Context: With improved access to education and employment, millions of Indian women are entering the country’s workforce today. Many working women face sexual harassment at the workplace on a daily basis. It is crucial therefore that as a country, we strive to eliminate workplace sexual harassment since women have the right to work in a safe and secure environment. Protection of women is necessary for gender equality and the development of the nation as a whole.
- GS I- Women and related issues
- GS II- Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.
|Workplace sexual harassment|
“You can tell the condition of a nation by looking at the status of its women.” – Pandit Jawaharlal Nehru
- Workplace sexual harassment is a form of gender discrimination which snatches the rights of women to work, equality to life coded under the Constitution of India under Articles 14, 15 & 21.
- Sexual harassment in the workplace not only is unacceptable behaviour, but it is also detrimental for the economy. It also reduces the opportunity for women.
- Moreover, such situations create an insecure and apprehensive environment for them.
- Apart from interfering their performance at the workplace, they got affected socially, personally and suffer the most emotionally.
|History of workplace sexual harassment-related laws and provisions in India|
- Although India has been tackling such problems and is been under the view of the courts and the government recognizing it as a grave violation of women’s rights ever since the Vishakha case in 1997 was viewed.
- Vishaka and others v. the State of Rajasthan:
- The case verdict became a landmark judgement issuing directions to the Union of India to enact an appropriate law for combating workplace sexual harassment.
- Article 19 (1) g of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business.
- This case established that actions resulting in a violation of one's rights to ‘Gender Equality’ and ‘Life and Liberty’ are in fact a violation of the victim's fundamental right under Article 19 (1) g.
- The case ruling established that sexual harassment violates a woman's rights in the workplace and is thus not just a matter of personal injury.
- This case ruling had issued Vishaka guidelines under Article 32 of the Constitution of India.
- The Supreme Court had made it mandatory that these had to be followed by all origination until a legislative framework on the subject has been drawn up and enacted.
- However, the legislative void continued and the Supreme Court in Apparel Export Promotion Council v. A.K Chopra ((1999) reiterated the law laid down in the Vishakha Judgment.
- However, Vishakha Guidelines were not being effectively implemented.
- Converting the letter into a writ petition, the Supreme Court took cognizance and undertook the monitoring of the implementation of the Vishakha Guidelines across the country.
- The Supreme Court asserted that in case of a non-compliance or non-adherence of the Vishakha Guidelines, it would be open to the aggrieved persons to approach the respective High Courts.
- Although, it took 16 long years to frame an Act called POSH Act, 2013.
- The POSH Act defines ‘sexual harassment’ in line with the Supreme Court’s definition of ‘sexual harassment’ in the Vishaka Judgment.
- The Justice JS Verma committee was set up after the Nirbhaya incident of December 2012 and submitted its recommendations on strengthening the laws to curb crimes against women.
- Some of these recommendations were included in the POSH Act, 2013.
|Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013|
The Act came into force from 9 December 2013.
Key provisions of the act
- Definition of sexual harassment:
- Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 defines sexual harassment:
It includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication: Physical contact and advances, sexually coloured remarks, showing pornography, A demand or request for sexual favours, Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
- Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 defines sexual harassment:
- Scope of the law:
- This Act lays down the procedures for a complaint and inquiry and the action to be taken.
- The Act also covers concepts of 'quid pro quo harassment' and 'hostile work environment' as forms of sexual harassment if it occurs in connection with any act or behaviour of sexual harassment.
- The definition of “aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
- An employer has been defined as any person who is responsible for management, supervision, and control of the workplace and includes persons who formulate and administer policies of such an organisation under Section 2(g).
- While the “workplace” in the Vishakha Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include:
- organisations, department, office, branch unit etc. in the public and private sector,
- organized and unorganized,
- nursing homes,
- educational institutions,
- sports institutes, stadiums, sports complex and
- any place visited by the employee during the course of employment including transportation.
- Even non-traditional workplaces which involve telecommuting get covered under this law.
- Internal Complaints Committee:
- 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.
- The Complaints Committees have the powers of civil courts for gathering evidence.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.
- The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
- The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality.
- Provisions for education and sensitisation programmes:
- The Act requires employers to conduct education and sensitisation programmes and develop policies against sexual harassment, among other obligations.
- The objective of Awareness Building can be achieved through Banners and Poster displayed in the premises, eLearning courses for the employees, managers and Internal Committee members, Classroom training sessions, Communication of Organizational Sexual Harassment Policy through emails, eLearning or Classroom Training.
- It is recommended that the eLearning or Classroom Training be delivered in the primary communication language of the employee.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to ₹ 50,000.
- Repeated violations may lead to higher penalties and cancellation of licence or deregistration to conduct business.
- The government can order an officer to inspect the workplace and records related to sexual harassment in any organisation.
|Through the Criminal Law (Amendment) Act, 2013, Section 354 A was added to the Indian Penal Code that stipulates what consists of a sexual harassment offence and what the penalties shall be for a man committing such an offence. Penalties range from one to three years of imprisonment and/or a fine. Additionally, with sexual harassment being a crime, employers are obligated to report offences.|
Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The Committee submitted its report on January 23, 2013.
Some of the key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 that was then pending in Parliament are provided below:
|Drawbacks and criticism of POSH Act|
- It was reported by the International Labour Organization that very few Indian employers were compliant to this statute.
- Most Indian employers have not implemented the law despite the legal requirement that any workplace with more than 10 employees needs to implement it.
- According to a FICCI-EY November 2015 report, 36% of Indian companies and 25% among MNCs are not compliant with the Sexual Harassment Act, 2013.
- The government has threatened to take stern action against employers who fail to comply with this law.
- Compliance to this statute has so far been left to the vagaries of the employers and government has not taken any significant step to enforce the law so far.
- For example, 6 months after the law came into effect, the state in UP remained dreadful as women could not participate in the workforce due to sexual harassment.
- The 2013 Act has entrusted the powers of a civil court to the Internal Complaints Committee (ICC) without specifying if the members need to have a legal background.
- This was a major lacuna given that the ICC formed an important grievance redressal mechanism under the framework of the act.
- The 2013 act only imposed a fine of ₹50,000 on employers for non-compliance with respect to the constitution of the ICC.
- This proved to be insufficient in ensuring that the employers constituted the ICC in a time-bound manner.
- There is a widening criticism of the act that it favours only one gender, which gives rise to false complaints.
- However, the Act, in no way inclined towards one gender. The Indian courts have time and again maintained the balance.
- The Courts in India have also started taking stern actions on false complaints filed under the POSH Act, which is a welcome move and will pave the way for the balanced approach to be taken towards the incidents of sexual harassment at the workplace.
- Recently, the Delhi High Court in the matter of Anita Suresh vs Union of India & Others dismissed the petition for its ‘lack of merit’ and ordered the costs of Rs. 50,000/- on the petitioner for filing a false complaint and misusing the provisions of the POSH Act.
- Anita Suresh’s judgement has the potential to what can possibly be a watershed moment in rethinking the provisions of the POSH Act from a different perspective.
- This decision also gives us a revelation as to how provisions of the POSH Act can also be misused for settling personal vendetta.
- The Court has rightly come to the aid of the Respondent who otherwise would have fallen victim to shaming and the surrounding social stigma that could have been fatal to both his personal and professional life.
- The need of the hour is that though we should be sensitive towards the cause at the same time should not get blinded by pre-conceived notions like ‘men are always wrong; women can never lie.’ The wronged woman must get justice but at the same time, a man should not be wronged as well. The principles of socialism and social justice should not be pushed to extremities so as to become a weapon in the hands of few to be misused for ulterior motives. The right balance must be struck. The workplace environment should be such that the harassment matters do not go unreported and at the same time men should not be made to undergo torture and humiliation on account of a false complaint.