OVERVIEW OF THE POSH ACT’S OBJECTIVES AND HISTORICAL CONTEXT

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

ABSTRACT

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the POSH Act, stands as a pivotal moment in India’s fight for gender equality in the workplace. This article delves into the historical context that led to the Act’s creation, analyzing its key objectives and their implications for fostering a safer and more equitable work environment for women. The discussion critically examines the Act’s provisions, emphasizing its strengths and weaknesses in the face of existing societal challenges and limitations. By juxtaposing historical context with objective analysis, this article paves the way for a nuanced understanding of the POSH Act’s potential and remaining hurdles in creating a truly harassment-free workplace culture in India.

KEYWORDS:

POSH Act, sexual harassment, women’s rights, gender equality, India, workplace safety.

INTRODUCTION

Any unwanted sexual advances, demands for the same, and any such physical or verbal behaviour are covered by the Prevention of Sexual Harassment Act. The Act’s provisions address the following three categories of physical harassment:

1. Touching or molestation
2. Harassment, whether verbal or nonverbal, encompassing remarks and body language;
3. Exhibition of any such provocative content.

The Act’s definition of sexual harassment covers both actions and behaviours.

Workplace sexual harassment remains a significant barrier to workplace equality and advancement for women around the world. Recognizing this, India passed the POSH Act in 2013, establishing a legal framework for reporting, investigating, and redressing complaints of sexual harassment in workplaces. This article examines the Act’s impact on promoting gender equality within Indian workplaces, highlighting its strengths, weaknesses, and potential for further improvement.

KEY PROVISIONS OF THE POSH ACT:

1. Definition of sexual harassment: The Act provides a broad definition encompassing physical, verbal, and non-verbal conduct of a sexual nature, creating a more inclusive platform for addressing various forms of harassment.
2. Internal Complaints Committees (ICCs): Every organization with 10 or more employees must establish an ICC to investigate complaints of sexual harassment. Section 4 of the Act provides for the ICC’s composition, with at least half of its members being women, and its mandatory training requirements aim to ensure fair and sensitive handling of complaints.
3. Redressal mechanisms: The Act empowers ICCs to recommend various sanctions against perpetrators, including dismissal, transfer, or withholding of promotion. This provides victims with tangible remedies and discourages future instances of harassment.

COMPOSITION OF THE INTERNAL COMPLAINTS COMMITTEE:

1. Presiding Officer: In accordance with the Internal Complaints Committee Policy, the presiding officer must be a woman employed at a senior level in the company or workplace.
2. Internal Members: A minimum of two members of the Internal Complaints Committee shall be chosen from among the staff members who possess a strong commitment to the advancement of women, social work experience, or legal expertise.
3. External Member: A person with knowledge of sexual harassment-related matters or a representative of non-governmental organizations or associations dedicated to the cause of women must be chosen as the external member of the IC.
4. 50% Women: Of the total members nominated to the IC, at least 50% must be women.

HISTORICAL CONTEXT

The Indian Penal Code, 1860 was the only statute that addressed workplace sexual harassment directly prior to the POSH Law’s implementation. The Indian Penal Code’s only sections that could be applied to sexual harassment are as follows:

Outraging a woman’s modesty is covered in Section 354, while insulting a woman’s modesty is covered in Section 509.

It was mandatory for women who experienced sexual harassment at work to report the incident to the police. The Rupan Deol Bajaj vs. K.P.S. Gill (1995)[1] case demonstrates the application of the Indian Penal Code. In this case, a senior IAS officer was sexually harassed by a superior officer; the High Court determined that recourse to the limited provisions of the IPC under Section 354 and Section 509 was insufficient. It was clear that there was a legal loophole and that more sexual harassment measures were required. The Rupan case verdict was overturned by the Supreme Court due to these kinds of incidents. The regrettable events in the Vishaka case[2] ultimately brought attention to sexual harassment at work, how to prevent it, and available channels for recourse.

It was demanded by the Vishaka Guidelines that sexual harassment be defined. This was accomplished by the guidelines, which used an exact definition from the CEDAW Convention’s General Recommendation 19. “Sexual Harassment” include unwanted sexually motivated actions, whether it be direct or indirect, such as:

• Making physical contact and advances
• A request or demand for sexual favours
• Statements with a sexual undertone (Sexually colored remarks)
• showing porn
• Any additional unwanted sexually suggestive behaviour, whether verbal, physical, or nonverbal.
• Any sexual behaviour that is closely connected to the victim’s job or place of employment
• Behaviour that can make a woman feel humiliated
• any sexual activity that jeopardises a woman’s safety or health.

Sexual harassment includes both creating a hostile work atmosphere and making unwelcome sexual advances or requests.

DEVELOPMENT AND LEGAL FRAMEWORK

• Precursors: The Vishakha Guidelines of 1997 offered guidelines for handling sexual harassment before the POSH Act. Their inability to bind, nevertheless, limited their usefulness.
• Growing Advocacy: High-profile sexual harassment cases, along with growing public awareness and vocal movements calling for women’s safety and empowerment, pushed for a strong legislative framework.
• Legislative Process: The POSH Act was created by the government in response to stakeholder discussions and proposals from multiple committees. The Act became operative in 2014 after being passed in 2013.

The 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act (POSH Act) provides a thorough legislative framework to prevent sexual harassment in the worker environment. This law is applicable to every business, regardless of industry, that employs more than ten people.

Any unwanted sexual advances, requests for sexual favours, or any verbal or physical acts of a sexual character that create a hostile or intimidating work environment are all considered sexual harassment according to the POSH Act.

Most importantly, the POSH Act requires organisations to set up internal complaints committees (ICCs) to look into and decide sexual harassment accusations. These committees need to be led by women and have a minimum of 50% female membership.

The Act also stipulates various penalties for sexual harassment, including imprisonment, fines, and disciplinary actions against perpetrators.

OBJECTIVES OF THE POSH ACT:

The POSH Act’s overarching objective is to prevent and prohibit sexual harassment of women at the workplace. This encompasses a multi-pronged approach:

• Establishment of Internal Complaints Committees (ICCs): Every organization with 10 or more employees must establish an ICC to investigate complaints of sexual harassment. This internal mechanism aims to provide swift and accessible redressal within the organization.
• Employee protection: The statute attempts to shield workers against sexual harassment at work, particularly women workers. It gives them a legal framework within which to file complaints and pursue legal action against those who harass them sexually. The act highlights how crucial it is to have a polite, safe workplace where workers can do their jobs without worrying about being harassed.
• Encouraging gender equality: The POSH Act seeks to advance gender equality in the workplace by acknowledging that sexual harassment is a type of gender-based discrimination. By addressing sexual harassment and offering channels for recourse, the act fosters a more welcoming and equal workplace.
• Legal compliance: Employers are required by law to maintain a harassment-free and safe workplace, as outlined in the POSH Act. It highlights how crucial it is to abide by the terms of the POSH Act and lays out the consequences of doing otherwise. Organisations are required to conduct awareness campaigns, put into place policies and processes that comply with the POSH Act, and take necessary legal action against those who engage in sexual harassment.
• Education and awareness: The Act requires employers and employees to receive education about the Act’s provisions, their rights and obligations, and how to stop sexual harassment. This encourages sensitivity and understanding in the workplace culture.
• The Act offers victims full protection by defining sexual harassment broadly and inclusively to include physical, verbal, and nonverbal acts of a sexual nature.

RECENT DEVELOPMENTS

The Sexual Harassment of Women of Workplace (Prevention, Prohibition and Redressal) Act, 2013 (also known as the “POSH Act”) was enacted in India more than ten years ago, with the express goals of protecting women from sexual harassment at work and handling complaints of sexual harassment. The Me Too campaign has played a contribution in raising awareness of sexual harassment in India in recent years. Employers are becoming more aware of this issue and more women are coming forward to report incidences.

But the war is far from over. Victims still often face discrimination and stigma, and many cases remain unreported. One of the key goals is still to create a friendly environment so that victims feel comfortable coming forward. The POSH Act’s implementation has certainly led to notable advancements in workplace sexual harassment awareness and the establishment of a system for handling accusations of sexual harassment, even though it was not without difficulties. The jurisprudence and standards surrounding the POSH Act are always changing.

The case known as Aureliano Fernandes Vs. State of Goa and Others[3] included an accused party challenging an order issued by the Internal Committee (“IC”) under the POSH Act before the Supreme Court (“SC”). In the aforementioned instance, the SC overturned the ex-parte ruling that the IC had made against the accused on the grounds that, among other things, the IC had not allowed the accused enough time to meaningfully engage in the proceedings and that the proceedings had been handled hurriedly.

In the aforementioned case, the Supreme Court also reviewed the POSH Act’s implementation over the previous ten years. Notably, it noted that even after such a long period of time, there are still serious inconsistencies in the Act’s enforcement and noted that an improperly constituted or poorly prepared IC would make it difficult to conduct a fair investigation. The Supreme Court acknowledged that the POSH Act can only accomplish its goals if all state and non-state actors take a proactive stance and strictly adhere to the law. Given this, the SC established a set of guidelines to guarantee that the POSH Act’s intended purpose is actually achieved. Some of the key directions are:

1. The State Governments, the Union Territories, and the Union of India shall carry out a time-bound exercise to confirm that all relevant ministries, departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc., have established internal committees, or ICs, as the case may be, and that the composition of said committees strictly complies with the provisions of the POSH Act.
2. Ensure that the relevant rules, regulations, and internal policies, as well as the information about the makeup and composition of LCs and ICs, the process for filing an online complaint, and the pertinent information about the relevant rules, regulations, and internal policies, are easily accessible on the website of the relevant authority, functionary, organisation, body, or institution, as the case may be. Periodically, the information provided will also be updated.

COMMUNICATION AND SUPPORT

It’s critical to comprehend the many types of sexual harassment and to be prepared to respond appropriately. Reporting occurrences of workplace harassment to the ICC or supervisors is advised for victims. Incidents at educational institutions ought to be reported to the anti-sexual harassment committee or the principal. Complaints can also be submitted with the NCW or the police.

It is crucial for victims to understand that they are not alone. It is not uncommon for victims to seek out support and aid from a multitude of persons and organisations.

CONCLUSION

The POSH Act stands as a significant legislative achievement in India’s fight for gender equality in the workplace. Its broad definition of sexual harassment, establishment of ICCs, and provision for redressal mechanisms offer critical tools for creating a safer and more equitable work environment for women. However, overcoming challenges like under-reporting, inadequate awareness, and limitations of internal mechanisms remain crucial for maximizing the Act’s impact. By addressing these challenges through targeted interventions, awareness campaigns, and continuous improvement of ICCs, India can move closer to realizing the POSH Act’s true potential in building a harassment-free and truly equal workplace for all women.

REFERENCES

1. https://blog.ipleaders.in/posh-act-2013/ visited on 07-01-2024
2. https://indiankanoon.org/doc/1031794/ visited on 06-01-2024
3. Vishaka v. State of Rajasthan, (1977) 6 SCC 241
4. https://medium.com/nyaaya/the-history-behind-sexual-harassment-at-the-workplace-law-33f378af66be visited on 08-01-2024
5. https://muds.co.in/internal-complaints-committee-members-training-certification/ visited on 08-01-2024
6. https://www.legalserviceindia.com/legal/article-9723-the-sexual-harassment-of-women-at-workplace-prevention-prohibition-and-redressal-act-2013-posh-inquiry-committee.html#:~:text=The%20inquiry%20committee%20is%20constituted,no%20internal%20structure%20of%20the visited on 07-01-2024

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[1] Rupan Deol Bajaj vs. K.P.S. Gill, 1996 AIR 309

[2] Vishaka & Ors. v. State of Rajasthan & Ors, (1997) 6 SCC 241

[3] Aureliano Fernandes Vs. State of Goa and Others, Civil Appeal No(s). 2482 (2014)

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