Prevention of Sexual Harassment at workplace
Sexual harassment at a workplace violates women's fundamental right to equality, life and liberty under Article 14, 15 and 21 of the Constitution of India. It creates a work environment which is insecure, hostile and discourages women’s ability and performance at work leading to economic and social suffering. The legislature addressed this issue specifically in Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 which was enacted with the objective of protection of women against harassment at workplace and redressal of complaints of sexual harassment.
The need of POSH Act was taken into consideration by the Supreme Court for the first time in the matter Vishaka & Ors. vs. State of Rajasthan& Ors. The Supreme Court the then framed guidelines for all workplaces and institutions in the exercise of its power available under Article 32 of the Indian Constitution until legislation is enacted for the same purpose.
‘Sexual Harassment’ in the Vishaka Judgement includes “such unwelcome sexually determined behaviour (whether directly or by implication) as:
Physical contact and advances
A demand or request for sexual favours;
Sexually coloured remarks;
Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.
Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that 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), such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace. It is discriminatory, for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work (including recruiting and promotion), or when it creates a hostile working environment. Adverse consequences might result if the victim does not consent to the conduct in question or raises any objection thereto.”
Various provisions of the Indian Penal Code, 1863 and Industrial Employment (Standing Orders) Act, 1946 could also be triggered in a case of Sexual Harassment. The Supreme Court further in Convention on Elimination of All Forms of Discrimination against Women (CEDAW) (ratified in 1993 by the Government of India) incorporated basic principles of human rights provided under the Indian Constitution.
DIVERGENCE IN IMPLEMENTATION OF POSH ACT 2013
Even though the prevention of sexual harassment at workplace Act has been in force since 2013, there are many aspects which lacks clarity such as investigation procedure, remedies available to the victim, criminal consequences etc. and because of this many actions like inappropriate comments and jokes are disregarded as casual workplace culture rather than sexual harassment leaving the victim no choice but to not take any action against it. The parts of sexual harassment which are still ridiculed and disbelieved are the areas which need greater enforcement and awareness.
Gaps in the POSH Act:
1. Employers who have more than 10 employees due to lack awareness of the act have yet not implemented the Act and due to this cases are being unreported.
2. Lack of knowledge of understanding the difference between harassment and sexual harassment.
3. ICC is not preparing the annual mandatory report.
4. ICC’s being negligent of reporting the matters to the police in violation of Section 11. Therefore, the complainant registers an FIR deterring internal investigation by Police.
5. POSH Act is limited to women only. Should have been gender-neutral
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013
Determination of what constitutes sexual harassment is defined under section 2(n) of the Act. The POSH Act further also provides the following circumstances among other circumstances under which an act may amount to sexual harassment:
implied or explicit promise of preferential treatment in her employment; or
the implied or explicit threat of detrimental treatment in her employment; or
the implied or explicit threat about her present or future employment status; or
interference with her work or creating an intimidating or offensive or hostile work environment for her; or
humiliating treatment likely to affect her health or safety.
The High Court of Delhi in the matter of Shanta Kumar vs. CSIR & Ors. held that
"Undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour. ...a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment."
INTERNAL COMPLAINTS COMMITTEE
As per the Act for the purpose of initiating an investigation and to redress and hear the complaints with respect to sexual harassment an Internal Complaints Committee (ICC) should be formulated at every office of any organization or institution consisting of more than 10 employees. Failure to constitute the ICC will lead to imposition of a fine under the POSH Act.
Constitution of the Internal Complaints Committee:
Presiding Officer: Woman employed at the workplace on a senior level. Members: Not less than 2 members from amongst employees. Preferably the employees who have committed to the cause of women or have had experience in social work or have legal knowledge.
External member: From an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment.
Here, (a) not less than half of the ICC Members shall be women; (b) the term of the ICC Members shall not exceed 3 years; (c) for conducting an inquiry a minimum of 3 Members of the ICC including the Presiding Officer are to be present.
The High Court of Delhi in the matter of Ruchika Singh Chhabra vs. M/s Air France India and Anr.stated that "… the ICC should be constituted in strict compliance with the requirements under law...".
The act further provides for setting up of a Local Committee (LC) for inquiry into the matters of sexual harassment in every district by the District Officer and such Local Committee shall have the same powers as of a civil court.In an unorganized sector or where the number of employees is less than 10 and if the complaint is against the employer itself or any third party who is not an employee of the organization the Local Committee shall inquire into the matter.
Constitution of the LC:
1. Chairperson: An eminent woman in the field of social work and cause of women.
2. Local Woman: A women working in block, tehsil/ ward/ municipality in the district.
3. NGO members: Two members, out of which, atleast one shall be a woman to be nominated from a NGO or an association committed to the cause of women or a person familiar with issues pertaining to sexual harassment.
Here, atleast one of the members should have a background in law and atleast one of the members should be a woman belonging to the Scheduled Castes or Scheduled Tribes.
A woman aggrieved under the POSH Act can file a written complaint within three months from the date of the incident and in the matter of series of incidents, within three months from the last incident to ICC/LC. The committee can condone any delay in filing the complaint for up to further three months. In case the aggrieved woman is physically or mentally incapable of making the complaint, her appointed person or legal heirs as mentioned under Section 9(2) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules of 2013 may file a complaint.
CONCILIATION AND INQUIRY
Before initiating an inquiry when the committee receives a complaint, it may try to settle the issue between both the parties through conciliation and if such conciliation works then there is no need of conducting a further inquiry. If no settlement arrives or any term of the settlement has not been complied with, the committee shall continue with the inquiry.
In the matter of a domestic worker or a worker from the unorganized sector, the Local Committee shall forward the complaint to the police for registering under Section 509 of the Indian Penal Code of 1860 or any other provisions where applicable, within a period of seven days if prima facie case exists.
If both the parties are employees; they both will be given an opportunity to be heard and will be allowed to make representations of the matter in front of the committee as per the principle of natural justice. The committee is required to complete the inquiry for a complaint within a period of 90 days and certain interim reliefs can be granted to the aggrieved woman during the period of pendency of inquiry. The committee shall have the same powers as are vested in a civil court for the purpose of the inquiry.
After completion of the inquiry, the committee shall provide the report of its findings to the concerned parties, employer/ District Officer within 10 days after completion. If the committee finds the allegation against the respondent proved it shall recommend the employer/ District Officer to take any action against the respondent for sexual harassment under the rules prescribed by the policy of the organization or in case if no such rules are made, as under Rule 9 of the POSH Rules and to pay from the respondent’s salary the aggrieved woman such sum as it considers appropriate under section 15. The employer/ District Officer is required to act upon the committee recommendations within 60 days of receiving the reports.
If a false or malicious complaint is filed by the aggrieved woman or any false evidences were presented, the committee may recommend the employer/ District Officer to take appropriate action under the rules prescribed by the policy of the organization or in case if no such rules are made, as under Rule 10 of the POSH Rules.
An appeal can be filed by any of the parties against the recommendations made by the committee before the court or tribunal, within 90 days from the recommendations.
Taking the sensitivity attached to the sexual harassment matter the identity of the aggrieved woman, respondent, witnesses including the contents of the complaint, inquiry proceedings or recommendations of the committee, except information regarding the justice secured to any victim of sexual harassment are prohibited for any publication under section 16 of the Act and upon contravention of the same such person shall be liable for a penalty in accordance under the rules prescribed by the policy of the organization or in case if no such rules are made, as under Rule 12 of the POSH Rules.
DUTIES OF THE EMPLOYER AND DISTRICT OFFICER
The Act under Section 19 and 20 lays down certain duties of the employer and District Officer respectively. These duties include creating awareness on sexual harassment at workplace, sensitize the employees, promote a gender-sensitive workplace, assist the complaints committee in conducting the inquiry, act upon recommendations of the committee, monitor timely submissions of reports of the committee etc.
If there is a non-compliance of the provisions of the Act on the part of the employer it may result in a fine which may extend to fifty thousand rupees may be imposed on the employer and the repetition of such non-compliance can also lead to cancellation of their license or withdrawal, or non-renewal, or approval, or cancellation of their registration, as the case may be.
While the act aims at providing every woman with a safe and dignified workplace since 2013, the awareness regarding the consequences of sexual harassment and its redressal is limited. The effective implementation of the Act not only requires creating a workplace environment where women or any employee can speak up about their grievances without fear and get justice but sensitization of men towards the treatment of women at workplace is equally necessary.
Author : Loveleen Mishra