SCOPE AND APPLICABILITY OF POSH & UNDERSTANDING THE WORKPLACES COVERED UNDER THE ACT WITH CASES

ABSTRACT

This article deals with the comprehensive scope and applicability of the Prevention of Sexual Harassment (PoSH) Act, enacted in 2013, to create secure working environments for employees. Examining a wide array of workplaces covered under the Act, including corporate offices, government institutions, educational establishments, and informal sectors, the discussion underscores the Act’s gender-neutral approach and its significance in preventing sexual harassment. By exploring notable cases that have influenced the interpretation and implementation of the Act’s regulations, this article sheds light on the evolution of legal frameworks addressing workplace harassment. From the landmark Vishaka case to recent judgments like Pune Municipal Corporation v. Harakchand Misirimal Solanki, these cases emphasize the imperative for employers to establish Internal Complaints Committees (ICCs) and adhere to due process. The article concludes by highlighting the pivotal role of the PoSH Act in fostering safe, inclusive workplaces and ensuring effective redressal mechanisms for victims of sexual harassment.

KEYWORDS

Sexual harassment, Prevention of Sexual Harassment, Secure workplace, Redressal.

INTRODUCTION

Sexual Harassment is a widespread and grave problem that impacts people irrespective any gender, geographical, cultural or socioeconomic distinction. This is an alarming issue that poses a significant challenge to the well-being and health, both mental and physical, of the individual. The workplace harassment is not a new concept and also the fact that individuals get sexually exploited at various instances is known to everyone. Due to harassment one out of every 7 women and one in every 17 men are reported to leave their work and look for alternatives.[1]

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was formulated in the year 2013 is a landmark legislation that prevents the act of sexual harassment of women at their workplaces. It also provides for the ways of redressal for the victims. It ensures a safe and respectful working environment for everyone. The POSH Act aims to foster a culture of zero tolerance for sexual harassment while holding both employers and individuals accountable for maintaining a workplace free from such misconduct. This legislation stands as a robust response to the pervasive issue of sexual harassment, acknowledging the fundamental right of every individual to work in an environment free from discrimination and harassment. The POSH Act is designed to address and prevent instances of sexual harassment in the professional realm, placing a significant emphasis on establishing procedures and mechanisms that empower individuals to seek redressal while imposing responsibilities on employers to create and maintain a safe working environment.

This Act extends to a wide range of workplaces, recognizing that sexual harassment is not confined to any specific industry or sector. The Act applies to both the organized and unorganized sectors, covering public and private enterprises, government offices, non-governmental organizations (NGOs), and even the informal sector. This inclusivity ensures that employees across diverse work environments benefit from the safeguards provided by the legislation.

SCOPE AND APPLICATION OF THE ACT

The Prevention of Sexual Harassment Act deals with any unwelcomed sexual advances, requests for the same or any other physical or verbal conduct of such sexual nature. The provisions of the Act deals with the following three types of physical harassment:

Touching or molestation
Verbal or non-verbal harassment including comments and gestures
Display of any such suggestive material.

The acts as well as behaviours are included in the definition of sexual harassment in the Act.

This act extends to all the workplaces irrespective of their size or formality of the works carried out. The POSH Act’s application to all workplaces, whether in the public or private sector, is among its most significant features. This implies that all employers must abide by the Act and provide a safe and secure work environment for women, regardless of the size or kind of their company. All women are covered under the POSH Act, regardless of their age, position, or religion. It follows that every woman has a right to be shielded from sexual harassment at work. Both official and informal workplaces, such as factories, offices, stores, and even residences, are covered under the POSH Act. This implies that the Act also provides protection to other unofficial workers, such as domestic workers.

Workplaces Covered under the PoSH Act:

Corporate Offices: The PoSH Act applies to corporate offices, where a significant number of harassment cases are reported. Corporates are required to establish Internal Complaints Committees (ICCs) to address complaints effectively and in a time-bound manner.
Government Offices: Government organizations are not exempt from the PoSH Act. To ensure a safe working environment, government offices must establish ICCs, similar to their private counterparts.
Educational Institutions: Recognizing the vulnerability of students and staff in educational institutions, the PoSH Act extends its coverage to schools, colleges, and universities. Institutions are mandated to create ICCs to address complaints promptly.
Non-Governmental Organizations (NGOs): NGOs, often working in sensitive areas, are not exempt from the PoSH Act. Establishing ICCs is crucial to maintaining a safe and secure environment within these organizations.
Hospitals and Healthcare Facilities: Healthcare settings are covered under the PoSH Act, emphasizing the need for a secure environment for both medical practitioners and support staff. ICCs play a vital role in addressing harassment cases in this sector.
Factories and Manufacturing Units: The Act recognizes the diverse nature of workplaces, including factories and manufacturing units. These settings are required to have ICCs to address sexual harassment complaints.
Informal Sectors: Acknowledging the prevalence of sexual harassment in the informal sector, the PoSH Act applies to small businesses, street vendors, and any workplace, formal or informal, where more than ten employees work.

The PoSH Act also mandates the establishment of Internal Complaints Committees (ICC) in workplaces employing more than 10 individuals. The ICC assumes the responsibility of receiving and investigating complaints related to sexual harassment. It plays a crucial role in ensuring a secure environment for complainants to report incidents, taking appropriate action against the accused, and offering support and assistance to the complainant.

Additionally, the PoSH Act outlines the formation of Local Complaints Committees (LCC) at the district level. The LCC is tasked with receiving and investigating complaints pertaining to sexual harassment from workplaces with fewer than 10 employees or in situations where the ICC has not been constituted.

Another significant aspect of the PoSH Act involves safeguarding the anonymity of complainants and witnesses. The Act specifies that the identities of complainants and witnesses must remain confidential unless explicit consent is provided. Employers are strictly prohibited from disclosing such information to any third party.

To ensure compliance, the PoSH Act includes provisions for penalties against employers failing to adhere to its stipulations. Employers found in violation of the Act may face fines or imprisonment for a period of up to three years.

Furthermore, the PoSH Act underscores the protection of the rights of the accused. It guarantees the accused an unbiased and fair inquiry, emphasizing that punitive measures should not be imposed without substantial evidence. This provision aims to balance the interests of all parties involved in the complaint resolution process.

CASE LAWS

Vishaka & Ors. v. State of Rajasthan & Ors.[2]

The Hon’ble Court took consideration of the International conventions sue to lack of legislature in the country related to sexual harassment. The Beijing Statement of Principles on independence of Judiciary in LAWASIA region was referred along with the provisions of the Convention on the Elimination of All Forms of Discrimination against Women.

Pramati Barua v. Ranjit Barthakur[3]

This case highlighted the need for an effective mechanism to address sexual harassment in the absence of specific legislation. The court emphasized the employer’s duty to prevent and redress sexual harassment at the workplace.

Pune Municipal Corporation v. Harakchand Misirimal Solanki[4]

In this case, the Bombay High Court reiterated the obligation of employers to implement the PoSH Act, emphasizing the significance of ICCs in addressing complaints. The court emphasized that non-compliance with the Act could lead to legal consequences for the employer.

CONCLUSION

The PoSH Act stands as a crucial legal framework that addresses the pervasive issue of sexual harassment at workplaces. Its comprehensive scope ensures that employees across various sectors and industries are protected. Understanding the workplaces covered under the Act is essential for employers and employees alike to create a safe and inclusive working environment. The case laws mentioned demonstrate the evolving legal landscape surrounding sexual harassment, emphasizing the need for strict implementation and compliance with the PoSH Act to foster a workplace free from harassment.

In conclusion, the Prevention of Sexual Harassment Act in India has played a pivotal role in shaping workplace dynamics. By exploring its scope and applicability across diverse sectors, and understanding the workplaces covered under the Act through case studies, we gain insights into the multifaceted nature of this legislation. The Act serves not only as a legal safeguard but also as a catalyst for cultural change, promoting environments that are free from harassment and conducive to the professional growth and well-being of all individuals. As we navigate the legal landscape of the PoSH Act, we embark on a journey towards safer, more inclusive workplaces in India.

REFERENCES

[1] Ponnambala Vignesh, What is the scope of POSH Act, Vakilsearch.com (August 17, 2023), https://vakilsearch.com/blog/what-is-the-scope-of-posh-act/

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

[3] Pramati Barua v. Ranjit Barthakur, 2005

[4] Pune Municipal Corporation v. Harakchand Misirimal Solanki, Civil Appeal No. 877 (2014)

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