INTRODUCTION
The Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act,
2013 (POSH Act) governs this in India. The Act safeguards women against sexual harassment
at work. Additionally, it offers provisions for stopping and addressing sexual harassment
claims. The Internal Complaints Committee as well as Local Committees are formed for
redressal of such cases, one can even appeal if not satisfied which the decision of committees
This article gives a thorough overview of this Act.
MEANING:
Sexual harassment affects every woman, regardless of whether she works in an industry with
male bosses, coworkers, or owners; whether she works in the service industry with clients,
customers, and senior employees; whether she attends college with male professors,
students, or colleagues; or whether she maintains a home with male partners. It is defined as
follows:
“Sexual harassment includes such unwelcome sexually determined behaviour (whether
directly or by implication) as
a) physical contact and advances;
b) a demand or request for sexual favors;
c) sexually-coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual.”
The Supreme Court once more reinforced the term of sexual harassment in Apparel Export v.
A.K. Chopra (1999), holding that it includes any conduct or gesture intended to offend the
modesty of a female employee, either directly or indirectly.
Therefore, the Supreme Court of India established some principles preserving the
Constitutional spirit and in accordance with the UN Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) in its landmark decision Vishaka & Ors. v. the State
of Rajasthan (1997).
COMMITTEE UNDER POSH ACT:
The POSH Act, 2013, contains a provision that allows for the creation of committees to support
aggrieved women or sexual harassment victims. An Internal Complaints Committee (ICC) must
be established by every organization’s employer in accordance with Section 4 of the
aforementioned Act. The goal of this group would be to resolve sexual harassment allegations
and support the victims in maintaining their dignity at work. Every institution or organisation
is required to have an ICC, and the employer may be held liable for penalties if the ICC is not
in place.
According to the POSH Act, the employer must designate the ICC members’ terms of office,
which cannot exceed three years from the date of their nomination.
• COMPOSITION OF COMMITTEE:
One Chairperson or Presiding Officer – A woman of the same organization working at
the senior level is to be appointed as the Chairperson or PO.
The seniority requirements to be qualified to preside over the ICC were discussed by
the Allahabad High Court in Shobha Goswami v. the State of Uttar Pradesh and Others
(2015). The respondent in this case claimed that the presiding officer was his
subordinate and did not meet the requirements to become the chairperson of the ICC.
The High Court, however, rejected the claim and concluded that the Chairperson’s
seniority was legitimate in that particular situation and came to the conclusion that
the Chairperson should be senior to the employee against whom the sexual
harassment complaint has been made.
Two members amongst the employees – They can be preferred by choice based on
their social work or legal knowledge or the ones who are committed to the cause of
women.
One external member like, Doctors, attorneys, or non-profit organizations that
support women’s rights could be external members. The Delhi High Court reviewed
the requirements for selecting such an external member in Ruchika Singh Chhabra v.
Air France India & Another (2018). The committee’s mandate, according to the court,
is to aid the complainant in escaping harassment and create a productive inquiry
process to deal with any problem that an offended female employee may encounter.
Therefore, it is crucial to select a member from outside the committee who has the
skills necessary to advance the objectives of the committee.
POWERS AND RESPONSIBILITIES OF INTERNAL COMPLAINTS COMMISSION
Powers of ICC are as follows:
(a) Empowered to initiate an investigation into an accusation of sexual harassment.
(b) It has the authority to gather proof and call witnesses.
(c) Additionally, it can offer advice on the steps to be taken if a similar scenario arises
again in the future.
The following are some of the duties that the ICC must perform to further the POSH Act’s
goals:
(a) Obtain the sexual harassment allegations.
(b) Launch the investigation and submit the results of the investigation.
(c) Ask the employer to take the necessary steps.
(d) Submit a yearly report in the format required.
LOCAL COMPLAINTS COMMITTEE:
Every organisation with ten or more employees was required under the POSH Act to constitute
ICC. What about businesses with fewer than ten employees, though? Or the unorganized
sectors, where a complaint cannot be made since there is a formal system in place? Women
who work in these areas of employment should likewise be shielded from sexual harassment.
Therefore, the Local Complaints Committee (LCC), which is established pursuant to Section 6
of the POSH Act, is provided for by the aforementioned Act. This clause mandates that the
District Officer form the LCC on behalf of the entire district. Every block, taluka, and tehsil in
the rural or tribal area, as well as every ward or municipality in the urban area, must have
one nodal officer designated by the district officer. As soon as complaints are received, the
nodal officer must transmit them to the relevant LCC within seven days. The following
people would report sexual harassment to the LCC:
1. Employees of organizations having less than ten employees;
2. Women working in the unorganized sector like housekeeping staff; and,
3. Employees from organizations with more than ten employees but if the complaint is
against the employer himself.
RECENT SUPREME COURT DIRECTIONS:
Even ten years after the Sexual Harassment at Workplace Act, 2013, or “POSH ACT,” the
Supreme Court has raised concern over what it calls the “serious lapses” in the law’s
execution.
In this regard, the court noted a recent revelation in a national newspaper stating that 16 of
the country’s 30 national sports federations have not yet established the Internal
Complaints Committee (ICC). Where the ICC has been found to exist, they either lack the
necessary external members or do not have the required number of members.
The Supreme Court gave a number of significant directives to help working women across
India realize the promise of the Posh Act. These consist of:
1. ICCs/LCs/ICs across Ministries, Departments, Government organizations, authorities,
Public Sector Undertakings, institutions, bodies, and all organizations that are
workplaces under the Posh Act shall be subject to a “timebound exercise” by the
Central and State governments to confirm their composition.
2. By posting the information on the website of the appropriate organisation, you can
make sure that people can easily find out about ICCs, LCs, and ICs, their contact
information, how to file complaints, and the applicable rules and regulations.
3. Keeping checks to make sure the Act is being followed in professional organizations,
educational institutions, hospitals, and nursing homes.
4. Employers, managers, and authorities are required to implement “immediate and
effective steps” to familiarize ICC/LC/IC members with their responsibilities and the
inquiry procedure.
5. Employers, management, and authorities are required to regularly host orientation
programmers, workshops, seminars, and awareness campaigns to inform ICC/LC/IC
members, female employees, and women’s organizations about the Act’s provisions.
THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES, 1946:
Section 14(3)(l) of The Industrial Employment (Standing Orders) Central Rules, 1946, deals
with the misconduct of sexual harassment at work place against women which is as follows:
Sexual harassment which includes such un-welcome sexual determined behaviour (whether
directly or by implication) as-
(i) physical contact and advances; or
(ii) demand or request for sexual favors; or
(iii) sexually coloured remarks; or
(iv) showing pornography; or ‘
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
A complaint Committee is constituted which is deemed to be the inquiring authority
appointed by the employer for these rules. Complain for sexual harassment is under clause
(3) of sub-section (l). 3(A) The Complain Committee shall hold the inquiry, unless separate
procedure has been prescribed for the Complaints Committee for holding such inquiry into
the complaints of sexual harassment, as far as practicable, in accordance with the procedure
laid down in these rules.
According to 3(B) The Complaints Committee shall consist of-
(a) A Chairperson who shall be a woman;
(b) Two members representing Non-Government Organization (NGO) or any other body
which is familiar with the issue of sexual harassment or nominees of the National or
State Human Rights Commission or the National or state Commission for Women
familiar with the issue of sexual harassment,
To be nominated by employer. Provided that one of the two members of the Complaints
Committee shall be a woman.
(3C) The Complaints Committee shall make and submit every year an annual report, to the
appropriate Government, of the complaints and action taken.
(3D) The employers or their agents shall report, to the appropriate Government, on the
compliance of the guidelines issued by the Central Government in pursuance of the directions
of the Supreme Court in (Vishaka v. State of Rajasthan and Others) including on the reports of
the Complaints Committee.
The provision laid down under The Industrial Employment (Standing Orders) Central Rules,
1946 for prevention of sexual harassment at work place is almost similar to POSH Act, 2013,
the only difference in composition of committee is in Posh Act, 2013 there are two members
from employees and one external member from NGO but in case of The Industrial
Employment (Standing Orders) Central Rules, 1946, there are two members from NGO and no
member from among employees.
SECTION 18 OF POSH ACT, 2013
Any person who is aggrieved by the recommendations made under Section 13 Subsection (2),
Section 13 Subsection (3), Section 14 Subsection (l), Section 14 Subsection (2), or Section 17
or by the non-implementation of such recommendations may prefer an appeal to the court
or tribunal in accordance with the provisions of the service rules applicable to the said person,
or, if no such service rules exist, then, without prejudice to provisions contained in Sections
14 and 17, Section 14, Subsection (l), Section 14, Subsection (2), and within ninety days of the
recommendations, the appeal under subsection (1) must be filed.
CASE LAWS:
• The case P v. A & Ors. (POSH Confidentiality Guidelines-Suit no. 142 of 2021) highlights
the confidentiality Provision under the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013. The confidentiality guidelines are
specified under Section 16 of the POSH Act. In this case the Delhi High Court issued
some guidelines, which are: (a) Any identity proof document must not be retained by
the authority, (b) to ensure the confidentiality of personal details, (c) all hearings of
POSH Act must be conducted in chambers or under camera surveillance, (d) parties
are forbidden to reveal the contents of judgement (e) Oath of non-disclosure and
confidentiality by the witness.
The critical analysis of these guidelines is it lacks transparency, applicability of the
guidelines is not clear, freedom of media is restricted, no clarity for the follow-up of
guidelines by IC, the rules forbid disclosing the identities of either the harasser or the
victim, and they enforce anonymity.
The high court’s ruling was contested in the appeal, which referred to the guidelines
as a “death blow” to the right to free speech and expression.
“The high court has failed to consider that any general prohibition or gag order in the
form of an injunction prohibiting the broadcast of true and accurate facts will infringe
upon the people’s right to information, which is a key component of Article 19(1)(a) of
the Constitution, and violate it. According to the petition, which was created by the
victim’s advocate Abha Singh, “this will have a devastating and detrimental effect on
the society at large.”
• The case Shanta Kumar v. Council of Scientific and Industrial Research (CDIR) and
Ors, Delhi High Court ((2018) 156 FLR 719), according to the Court, sexual
harassment occurs whenever a physical touch or approach is made while engaging in
sexually suggestive behaviour. Even if it were unwanted, a casual touch would not be
considered sexual harassment. Even if the incident in question had been demeaning,
it would not have met the requirements for sexual harassment in this situation.
• Nisha Priya Bhatia v. Union of India, 2020 SCC Online SC 394, decided on
24.04.2020. The Court took note of the fact that the appellant in this case had to deal
with extremely insensitive and degrading conditions as a result of how her complaint
of sexual harassment was handled incorrectly. No of how the investigation into the
stated complaint turns out, it was obvious that the petitioner’s fundamental rights
had been violated. “The approach of law as regards the cases of sexual harassment at
workplace is not confined to cases of actual commission of acts of harassment, but
also covers situations wherein the woman employee is subjected to prejudice,
hostility, discriminatory attitude and humiliation in day-to-day functioning at the
workplace. Taking any other view would defeat the purpose of the law.”
CONCLUSION:
Sexual harassment has persisted for ages across all societal divides, including those of race,
gender, sex, and colour, in both industrialized and developing nations. The workplace can be
a place where someone experiences sexual harassment regardless of their gender. There are
many factors, including gender indiscrimination, inadequate distribution, favoring nature,
and the harasser’s worldview, that can lead to workplace harassment. In addition to asking
for sexual favors and making unwelcome physical contact, sexual harassment can also refer
to the psychological strain the harasser feels as a result of sexual assault, coercion, or
unwanted sexual attention.
The POSH Act should clarify applicability, accountability, implementation, and monitoring in
order to promote improved reporting. To attain high workplace productivity, it is critical that
employers and authorities adopt, put into practice, and promote best practices for
identifying and responding to workplace harassment. Promoting activities that raise
awareness and support prevention efforts is the greatest method to stop such bad working
situations.
Written By- Smriti Berlia, Senior Executive
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