The effectiveness of the new Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 in addressing workplace harassment in India.

This article is written by Samriddhi Kapoor, University Of Petroleum & Energy Studies School Of Law.

ABSTRACT 

Traditionally, women in India are expected to stay at home and take care of their children, while men are expected to work. With increasing literacy, access to education, and the Industrial Revolution. All over the world, women have stepped out of their homes and started working. Although women have traditionally been with their families, domestic help, even as caregivers since ancient times. All these are considered secondary works and rarely acknowledged. Women continue to be exploited because they work without rights. The framers of the Constitution understood this and gave equal rights to all. Regardless of gender, race, creed, or social status. In Article 15, the Indian constitution seeks equality and provides special laws for the poor and women. Even today, the status of women is not the same as men. There is a need for laws that help women take their rightful place in society. Gender identity is accepted to ensure gender equality in India. The Sexual Harassment of Women in the Workplace Act 2013 is a welcome addition to this legislation. Recently it has attracted a lot of praise and criticism.

The purpose of this research paper is to examine the impact of this law on society.

KEYWORDS-  Protection, Women, Sexual Harassment, POSH Act 2013.

INTRODUCTION 

Sexual violence in the workplace is a violation of women’s rights to equality, life, and liberty. It creates an unstable and inhospitable work environment that discourages women from working, undermines social and economic empowerment, and undermines inclusive development goals1. The Sexual Harassment of Women at Work (Prevention, Prohibition and Redress) Act was drafted with this principle in mind.

No matter how hard we try to protect, ban, prevent, and remedy, such violations will always happen. Crimes against women are considered the weakest members of society. As a result, women are subjected to atrocities like foetus, human trafficking, stalking, sexual harassment, sexual assault, and the most heinous crime, rape. It is illegal to harass someone (whether a candidate or an employee) because of their gender.

The Supreme Court first recognized the need for such a law in Vishaka v State of Rajasthan.¹ Although there is no law to combat sexual harassment of women workers, the Supreme Court has issued guidelines to all workplaces or institutions until laws are passed to address the issue. The Supreme Court has cited the fundamental human rights principles contained in the Constitution of India under Articles 14, 15, 19 (1) (g) and 21 as well as the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).). This was approved by the Government of India in 1993. The directive of the Supreme Court should be recognized as law as stipulated in Article 141 of the Constitution.

1. https://www.kelphr.com/pdf/Effectiveness%20of%20Sexual%20Harassment%20of%20Women%20at%20Workplace.pdf VISITED ON 03-04-2023.

OBJECTIVE 

As more women enter the workforce in India’s growing economy, the scourge of sexual violence has reared its ugly head in several sectors. From the police and the military to multinational corporations and sports, no sector of human activity is spared. Legislation is needed to protect the rights of these working women. As with most statutes. 

EVOLUTION OF THE LAW ON WORKPLACE SEXUAL HARASSMENT 

One of the pillars of the Indian constitutional structure was the abolition of discrimination on the basis of sex. Gender equality is enshrined in the preamble of the Constitution, fundamental rights, fundamental duties and directive principles. However, the Supreme Court of India (“Supreme Court”) first recognized sexual harassment in the workplace in its landmark judgment in Vishaka v. State of Rajasthan (“Vishaka Judgment”) in which the Supreme Court laid down certain rules and directed the Union of India to enact a suitable law for combating sexual harassment in the workplace. The POSH Act and Rules were implemented 16 years after the Vishaka decision, which is no less ironic.

Although there is no specific law in India, the Supreme Court in the Vishaka Tribunal laid down certain guidelines that oblige employers to provide mechanisms for redressal of grievances related to sexual harassment in the workplace (“Vishaka Guidelines”). POSH is followed until Act becomes effective.

• VISHAKA JUDGEMENT 

Bhanwari Devi, a Dalit woman working for the Government of Rajasthan’s rural development program, was viciously gang raped in 1992 because of her attempts to end the then-common practise of child marriage.² This incident brought to light the dangers that working women face daily, emphasising the importance of putting safeguards in place. Under the banner of Vishaka, women’s rights activists and attorneys launched a public interest litigation in the Supreme Court on behalf of the country’s working women.

For the first time, the Supreme Court recognized a legislative loophole and recognized sexual violence in the workplace as a violation of human rights.

violation of the Supreme Court relying on the Convention on the Elimination of All Forms of Discrimination Against Women adopted by the United Nations General Assembly in 1979 and signed and ratified by India.

According to the Vishaka Court, the Vishaka Regulations issued under Article 32 of the Constitution shall have the force of law and shall be enforced by private and public sector organizations until such time as the legislation is enacted.

According to the Vishaka decision, ‘Sexual Harassment’ encompasses such unwelcome sexually determined behaviour (whether directly or indirectly) as

1. Physical contact and advances
2. A demand or request for sexual favours. 
3. Sexually charged statements. 
4. Displaying pornography. 
5. Any other unwanted sexual physical, verbal, or nonverbal activity.

When any of these acts are committed in circumstances in which the victim of such conduct has a reasonable fear that such conduct can be humiliating and may constitute a health and safety problem in relation to the victim’s employment or work (whether she is drawing a salary or honorarium or voluntary service, whether in government, public or private enterprise), it amounts to sexual harassment in the workplace.

• 1997 6 SCC 241: AIR 1997 SC 3011 VISTED ON 03-04-2023. 

• POST VISHAKA SOME OTHER JUDGEMENTS 

APPAREL EXPORT PROMOTION COUNCIL V.    AK CHOPRA (1999) I SCC 759 ³ 

The Vishaka decision sparked a national conversation about workplace sexual harassment and exposed an issue that had been brushed under the rug for far too long. After Vishaka, the first case before the Supreme Court in this regard was Apparel Export Promotion Council v. A.K Chopra.4 In this case, the Supreme Court supported the removal of a higher official of the Delhi-based Apparel Export Promotion Council who was found guilty of sexually harassing a junior female employee at work. In this decision, the Supreme Court broadened the definition of sexual harassment by declaring that physical contact was not required for it to be considered an act of sexual harassment. According to the Supreme Court, “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, requests for sexual favors, 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 affecting the female employee’s employment and unreasonably interfering with her work performance.”

• (1999) I SCC 759 VISTED ON 03-04-2023. 

Sexual harassment claims in the workplace not only damage an employer’s reputation, but they may also land them in legal problems. Without a doubt, workplace sexual harassment is one of the most delicate issues that must be handled with extreme attention and respect. Employers must be truly concerned about the well-being of women at work, rather than simply enforcing the POSH Act, according to the Bombay High Court in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University.

In Somaya Gupta v. Jawaharlal Nehru University and Others, the Delhi High Court ruled that mere suspicion of bias is insufficient to remove a member from the IC. The court emphasised the necessity of presenting a real possibility of prejudice rather than a mere fear, citing previous Supreme Court judgements in this regard.

The Kerala High Court rejected the IC’s order to terminate the accused in Dr. T.V. Ramakrishnan v. Kannur University, stating that the IC had not followed the law’s protocol in conducting the probe. The accused in this instance were not given a copy of the complaint or the IC’s findings until the investigation was completed.

OVERVIEW OF THE POSH ACT 2013 

The Indian government passed the Women from Sexual Harassment Act in 2013 to protect women from sexual harassment and abuse in the workplace. This law was enacted to prevent sexual violence in the workplace and to ensure a safe and secure environment for women.

It also aims to raise awareness about the topic of sexual violence and offer victims the legal remedies they need. The POSH Act 2013 requires organizations to set up an Internal Indictment Committee (ICC) to deal with allegations of sexual harassment and create a safe work environment for female employees.

The POSH Act is an important step towards ensuring that women in India have a safe and respectful workplace.

 KEY PROVISIONS OF THE POSH ACT 2013 INCLUDE 

The POSH Act was enacted to protect women from sexual harassment in the workplace. This law requires employers to provide a safe and secure work environment for female employees. It also requires employers to establish an Internal Complaint Committee (ICC) within their organization to handle sexual harassment complaints.

1. Every employer is obligated to post a notice in the workplace outlining the protections provided to female employees against sexual harassment.
2. Employers must form an Internal accusations Committee in their firm to handle sexual harassment accusations.
3. The ICC must be led by a woman, and at least half of its members must be female.
4. Employers must take action to avoid sexual harassment and to protect victims from victimisation and discrimination.
5. Employers must offer the complainant with the appropriate support and assistance, as well as make provisions for her job if she is transferred.

The POSH Act is critical in ensuring that women work in a safe and harassment-free workplace. It safeguards women’s rights and protects them against sexual harassment in the workplace.

STATEMENT AND OBJECT OF POSH ACT 

When a person, a group, or a section of society conducts acts that are harmful to another person, group, or section of society, the current social system is ineffective in halting such acts. Such circumstances necessitate regulations that are adopted and enforced through the state apparatus in order to serve as a deterrent through fines, penalties, or damages, among other things. As more women entered the workforce and confronted new obstacles in the workplace, it became necessary to implement the current Act.

Any statute can be understood and interpreted by reading its introduction and statement of Objects and Reasons,’ which elucidate on the rationales that led to the act’s introduction. According to the Act’s Statement of Objects and Reasons, sexual harassment violates women’s fundamental rights to equality, life, and liberty under Articles 14 and 15 of the Indian Constitution, as well as their right to life and dignity under Article 21 of the Constitution. It is also vital to highlight that sexual harassment is a violation of people’s freedom to practise any profession or carry on any occupation, trade, or business, which includes the right to be free from sexual harassment in the workplace.

The Act’s Statement of Objects and Reasons incorporates Article 11 of CEDAW as one of its Objects and Reasons, which requires States Parties to adopt all relevant steps to eliminate employment discrimination against women. Sexual harassment is one example of gendered violence that can substantially affect women’s workplace equality. This legislation also includes protections that protect all women, regardless of job status. Furthermore, the Statement of Objects and Reasons recognises that the Supreme Court has issued guidelines to handle this issue until proper legislation is passed.

CHALLENGES IN IMPLEMENTING THE POSH ACT 2013

The POSH Act 2013 was introduced in India to protect women in the workplace from sexual harassment. Despite its noble aims, there have been some challenges in implementing the Act: 

1. Awareness of the law is still low in some areas, making it difficult for victims to report incidents.
2. Many organizations still need a grievance redressal mechanism or make no effort to inform employees of their rights under the law.
3. Workplace culture may be a major factor in the prevalence of sexual harassment that employers and organizations must address.
4. With proper education and awareness, the POSH Act 2013 can be effective in protecting women from sexual harassment and promoting a safe workplace.

CONCLUSION 

Sexual harassment is an age-old practise that has overcome all societal borders, such as race, gender, sex, and color, in both developed and developing countries. An individual can encounter sexual harassment in the workplace regardless of their gender. There are a number of factors that contribute to workplace harassment, including gender discrimination, insufficient distribution, favouring character, and the harasser’s worldview. Sexual harassment includes not just seeking sexual favours and unwelcome physical contact, but also the psychological strain felt by the harasser as a result of sexual assault, coercion, or unwanted sexual attention.

To encourage greater reporting, the POSH Act should contain clarification of applicability, accountability, implementation, and monitoring. In order to attain high workplace productivity, companies and authorities must adopt, implement, and encourage best practises for detecting and responding to workplace harassment. The most effective strategy to avoid such hazardous working situations is to actively advocate for measures that raise awareness and encourage prevention efforts.