Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act)

In News

• Recently, Kerala High Court asked organisations associated with the film industry to take steps to constitute a joint committee to deal with cases of sexual harassment of women.

About

• POSH Act: 
  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013, defining sexual harassment, laying down the procedures for a complaint and inquiry, and the action to be taken.
• Constitutes:
  •  It defines sexual harassment, 
  • lay down the procedures for a complaint and inquiry, and 
  • the action to be taken. 
• Successor to:
  • It broadened the Vishaka guidelines, which were already in place.

Vishaka Guidelines

• About: 
  • The Vishaka guidelines were laid down by the Supreme Court in a judgement in 1997. 
  • This was in a case filed by women’s rights groups, one of which was Vishaka. 
• PIL:
  • They had filed a public interest litigation (PIL) over the alleged gangrape of Bhanwari Devi, a social worker from Rajasthan. 
  • In 1992, she had prevented the marriage of a one-year-old girl, leading to the alleged gangrape in an act of revenge.

Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013

• Highlights of the Act:
  • Definition: 
    • The Act defines sexual harassment at the workplace and creates a mechanism for redressal of complaints.  
    • It also provides safeguards against false or malicious charges.
  • Obligation: 
    • Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.  
    • The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
  • Complaint Committees: 
    • The ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath, and  requiring the discovery and production of documents.
    • The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant. 
    • The ICC may either forward the victim’s complaint to the police, or it can start an inquiry that has to be completed within 90 days. 
  • Sexual harassment defined:
    • sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:
      • Physical contact and advances
      • A demand or request for sexual favours
      • Sexually coloured remarks
      • Showing pornography
      • Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
  • Victim could be:
    • Aggrieved victim could be a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”.
    • This meant that the rights of all women working or visiting any workplace, in any capacity, were protected under the Act.
  • 5 circumstances:
    • The Act mentions five circumstances that amount to sexual harassment:
      • Implied or explicit promise of preferential treatment in her employment; 
      • implied or explicit threat of detrimental treatment; 
      • implied or explicit threat about her present or future employment status; 
      • interference with her work or creating an offensive or hostile work environment; 
      • humiliating treatment likely to affect her health or safety.
  • Complaint procedure:
    • Technically, it is not compulsory for the aggrieved victim to file a complaint for the ICC to act. 
    • The Act says that she “may” do so and if she cannot, any member of the ICC “shall” render “all reasonable assistance” to her to complain in writing. 
    • If the woman cannot complain because of “physical or mental incapacity or death or otherwise”, her legal heir may do so.
  • Time:
    • The complaint must be made “within three months from the date of the incident”. 
    • However, the ICC can extend the time limit if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
  • Possibility of conciliation:
    • The ICC may, before inquiry, and at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation, provided that no monetary settlement shall be made as a basis of conciliation.
  • Punishment: 
    • Penalties have been prescribed for employers.  
    • Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000.  
    • Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.  
    • Compensation: 
      • Compensation is determined based on five aspects: 
        • suffering and emotional distress caused to the woman; 
        • loss in career opportunity; 
        • her medical expenses; 
        • income and financial status of the respondent; and 
        • the feasibility of such payment.
• Domestic Worker:
  • According to the Act, a domestic worker means a woman who is employed:
    • To do the household work in any household for remuneration whether in cash or kind
    • Either directly or through any agency
    • On a temporary, permanent, part-time or full-time basis
    • For remuneration whether in cash or kind 
  • Therefore, a domestic worker is protected under the Act and has the right to seek redressal from the local complaints committee (LC) when they are sexually harassed at their workplaces.
  • Domestic workers are separately defined under Section 2(e) of the POSH Act.

Key Issues and Analysis

• There could be feasibility issues in establishing an Internal Complaints Committee at every branch or office with 10 or more employees.
• The Internal Complaints Committee has been given the powers of a civil court.  However, it does not require members with a legal background nor are there any provisions for legal training.
• The Bill provides for action against the complainant in case of a false or malicious complaint.  This could deter victims from filing complaints.
• Two different bodies are called the ‘Local Complaints Committee.  The Bill does not clearly demarcate the jurisdiction, composition and functions of these Committees.
• Unlike sexual harassment legislation in many other countries, this Bill does not provide protection to men.

Way Ahead

• Giving such protection to Women will not only make them more free to work but will provide more avenues for foreign citizens to come here for job prospects. 
• Overall, it will put India in good light but its ardent implementation is necessary.
• Also, each citizen should be seen equally in the eyes of law and hence the law should expand to include even Men.

Source: IE