POSH Act, 2013: Empowering “the Women”

Background

Since the landmark judgement of Vishaka v. State of Rajasthan (“Vishaka Judgment-1997”), there was a requirement of a strong Law to curb Sexual Harassment and to provide a safe workplace to women. Females are Sexually harassed at most of the workplaces in different ways and to reduce it, one must understand the law protecting their interest and seeking the effective redressal of complaints.

Sexual Harassment violates a woman’s Fundamental Right to Equality and Right to Life, guaranteed under Articles 14, 15 and 21 of Constitution of India. It doesn’t only put them through physical and emotional suffering but also affects their performance at workplace and thereby their social & economic growth.

After Vishaka judgement, India took the cognizance of discrimination against Women for the first time and place its reliance on the Convention on Elimination of All Forms of Discrimination against Women, which was ratified by India in 1993. Since then continuous efforts were made to put in place a strict and effective law on the prevention, prohibition & redressal of sexual harassment of women at workplace by the Ministry of Women and Child Development, India in 2013.

Important Definition to be covered

“Aggrieved Woman” In relation to a workplace, an aggrieved woman is a woman who is subject to sexual harassment at a workplace. She can be an employee or even a customer who had to face such harassment as defined under clause (a) of Section 3.

“Employee” a person employed on regular or temporary, ad hoc or daily wage basis or on the payroll of company or through contractor, for remuneration or not or working on a voluntary basis. The definition includes a co-worker or a probationer, trainee, apprentice.

“Domestic worker” is a woman who is employed to do the household in a dwelling house directly or indirectly on a temporary basis or full time, the definition does not cover a family member.

“Employer” means a person responsible for the management or controls of the workplace in general including the Board and for government departments, the head of such department can be termed as employer or any other person specified as such.

“Workplace” POSH applies to whole of India in organized as well as unorganized sector. The applicability is very wide, the same has been defined as workplace. Workplace includes but not limited to Government Departments, Establishments or Private and Public sector Enterprises, or service provider carrying Vocational, Educational, Entertainment, Industrial, Financial activities, Hospitals, Educational Institutes, Sports Institutions used for training individuals and also includes to a dwelling place or a house. Workplace also includes a place visited by employee for official purpose including the transportation.

What amounts to Sexual Harassment???

As per POSH Act, Sexual Harassment includes

1. physical contact and advances
2. a demand or request for sexual favours
3. making sexually coloured remarks
4. showing pornography

any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

In addition to the above, the existence of following circumstances in relation to any act or behaviour of sexual harassment may amount to sexual harassment:

1. implied or explicit promise of preferential treatment in her employment, [Quid Pro Quo]
2. implied or explicit threat of detrimental treatment in her employment, [Blackmail]
3. implied or explicit threat about her present or future employment status, [to Pressurise]
4. interference with her work or creating an intimidating or offensive or hostile work environment for her [intimidate]
5. humiliating treatment likely to affect her health or safety, [Hostile]

As we understand the wider definition of Sexual Harassment, it is something which is unwelcome by the recipient and unwanted in general. A conduct may be unobjectionable for one person while offensive to another.

Sexual Harassment covers verbal or non-verbal conduct even the written ones. A respondent who is in power may use such power to pressurize the woman for sexual favors in exchange for promotion in the workplace or can threat to the woman to adverse employment action. Also, Sexual harassment includes intimidate, offensive or hostile working environment’. Few of the acts are offensive inherently while few of them need clarification as there is a thine line of difference between harassment and casual discussions as normally happens. The responsibility to prove lies on Internal Committee (ICC) base on the act & circumstances.

Internal Compliant Committee:

POSH envisages the employers to constitute an Internal Compliant committee (ICC) at a workplace where 10 or more employees are employed. If the employer fails to set up such committee, they will be liable to the punishment. The tenure of ICC committee member is 3 years and at least half members shall be women.

1. implied or explicit promise of preferential treatment in her employment, [Quid Pro Quo]
2. implied or explicit threat of detrimental treatment in her employment, [Blackmail]
3. implied or explicit threat about her present or future employment status, [to Pressurise]
4. interference with her work or creating an intimidating or offensive or hostile work environment for her [intimidate]
5. humiliating treatment likely to affect her health or safety, [Hostile]

As we understand the wider definition of Sexual Harassment, it is something which is unwelcome by the recipient and unwanted in general. A conduct may be unobjectionable for one person while offensive to another.

Sexual Harassment covers verbal or non-verbal conduct even the written ones. A respondent who is in power may use such power to pressurize the woman for sexual favors in exchange for promotion in the workplace or can threat to the woman to adverse employment action. Also, Sexual harassment includes intimidate, offensive or hostile working environment’. Few of the acts are offensive inherently while few of them need clarification as there is a thine line of difference between harassment and casual discussions as normally happens. The responsibility to prove lies on Internal Committee (ICC) base on the act & circumstances.

Internal Compliant Committee:

POSH envisages the employers to constitute an Internal Compliant committee (ICC) at a workplace where 10 or more employees are employed. If the employer fails to set up such committee, they will be liable to the punishment. The tenure of ICC committee member is 3 years and at least half members shall be women.

Constitution of the IC

Disqualification of ICC Members:

There are many situations when a ICC member shall be disqualified to become a ICC Member.

1. Where the ICC member disseminates the information related to the POSH complaint, or
2. The Member is convicted for an offence or investigation is pending
3. The member has been found guilty in any disciplinary proceedings or any proceeding is pending.
4. has so abused his position in such manner as his continuance will be prejudicial to the public interest.

Punishment for non-constitution of internal Committee

If the employer fails to constitute the committee, it shall be liable to a fine of Rs. 50,000 and upon the repetition, the penalty shall be doubled and even the license for carrying out the business of employer shall also be cancelled or revoked.

Local Committee

Government is required to constitute a Local committee at District Level to investigate and redress the complaints of sexual harassment of unorganized sector or where the IC is not required to be constituted or where the complaint is against the employer itself.

Constitution of Local Committee

• Atleast one of the members should have a background in law
• Atleast one of the members should be a woman belonging to the Scheduled Castes or Scheduled Tribes.

Complaint of sexual harassment-

A complain of Sexual Harassment can be made in writing within 3 months of such incident by the aggrieved women and if the aggrieved woman is incapable of making the complaint, her legal heir or friends, relatives, co-workers, psychologist & psychiatrists, etc. Where the woman is dead, a complaint can be filed by anyone aware of the incident with the permission of legal heir. If there are series of incident, the complaint must be filed within 3 months from the last day of such incident. An extension of another 3 months can be provided by the committee if proper reasons stated for non-reporting of such incident in due course.

The complaint must be made in 6 copies to the committee. It should include the supporting documents and the names and addresses of the respondents & witnesses along with time and date of incident. PSOH Act does not prescribe any specified format therefore it must be clear and in simple language to ease the enquiry process.