Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act)

We live in a patriarchal world that promotes masculinity while discards or degrades femininity. Many women even in the so-called developed nations of the west are constantly subjected to sexual harassment in every part of their life. Indian government to curb the menace of sexual harassment from our workplaces brought the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act (POSH Act) in 2013.

While the effectiveness of the act in curbing sexual harassment still leaves a lot to be desired, it mustn’t be forgotten that in a country like India which is steeped in its heritage and where many women still do not have basic education, it is rather revolutionary to consider that a law was brought to curb the evil of sexual harassment from the workplace.

What is Sexual Harassment

While there is no universal definition for sexual harassment, Supreme Court in Vishakha v. the State of Rajasthan in 1997 gave a definition as;

“Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as

1. physical contact and advances;
2. a demand or request for sexual favours;
3. sexually-coloured remarks;
4. showing pornography;
5. any other unwelcome physical, verbal or non-verbal conduct of sexual.”

However, the POSH Act defines it as any act or behaviour   

1. implied or explicit promise of preferential treatment in her employment; or
2. implied or explicit threat of detrimental treatment in her employment; or
3. implied or explicit threat about her present or future employment status; or
4. interference with her work or creating an intimidating or offensive or hostile work environment for her; or
5. humiliating treatment likely to affect her health or safety.

According to International Labor Organization (ILO) sexual harassment is any unwanted sexual conduct that creates an intimidating, hostile, or offensive work environment in the reasonable opinion of the recipient.

About POSH Act

• POSH Act was evolved from the Vishakha Guidelines given by Supreme Court to prevent sexual harassment in work place.
• Vishakha Guidelines were inspired by various international conventions such as the Beijing Declaration at the Fourth World Conference on Women, and the Covenant on Elimination of Discrimination against Women.
• POSH Act was enacted to give a wider scope to the guidelines and to prescribe measures of grievance redressal in case of noncompliance.
• As per the Act, a woman who reports instances of sexual harassment at work has the right to pursue civil as well as criminal remedies.

Provisions under POSH Act

Internal Complaints Committee:

• As per Section 4 of the POSH Act, every office or branch of an organization employing ten or more employees must have an internal committee dedicated to hearing and resolving sexual harassment complaints

Local Committee:

• Local Complaints Committee must be formed at the district level for the purpose of handling complaints of sexual harassment in the workplace when there is no internal mechanism in place under Section 5 of the POSH Act.

Procedure of complaint:

• Under Section 9 of the POSH Act, an aggrieved woman may file a complaint of sexual harassment at work within three months of the date of the incident and, in the case of repeated incidents, within three months of the most recent incident.
• Moreover, as per Rule 6(i) of the POSH Rules, it is provided that if an aggrieved woman is physically or mentally incapable or dies, or otherwise is unable to lodge a complaint, her legal heir or her relative or friend, or her co-worker, or an officer of the National Commission for Women or State Women’s Commission, or any person who has knowledge of the incident, with the written consent of the aggrieved woman, may do so.

Conciliation

• As per Section 10 of the POSH Act, an Internal Committee/Local Committee can attempt to resolve a complaint between the parties, at the request of the aggrieved woman, through conciliation by reaching an amicable settlement.
• Along with these provisions there are other provisions for providing punishment to the offender as well as those who try to cover up the offence.
• It also provides for anonymity to the victim by prohibiting the dissemination of the contents of the complaint, as well as the names and addresses of the complainant, respondent, witnesses, conciliation and inquiry proceedings, recommendations of the above-mentioned committees, and the consequences of the same to the public, press, and media in any manner whatsoever.
• However, the results of an investigation into the allegations will be made public ithout disclosing any of the victim’s names, addresses, identities, or any other particulars that could identify them. This is done to prevent the future occurrences of such events.

Drawbacks of POSH Act

Gender neutrality:

• POSH Act excludes the possibility of redress for complaints raised by men or LGBTQ+ members by limiting the scope to women only.

Protection against retaliation:

• The employer may take action during the pendency of the inquiry and the victim could be transferred, granted leave for up to three months, or receive any other relief suggested by the court.
• This fails to promote a healthy work environment.

Limited impact on the informal sector:

• Majority of the provisions of the act are applicable to only the formal sector. Considering the fact that over 97% of Indian workforce are employed by the informal sector, this limits the effectiveness of the act by quite a large margin.