By - Smita Paliwal on October 11, 2022
You can tell the condition of a nation by looking at the status of its women. - Pt. Jawaharlal Nehru
According to the Preamble of the Indian Constitution, "fairness of status and opportunity" must be guaranteed to every citizen; Article 14 of the constitution mandates that everyone is treated equally before the law [1].
The supreme court in the landmark judgement of Vishaka vs. UOI [2] had framed the guidelines and directed the government to enact legislation for women in the workplace in light of the provisions of the constitution and then the Parliament took a stance on this matter and enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013 (POSH Act) [3].
The POSH Law was enacted to safeguard women from sexual harassment and to promote empowering workplaces that acknowledge women's rights to equality of opportunity and status [4].
In India, deep-rooted beliefs of gender bias and discrimination confined women to the private domestic realm and allowed only men to earn livelihood for the family. But globalization has radically changed the scenario. However, with the rising number of women workforce, sexual harassment in the workplace has become more prevalent.
We can say that sexual harassment has become a pandemic that occurs daily and everywhere to which POSH Law is an antidote which was enacted to provide the much-needed legislative push to protect women from workplace sexual harassment.
Regardless of location, any workplace, establishment, corporation, or organisation (including NGO) that employs 10 or more people must comply with the POSH Law. The Act applies to all places that meet the criteria for a "workplace." [5]
Expanding the ambit of "workplace": The new legislation broadens the definition of "workplace" to include sports institutions, stadiums, employer-provided transportation, and any location an employee visits as part of or in connection with their employment. Thus, including those places that are directly or indirectly connected to employees' primary workplaces including work from home [6].
The maxim "prevention is better than cure" applies to the obligations of the employer as well. Several provisions under POSH Law that are mandatory are as follows:
The policy must specifically state what constitutes harassment in the online context and must make this information available across all channels of communication [7]. Workplace etiquette instruction must be included in the required POSH training. While a robust organisational policy against harassment is required, it is also widely acknowledged that the policy has to be reviewed periodically to reflect modern trends [8].
Following the Act, every employer, having 10 or more employees is mandated to create an "Internal Committee". Each committee must have four members, including a senior female employee, two or more employees, and one External Member either from an NGO that promotes women's rights or committed to the cause of women or anyone aware of the issues related to sexual harassment (these people must be nominated by the organization).
The District Officer, who must be either a D.M, ADM, or Collector, is given the authority to establish a Local Committee (LCC) in each district.
Following Clause 6(2) of the POSH Act, a Nodal Officer must be appointed by the District Officer in each block, taluka, and tehsil in the rural and tribal areas, as well as every ward or municipality in the urban area, to receive complaints and forward them to the appropriate LC within a seven-day window.
Within three months of the claimed incident, a sexual harassment complaint must be filed. The deadline may be extended with reasonable justification.
The aggrieved woman may ask the IC or LC to mediate the conflict with the respondent, depending on the circumstances. It further emphasises that no monetary settlement will serve as the foundation for conciliation.
Employers that violate POSH law in the following ways may be subject to a fine of INR 50,000:
If an employer violates the POSH Act more than once, they will face the following penalties:
Offences of the POSH Law are not only illegal but also harmful to the organisation:
The POSH Law envisages a serious need which emerges for women's rights to be upheld, safeguarded and fulfilled, particularly in the workplace. But laws can only give certain rights; thus, what matters more is how society, employers and employees come together to assert to safeguard and ensure a respectful and secure workplace for its women employees.
Right to work encompasses the right to work free from sexual harassment in the workplace. It necessitated a positive obligation on employers to ensure Sexual harassment-free employment for women employees.
Question 1: Is POSH Act mandatory in India?
The ACT mandates that all establishments, corporations, and organisations (public or private) that employ 10 or more people, regardless of gender, whether they are permanent, temporary, ad hoc, consultants, interns, or contract workers with more than 10 workers provide both employers and employees must have an Internal Committee in place.
It has been made required so that each employee and employer are aware of what constitutes workplace sexual harassment, how to report it, how to get the problem resolved, and what the repercussions and penalties are for non-compliance.
Question 2: What is the POSH Act?
In 2013, Parliament enacted an Act for the protection, prevention and redressal of women from sexual harassment in the workplace. This Act along with its several rules is called the POSH (Prevention of Sexual Harassment of women in a workplace) Law. The Act was created to protect women against sexual harassment in the workplace in any form, as well as to prevent and address sexual harassment complaints.
Question 3: How do you handle a POSH Complaint?
An Internal Committee that can foster an atmosphere of trust and confidence throughout the investigation is the first step in establishing a fair, quick, and unbiased inquiry process. By virtue of the delicate nature of sexual harassment cases, confidentiality is at the heart of every POSH investigation since sexual harassment situations are so delicate.
The Right to Information Act of 2005 expressly states that it does not apply to anything pertaining to the investigation's processes, the identities of the persons involved, the specifics of the type of sexual harassment the respondent committed, or information pertaining to conciliation.
[1] Kanskar, Shivi, and Debarati Pal. "Reconceptualizing Sexual Harassment: Extending the POSH Act, 2013." Jus Corpus LJ 2 (2021): 467.
[2] Vishaka v State of Rajasthan ((1997) 6 SCC 241)
[3] Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) POSH Act, 2013, No 14, Acts of Parliament, 2013 (India)
[4] Statement of Objects and Reasons, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
[5] Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013, No 14, Acts of Parliament, 2013 (India), sec 2(0).
[6] Silajit Guha vs. Sikkim University & Ors. (MANU/SI/0082/2020)
[7] https://indiacsr.in/what-is-the-purpose-of-having-a-corporate-posh-policy/
[8] By, Validated, et al. "Prevention of Sexual Harassment at Workplace (POSH) Policy & Process." Policy 3 (2021): 01.
[9] Section 4 of Sexual Harassment at workplace (Prevention, Prohibition and Redressal) Act 2013
[10] Section 6 of Sexual Harassment at workplace (Prevention, Prohibition and Redressal) Act 2013
[11] Section 9 of Sexual Harassment at workplace (Prevention, Prohibition and Redressal) Act 2013
[12] Sec. 10 of Sexual Harassment at workplace (Prevention, Prohibition and Redressal) Act 2013
[13] Section 3(2) of Sexual Harassment at workplace (Prevention, Prohibition and Redressal) Act 2013
[14] By, Validated, et al. "Prevention of Sexual Harassment at Workplace (POSH) Policy & Process." Policy 3 (2021): 01.
[15] Section 4(1), Sexual Harassment at workplace (Prevention, Prohibition and Redressal) Act 2013
[16] Section 13, 14 and 22 of Sexual Harassment at workplace (Prevention, Prohibition and Redressal) Act 2013.
[17] Section 26(1) of Sexual Harassment at workplace (Prevention, Prohibition and Redressal) Act 2013.
[18] Section 26(2)(ii), Sexual Harassment at workplace (Prevention, Prohibition and Redressal) Act 2013