ABSTRACT

Times have changed and now women are also working at par with men and trying to come to the forefront. Globalisation has brought a change in the status of women worldwide. Though with the large influx of women in the workforce of India, the problem of sexual harassment has taken up greater dimensions.

Workplace sexual harassment is a form of gender discrimination which affects various women at different workplace. It violates a woman’s fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India. Workplace sexual harassment creates an insecure and hostile working environment for women and also impedes their ability to deliver in today’s competing world. It also adversely hinders their social and economic growth and puts them through emotional suffering.

The POSH Act was enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints regarding sexual harassment. While the statute aims at providing every woman a safe, secure and dignified working environment,free from all forms of harassment, proper implementation of the provisions remains a challenge.

However, the POSH Act has certain restrictions, including prohibiting anonymous complaints and not allowing women from filing complaints against other women for sexual misconduct. Furthermore, only women can file complaints for sexual harassment under this Act, as males and transgenders have been excluded. Despite its well-meaning objectives, the Act encounters substantial implementation challenges due to inadequate education of employers and employees, as well as insufficient training for Internal Complaints Committee (ICC) members, resulting in violation of Section 19 of the POSH Act, which provides the ‘duties of employer’.

Keywords: POSH Act, Sexual Harassment at Workplace, Internal Complaints Committee (ICCs), Legislative Gaps, Implementation Challenges.

INTRODUCTION

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, widely known as the “POSH Act”, was introduced as a result of the Vishakha Guidelines which were passed by the Supreme Court in the case of Vishaka & Ors. v. State of Rajasthan & Ors. This Act was enacted by the Ministry of Women and Child Development, India in 2013. The Government also subsequently notified the rules under the POSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”). 

The POSH Act is India’s first legislation specifically enacted for the purpose of addressing the issue of workplace sexual harassment. The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 which criminalised offences such as sexual harassment, stalking and voyeurism.

Although the law preventing sexual harassment has been in force since 2013, there remains a lack of clarity on various aspects pertaining to statute, including questions such as - what constitutes sexual harassment, obligations of an employer, the extent of liability of an employer, remedies/safeguards available to the victim, procedure of investigation, determination of compensation, etc. Many people are also not aware of the consequences of sexual harassment. Lewd jokes, inappropriate comments or actions etc. which are dismissed as being normal or trivial, with women being hesitant to initiate actions due to apprehension of being ridiculed, which increases the need for greater awareness and greater enforcement. 

Any tool would be useless if the person operating it is unaware of the way it is to be used, which is what makes it even more crucial to spread knowledge about the various actions and remedies which could be opted for by the victim.

EVOLUTION OF THE LAW ON WORKPLACE SEXUAL HARASSMENT

The elimination of gender-based discrimination has been one of the fundamentals of the Constitution of India. The principle of gender equality is embraced by the Constitution, its preamble, fundamental rights, fundamental duties and directive principles. However, the concept of sexual harassment at workplace was recognised for the first time by the Supreme Court of India in its landmark judgement of Vishaka & Ors v. State of Rajasthan & Ors.(“Vishaka Guidelines”), wherein the Supreme Court framed certain guidelines and issued directions to the Union of India to enact an appropriate law for combating sexual harassment at workplace. The POSH Act and the POSH Rules were enacted 16 years after the Vishaka Judgement.

In the absence of a specific law in India, the Supreme Court, in the Vishaka Judgement, laid down certain guidelines which were mandatory to be followed by every employer in order to provide a mechanism for the redressal of grievances pertaining to sexual harassment at workplaces which were being followed until the POSH Act was enacted.

The Vishaka Judgement: In 1992, Bhanwari Devi, a dalit woman employed with the rural development programme of the Government of Rajasthan, was brutally gang raped on account of her efforts to curb the then prevalent practice of child marriage. This incident brought to the forefront all the hazards that working women were exposed to on a day to day basis and highlighted the urgency for safeguards to be implemented in this regard. 

Working for the cause of working women in the country, women’s rights activists and lawyers filed a Public Interest Litigation under the banner of Vishaka.

In framing the Vishaka Guidelines, the Supreme Court placed importance on the Convention on Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of the United Nations in 1979, which was signed as well as ratified by India.

As per the Vishaka judgement, the Vishaka Guidelines issued under Article 32 by the Supreme Court would have to be mandatorily followed by organisations,both in private and Government sector until a legislative framework on the subject had been drawn up and enacted.

As per the Vishaka judgement, “Sexual Harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

1. Physical contact and advances

2. A demand or request for sexual favors

3. Sexually colored remarks

4. Showing pornography

5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work (whether she is drawing salary or honorarium or voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace. It is discriminatory, for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work (including recruiting and promotion), or when it creates a hostile working environment. Adverse consequences might result if the victim does not consent to the conduct in question or raises any objection thereto.”

Apparel Export Promotion Council v. A.K Chopra: The Vishaka judgement initiated a nationwide discourse on sexual harassment at workplace and threw open an issue that was swept under the carpet for the longest time. In this case, the Supreme Court reiterated the law laid down in the Vishaka judgement and upheld  the dismissal of a Superior officer of the Delhi base Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee at the workplace. In this judgement, the Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment. 

The Supreme Court explained that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.”

Medha Kotwal Lele & Ors. v. Union Of India & Ors.: A letter written by Dr. Medha Kotwal of Aalochana (an NGO) highlighted a number of individual cases of sexual harassment stating that the Vishaka guidelines were not being effectively implemented. Converting the letter into a writ petition, the Supreme Court took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country by directing the state governments to file affidavits emphasizing on the steps taken by them to implement the Vishaka Guidelines. In its judgement, the Supreme Court observed that “the implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect.” Not being satisfied with the implementation of the Vishaka Guidelines, it directed states to put in place sufficient mechanisms to ensure effective implementation of the Vishaka Guidelines, it would be open to the aggrieved persons to approach the respective High Courts.

KEY PROVISIONS OF THE POSH ACT

1. Applicability and scope: 

   1. The POSH Act extends to the ‘whole of India’.

   2. As per the POSH Act, an ‘aggrieved woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment. Given that the definition does not necessitate the woman to be an employee, even a customer/client who may be sexually harassed at a workplace can claim protection under the POSH Act.

   3. The POSH Act applies to both the organised and unorganised sectors in India. It also applies to government bodies, private and public sector organisations, non-governmental organisations, organisations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and also applies to a dwelling place or a house.

2. What amounts to Sexual Harassment:

As per the POSH Act, ‘sexual harassment’ includes unwelcome sexually tinted behaviour, whether directly or by implication, such as (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured remarks (iv) showing pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

3. Employee: 

The definition of an employee under the POSH Act is fairly wide to cover regular, temporary, ad-hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract labourers, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.

4. Workplace: 

While the Vishaka Guidelines were confined to the traditional office set-up, recognising the fact that the sexual harassment may not necessarily be limited to the primary place of employment, the POSH Act has introduced the concept of an ‘extended workplace’. As per the POSH Act, ‘workplace’ includes any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment.

5. Complaints Committee

The POSH Act requires an employer to set up an ‘Internal Committee’ (“IC”) at each office or branch, of an organisation employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment. Failure to constitute the IC has led to imposition of a fine under the POSH Act.

6. Complaint Mechanism

An aggrieved woman who intends to file a complaint is required to submit six copies of the written complaint, along with supporting documents and names and addresses of the witnesses to the IC or LC, within 3 months from the date of the incident and in case of a series of incidents, within a period of 3 months from the date of the last incident. Prompt reporting of an act of sexual harassment is probably as important as swift action to be taken by the authorities on receiving a complaint. In fact the more prompt the complaint is, the more authentic it can be treated. In instances where sufficient cause is demonstrated by the complainant for the delay in filing the complaint, the IC/LC may extend the timeline for filing the complaint, for reasons to be recorded in-writing. The law also makes provisions for friends, relatives, co-workers, psychologist & psychiatrists, etc. to file the complaint in situations where the aggrieved woman is unable to make the complaint on account of physical incapacity, mental incapacity or death.

EMPLOYER’S DUTIES AND OBLIGATIONS

These are some of the duties which were imposed on the employers under the said Act in order to enhance the working conditions for women at workplaces:-

1. Promoting a gender sensitive workplace and removing the underlying factors that contribute towards creating a hostile working environment against women.

2. Provide a safe working environment.

3. Formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace

4. Display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the IC

5. Declare the names and contact details of all members of the IC

6. Organize workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the IC

7. Provide necessary facilities to the IC for dealing with the complaint and conducting an inquiry

8. Cause to initiate action, under the Indian Penal Code, 1860 (“IPC”) or any other law in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place

9. Provide assistance to the aggrieved woman if she so chooses to file a complaint in relation to the offence under the IPC or any other law for the time being in force

10. Treat sexual harassment as a misconduct under the service rules and initiate action for misconduct

11. Prepare an annual report with details on the number of cases filed and their disposal and submit the same to the District Officer.

12. Monitor the timely submission of reports by the IC.

CONCLUSION

The POSH Act marks a significant step forward in promoting safer workplaces for women in India. However, its full potential is hampered by deep-rooted structural and procedural challenges that must be addressed. To truly realise the goals of the Act, it is essential to engage in comprehensive legislative reforms, execute organisational challenges, and foster a profound cultural shift toward gender equality across all sectors. Developing a strong, inclusive framework that prioritises gender equality and enhances workplace safety requires the collaborative efforts of government bodies, businesses, and local communities.

REFERENCE: 

 AIR 1997 SUPREME COURT 3011

 Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979

 (1997) 6 SCC 241

 (1999) 1 SCT 642, AIR 1999 SUPREME COURT 625

 (1999) 1 SCT 642, AIR 1999 SUPREME COURT 625

Section 1 of the POSH Act

Section 2(a) of the Prevention of Workplace Sexual Harassment Act

Section 2(o) of the Prevention of Workplace Sexual Harassment Act

Section 2(n) of the Prevention of Workplace Sexual Harassment Act

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