Context:- An employee of the Supreme court has alleged the Chief Justice of India Ranjan Gogoi sexually harassing her. The Chief Justice labeled the allegations as a plot and a threat to the independence of the judiciary.
The much-acclaimed Vishaka judgment with relevant supreme court guidelines had become the basis of a new law on the prevention of sexual harassment of women in the workplace. POSH, as it was commonly referred to, provided for the process in which sexual harassment complaints should be addressed, investigated and acted upon.
Therefore, there is a need for these guidelines to be applicable to the judiciary as well.
What constitutes sexual harassment at the workplace?
The Vishaka guidelines define sexual harassment any unwelcome sexually determined behavior (whether directly or by implication). These are:
- Physical contact and advances
- A demand or request for sexual favors
- Sexually colored remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
The Act specifies five circumstances that amount to sexual harassment. These are:
- Implied or explicit promise of preferential treatment in her employment
- The implied or explicit threat of detrimental treatment
- The 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 is likely to affect her health or safety.
The Act mandates that every organization with 10 or more employees set up an internal complaints committee or ICC at each office or branch.
The Act defines as “victim” any woman “of any age whether employed or not”, who alleges to have been “subjected to any act of sexual harassment”
According to the Act, the complaint of sexual harassment has to be made “within three months from the date of the incident”.
However, the ICC has the discretion to “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”.
Once a complaint is made, the ICC can offer conciliation under Section 10 of the Act. ICC has to complete its investigation within 90 days.
If the ICC finds the allegations true, it will recommend to the company to take action against the accused of misconduct in accordance with the provisions of the service rules. The ICC can also recommend financial damages to the complainant.
Once the ICC furnishes its recommendations, the aggrieved woman or the respondent can challenge the report in a court of law within 90 days.
If the ICC finds the complaint to be false, the Act says, it may recommend action against the woman or the person who has made the complaint.No action can be recommended against the complainant unless an inquiry establishes malicious intent on part of the complainant.