Context: Ten years after the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH) came into force, the Supreme Court Bench of India has said that there are “serious lapses” and “uncertainty” regarding its implementation.
Formation of the PoSH Act
- The formation of the PoSH Act, officially known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, can be traced back to the landmark judgment of the Supreme Court of India in 1997, commonly referred to as the Vishakha case.
- Vishaka was a women’s rights groups, which had filed a case over the alleged gangrape of a social worker for performing her duty.
- The Vishakha case emerged from a horrific incident where Bhanwari Devi, a social worker, was gang-raped in 1992 while attempting to prevent a child marriage in Rajasthan, India.
- In response to the absence of specific legislation addressing sexual harassment at workplaces, various activist groups filed public interest litigation seeking guidelines to fill the legal vacuum.
- Recognizing the need to protect women’s rights and provide a safe work environment, the Supreme Court, in its judgment in 1997, formulated a set of guidelines known as the Vishakha Guidelines.
- These guidelines were deemed to be legally binding until a law was enacted to address the issue of sexual harassment at workplaces.
- Following the Vishakha judgment, efforts were made to draft and pass a comprehensive legislation specifically addressing sexual harassment at the workplace.
- The Protection of Women against Sexual Harassment at Workplace Bill was introduced in 2007 by then Women and Child Development Minister, Krishna Tirath. The bill underwent several amendments and was eventually passed by the Parliament.
- On December 9, 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, commonly referred to as the PoSH Act, came into force.
Provisions of the Act
- The act provides a legal framework for preventing and addressing sexual harassment at workplaces and establishes mechanisms for the redressal of complaints.
- It applies to all workplaces, including the private sector, government organizations, and non-governmental organizations.
- The PoSH Act mandates the formation of internal complaints committees at workplaces, sets out procedures for filing complaints, investigation processes, and the penalties for non-compliance.
- A section of wrestlers were recently protesting, demanding the removal of the President of Wrestling Federation on the allegations of sexual harassment.
- Post the protest, the government had formed a committee led by boxer M C Mary Kom that was required to investigate the matter and provide a report to the government.
- The major finding of the committee is the absence of the ICC at the Wrestling Federation of India (WFI).
- The act aims to create a safe and respectful working environment for women and ensure that incidents of sexual harassment are effectively addressed and redressed.
Sexual Harassment under PoSH Act
- Under the 2013 PoSH Act, committing any one or more of the following would constitute sexual harassment:
- Physical contact and advances
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
- Under the PoSH Act, there are five circumstances that amount to sexual harassment:
- Implied or explicit promise of preferential treatment in her employment.
- Implied or explicit threat of detrimental treatment.
- Implied or explicit threat about the complainant’s present or future employment status.
- Interference with the complainant’s work or creating an offensive or hostile work environment.
- Humiliating treatment of the complainant that is likely to affect her health or safety.
Internal Complaints Committee (ICC)
- The PoSH Act mandates every employer to constitute an Internal Complaints Committee (ICC) at each office or branch having 10 or more employees.
- The act defines various aspects of sexual harassment, and lays down procedures for action in case of a complaint.
- The ICC must be headed by a woman. It has powers similar to those of a civil court
Procedure for filing complaints under PoSH Act:
- Initiation: It is not compulsory for the aggrieved victim to file a complaint for the ICC to take action.
- She may do and if she cannot, any member of the ICC can provide all reasonable assistance to her to complain in writing.
- In case the victim is unable to file complaint due to physical or mental incapacity or death or otherwise, her legal heir may do so.
- Local complaints committee: A local complaints committee must be formed that must receive complaints of sexual harassment from establishments that do not have ICC.
- Victim: The act provides a broad definition of victim, who can be a woman of any age whether employed [at the workplace] or not, who alleges to have been subjected to any act of sexual harassment”.
- Under the act, the rights of all women who are working or visiting any workplace, in any capacity are protected.
- Time limit: The complaint had to be made within three months from the date of the incident. The ICC can extend the time limit if it is satisfied that certain circumstances prevented the victim from filing a complaint within the said period.
- Settlement: The ICC can take steps to settle the matter between victim and the respondent through conciliation before the start of inquiry and at the request of the aggrieved victim.
- However, monetary settlement shall not be allowed as a basis of conciliation.
- Inquiry: ICC can either forward the victim’s complaint to the police, or it can start an inquiry on its own, which must be completed within 90 days.
- During inquiry process, the ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath and requiring the discovery and production of documents.
- Report: After completion of inquiry, ICC must provide a report of its findings to the employer within 10 days. This report must be provided to both parties.
- Confidentiality: The identity of the complainant, respondent, witness, any information on the inquiry, and action taken, should not be made public.
Post Inquiry by ICC
- Proven allegation:
- The ICC may recommend employer to take action in accordance with the provisions of the service rules of the company, which may vary from company to another.
- ICC may recommend deduction of salary of the guilty person.
- Compensation to the victim is based on five aspects: suffering caused to the woman; loss in career opportunity; medical expenses; financial status of the respondent; and the feasibility of such payment.
- In case the victim or the accused is not satisfied, they may appeal in court within 90 days.
- False complaints:
- If allegations are found to be false, the ICC may recommend to the employer to take action against the complainant, in accordance with the provisions of the service rules.
- However, the act makes it clear that action cannot be taken for failure to substantiate the complaint or provide adequate proof.
Challenges in Implementing the PoSH Act
The implementation of the PoSH Act faces several hurdles, which can hinder its effective enforcement and impact. Some of the key hurdles include:
- Inadequate constitution of Internal Complaints Committees (ICCs): The Act mandates the establishment of ICCs at workplaces to handle complaints of sexual harassment. However, there have been instances of improper constitution, including insufficient members or the absence of mandatory external members. Some organizations, including national sports federations, have failed to constitute ICCs altogether.
- Lack of clarity on accountability: The Act does not clearly specify who is responsible for ensuring workplace compliance with its provisions and who can be held accountable for non-compliance. This ambiguity can lead to a lack of enforcement and accountability.
- Limited accessibility for women in the informal sector: The PoSH Act primarily focuses on formal workplaces, leaving women working in the informal sector with limited protection. The law’s provisions may not effectively reach and address the concerns of women in these sectors.
- Underreporting of sexual harassment cases: Many instances of sexual harassment go unreported due to various reasons, such as fear of professional repercussions, power dynamics within organizations, and lack of awareness about the complaint mechanism. The Act aims to address this issue, but barriers to reporting persist.
- Inefficient inquiry processes: The Act emphasizes resolving complaints within civil institutions (workplaces) to provide a more accessible and timely process compared to the criminal justice system. However, the procedures and guidelines for conducting inquiries are sometimes unclear, leading to confusion and inefficiencies in addressing complaints.
- Power dynamics and fear of repercussions: The power dynamics within organizations, especially when the accused holds influential positions, can deter victims from coming forward and filing complaints. The fear of professional and personal consequences often acts as a barrier to seeking redress under the Act.
- The Justice Verma committee was formed in 2013 to provide recommendation on prevention of sexual harassment in workplaces. Some of its recommendations include:
- Employment tribunal: An employment tribunal must be set up under PoSH act instead of ICC. The tribunal need not function as a civil court but may choose its own procedure to deal with each complaint.
- Expanding scope: The act must be expanded to include domestic workers. The definition of ‘sexual harassment’ must be expanded to consider perception of the victim.
- Other provisions: The committee recommended doing away with 90 days’ time limit and penalty for wrong complaints.
- It also increased the responsibility of the employer, making them liable for the safety of their employee.
- The court directed the Union, States and UTs to undertake a time-bound exercise to verify whether Ministries, Departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc. had constituted Internal Complaints Committees (ICCs), Local Committees (LCs) and Internal Committees (ICs) under the Act. These bodies have been ordered to publish the details of their respective committees in their websites.