IDENTIFYING AND ADDRESSING THE CHALLENGES IN IMPLEMENTING THE POSH ACT

This article is written by Prajwal Guleria of 8^th semester of Lovely Professional University, an intern under Legal Vidhiya

ABSTRACT

The POSH Act’s implementation in India to prevent workplace sexual harassment has made tremendous progress, but there are still significant hurdles to be overcome, including poor awareness, stigma and fear, ineffective internal committees, a small scope, confusing terminology, and inadequate follow-up processes. This article lists the obstacles and suggests ways to overcome them, such as improved awareness campaigns, encouraging settings, stronger internal committees, a wider scope, more precise definitions, and more efficient follow-up procedures. Stakeholders must work together to guarantee that the full potential of the POSH Act is realized and that everyone may work in a respectful and safe environment.

KEYWORDS

POSH Act (Prevention of Sexual Harassment at Workplace Act), Sexual harassment, Workplace safety, Gender equality, Women’s rights, Internal Complaints Committees (ICCs), Awareness campaigns, Supportive environments, Legal definitions

INTRODUCTION

The POSH act, also known as the Prevention of Sexual Harassment at Workplace Act, was introduced in India in 2013 to address and prevent sexual harassment in the workplace. The act aims to create a safe, secure, and respectful working environment for everyone, regardless of gender. Imagine working in an environment free from fear, where everyone feels free to give their all without worrying about unwanted advances, offensive comments, or worse. This is not merely a pipe dream; it is the goal codified in the historic Prevention of Sexual Harassment at Workplace (POSH) Act, 2013 of India.

But having good intentions alone won’t pave the way to a workplace that is actually free from harassment. The POSH Act’s implementation is beset by numerous obstacles, which clouds its ability to genuinely establish an environment of empowerment and equity. As with any legislative structure, there are unique difficulties in putting the POSH Act into practice. Recognising and resolving these issues is crucial to guaranteeing the act’s efficient execution and offering workers complete protection.

UNDERSTANDING THE ROADBLOCKS:

• Limited Awareness: One of the biggest obstacles is that neither employers nor employees are fully aware of all the requirements of the Act. A lot of companies haven’t done a good job of explaining their policies and processes for filing and handling complaints and many organizations may not even be aware of the existence or the provisions of the act. Over 80% of India’s female labour works in the informal sector, where women find it difficult to access the law. This lack of awareness can lead to a failure in understanding the importance of preventive measures and the procedure to address complaints. People become reluctant to speak up and ignorant of their rights as a result of this.
• Fear and shame: The fear of victim blaming, reprisals, and social shame make reporting sexual harassment difficult. Underreporting frequently results from this, giving offenders more confidence and victims without assistance. A number of factors, including organisational power relations, fear of losing one’s job, and the lack of hard evidence, causes significant underreporting.
• Inefficient Internal Complaints Committees (ICCs): Fair and prompt reparation depends on ICCs operating properly, it has a great deal of authority according to the POSH Act. Despite the fact that this is a novel idea with the potential to drastically alter how sexual harassment complaints are handled, assembling the necessary committee members is a significant obstacle. In addition, problems including insufficient training, a lack of diversity in the membership, and lengthy bureaucratic processes can undermine their efficacy as well. Many ICCs experience membership shortages or the absence of an essential external member. Moreover, as seen by the case of 16 out of 30 national sports federations an Internal Complaints Committee (ICC) has not established by many organisations.
• Incompetence of the IC: The law has placed the duty of implementing the Act and Rules on the IC, and it has granted the IC the jurisdiction of the Civil Court to conduct the inquiry and analyse the evidence. Members of the IC are ill-equipped to handle such formal and delicate matters in practice. This leads to the contestation of many investigation reports in the High Courts through writ petitions filed in compliance with Article 226 of the Constitution.
• Applicability to the informal sector and small-scale industries: These industries frequently lack the resources, rules, and infrastructure needed to adequately handle sexual harassment complaints.
• Absence of gender neutrality: At the moment, the Act only addresses protecting women from males who harass them sexually. Men, members of the LGBTQ+, and people who work in non-traditional settings are not included in this providing a narrow scope to the Act. For example: A woman who claims to have experienced sexual harassment is referred to as an aggrieved lady in Section 2(a)[3]. Section 3[4] states that no woman shall be the object of sexual harassment in any employment. Therefore, by limiting its implementation to women alone, the Act forfeits any opportunity to address complaints raised by men or LGBTQ+ individuals.
• Confidentiality: The employer must maintain extreme caution. The Act prohibits any kind of disclosure of investigation-related information to the media, public, or press. It has been found that information constantly leaks to the media or within the organisation, placing undue pressure on all parties—including the members of the IC. Causing the victims to not come forward out of fear.
• Ineffective Reminder Systems: Enforcing sanctions and ensuring remedial action can be difficult, even if complaints are looked into and proven. This lessens the deterrent power of the Act and deters victims from seeking redress.
• Imprecise and inaccurate annual reporting: Every year, the IC is expected to compile an obligatory report that includes information on the number of cases it receives and resolves, the number of cases that are over 90 days outstanding and the reasons behind the delay, the employer’s actions, and the number of awareness seminars it conducts. However, because the state has not made it clear where the reports must be delivered, it has been noted that a number of organisations are failing to send this information to the appropriate body. This may result in problems with data leaks and financial penalties for the companies.

BUILDING A STRONGER FOUNDATION:

• Enhanced Awareness Campaigns: To ensure that employers and employees are informed about the Act, its goals, and reporting procedures, it is essential to hold regular workshops, training sessions, and accessible information dissemination. Broad awareness campaigns and ongoing training initiatives will draw attention to the essential elements of the POSH Act.
• Creating Supportive Environments: Fostering a culture of open communication, empathy, and zero tolerance for harassment can help victims to come forward without fear of punishment. This entails creating efficient channels for redressing grievances outside of the official ICC procedure. It is essential that victims come forward and report incidents without fear of reprisals because they should feel secure and confident doing so. Employers need to set up strong procedures to safeguard complainants’ privacy and guarantee an unbiased investigation.
• Dispelling myths: To show that sexism and non-sexual behaviour can also signify sexual harassment, and that physical contact need not always be considered a sexual act. Senior management ought to lead by example.
• Overcoming Gender Bias: In any case, the Act does not address the process for filing a complaint when a worker of a different gender experiences sexual harassment. This prevents workers of different genders from filing reports. An organisation can close this gap by enacting a distinct sexual assault policy for all genders.

This can be covered under the service rules rather than the POSH Act. Employees who are not female can nonetheless file complaints with the Internal Committee. The authority to do this shall be granted to the IC.

• Anonymous complaints: In order to prevent legal issues, these complaints may still be looked into and handled as disciplinary matters. Ultimately, the goal of the Act is to make the workplace safer. Ignoring an occurrence that was brought to the knowledge of management is obviously not a good idea.
• Strengthening ICCs: It is essential to give ICC members thorough training on legal requirements, investigative methods, and victim sensitivity. Ensuring diversity in the composition of the ICC helps alleviate prejudice issues and foster confidence. Some of the steps that can be taken are:
• IC members should be continuously upskilled through trainings and the availability of legal and expert assistance as needed.
• The first step in conquering unconscious prejudices could be to encourage members of IC to discuss them.
• Providing technological and logistical aid so that meetings can be conducted via video conferencing, etc.
• Rewarding each member of the IC for his or her efforts.
• Streamlining Procedures for Follow-Up: Clearly defined timeframes for sanctions, investigations, and corrective measures can guarantee prompt and efficient handling of complaints. Increasing the effectiveness of monitoring systems to make companies responsible for compliance is another aspect of this.

RECENT DEVELOPMENTS

While the POSH Act continues its journey towards creating safer workplaces, recent developments reveal both encouraging progress and persistent challenges.

1. Directions by Supreme Court on POSH Act Implementation (Oct 2023)

• District Officer’s appointment: The Supreme Court highlighted that, in accordance with Section 5 of the POSH Act, every state and union territory must select a “District Officer.”
• Assessments of Committees in a time bound manner: In order to guarantee the creation of Local Committees (LCs) and Internal Committees (ICs) across ministries, departments, organisations, and public sector undertakings, the SC directed the Union of India, state governments, and union territories to conduct time-bound committee assessments.
• Initiatives for Capacity Building: To raise the level of knowledge among LC and IC members, the Court suggested holding frequent workshops, awareness campaigns, and orientation sessions.
• Recommendations by Justice Verma Committee
• Creation of an employment tribunal to handle cases of sexual harassment at work rather than the International Criminal Court was suggested.
• It was recommended that the committee should establish its own protocols to quickly handle complaints.
• The inclusion of domestic workers under the Act’s protection was recommended as well.
• An advice was made against penalising women for making fictitious complaints, to preserve the law’s objective.
• In a recent ruling, the Supreme Court highlighted the shortcomings in the Internal Committee (IC) constitutions of establishments, stressing the necessity of appropriate formation and operation. The court cited an article in the newspaper that stated that 16 of the 30 national sports federations in the nation had not yet created ICs. This information was made public during rallies in Delhi by wrestlers against Brij Bhushan Sharan Singh, the president of the Wrestling Federation of India (WFI), after claims that he had harassed them sexually. After a thorough investigation that included contacting the office holders of each of the 30 federations, it was discovered that five of them—including the wrestling federation—did not even have an ICC; four others lacked the necessary number of members; six more federations did not have the necessary external member; and one federation had two panels but no independent member. The ruling emphasised worries over incorrectly constituted ICs by citing cases in which committees were either under constituted or did not include the required external member.

CONCLUSION

While the POSH Act provides a necessary legal framework for addressing and preventing sexual harassment at the workplace, its implementation faces several challenges. Effective POSH Act implementation necessitates cooperation from the government, businesses, civil society organisations, and individuals. Creating a work environment where everyone feels valued, safe, and free to give their all requires open communication, shared accountability, and constant development. Although the road ahead is still long, we can make progress towards establishing an atmosphere that is genuinely free from harassment if we systematically tackle the obstacles. As a successful implementation of the POSH Act will contribute to creating safer and more inclusive work environments and safeguarding the rights and well-being of employees.

REFERENCES

1. https://www.scconline.com/blog/post/2023/05/14/sexual-harassment-of-women-at-workplace-sc-directions-to-implement-posh-act/ visited on 09-01-2024
2. https://indianexpress.com/article/cities/pune/posh-act-real-challenge-in-providing-solutions-to-issues-of-women-workers-9060658/ visited on 09-01-2024
3. https://elearnposh.com/reporting-sexual-harassment-in-workplace/ visited on 10-01-2024
4. https://www.studyiq.com/articles/posh-act/ visited on 11-01-2024
5. https://www.womensweb.in/2019/07/workplaces-still-face-8-challenges-in-implementing-posh-act-2013-how-do-we-change-this-july19wk1sr/ visited on 11-01-2024
6. https://www.lawyered.in/legal-disrupt/articles/posh-act-and-its-challenges/ visited on 12-01-2024

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