they can do their work freely and confidently at the workplace. Also, there is a need to involve diligent investigative mechanisms. Though the Government has established committees to look into the issue, it needs to be managed proactively and effectively.
By: Rashi Suri
Partner (Upscale Legal)