The PoSH Act: The Indian law on sexual harassment in the workplace

What’s in today’s article?

• Why in News?
• How was the PoSH Act Formed?
• Key Provisions of the PoSH Act
• The Internal Complaints Committee (ICC) and Local Committees (LC)
• Role of ICCs and LCs
• Duties of the Employer
• The Hurdles to the Act’s Implementation
• Reasons behind these Hurdles

 

Why in News?

• The SC found “serious lapses” and “uncertainty” in the implementation of the PoSH Act 2013 and issued directions to the Union, States, and UTs to verify if all government bodies had formed the Internal Complaint Committees (ICCs).
• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act/PoSH Act, which came into force in 2013 applies to all public and private sector organisations throughout India.

 

How was the PoSH Act Formed?

• Bhanwari Devi incident: In 1992 a social worker with the Women’s Development Project of the Rajasthan government was gang-raped after she tried to prevent the marriage of a one-year-old girl.
• SC 1997 guidelines/Vishakha Guidelines: While hearing pleas filed against the crime, the SC noted the absence of any law that guarantee against “sexual harassment at workplaces”.
  • The apex court laid down a set of guidelines to fill the statutory vacuum till a law could be enacted.
• The Court drew its guidelines from:
  • Article 15 (protection against discrimination on grounds only of religion, race, caste, sex, and place of birth) of the Indian constitution.
  • International Conventions and norms such as the General Recommendations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993.
• The PoSH Bill: It was introduced by the Women and Child Development Ministry in 2007. It went through several amendments and came into force on December 9, 2013, after being enacted by the Parliament.

 

 

Key Provisions of the PoSH Act:

• Defines sexual harassment: To include unwelcome acts such as physical, verbal/non-verbal conduct - a demand or request for sexual favours, making sexually coloured remarks, showing pornography, etc.
• Lists down five circumstances that would constitute sexual harassment:
  • Implied or explicit promise of preferential treatment in employment
  • Implied or explicit threat of detrimental treatment in employment
  • Implied or explicit threat about present or future employment status
  • Interference with work or creating an intimidating or offensive or hostile work environment and
  • Humiliating treatment is likely to affect health or safety.
• Defines an employee (not just in accordance with the company law): All women employees, whether employed regularly, temporarily, contractually, on an ad hoc or daily wage basis, as apprentices or interns, can seek redressal to sexual harassment in the workplace.
• Expands the definition of ‘workplace’: Beyond traditional offices to include all kinds of organisations across sectors, even non-traditional workplaces (for example, telecommuting) and places visited by employees for work.

 

The Internal Complaints Committee (ICC) and Local Committees (LC):

• The law requires any employer with more than 10 employees to form an ICC, where a formal sexual harassment complaint can be filed by a woman.
• Composition of ICC: It is required to consist of a minimum of four members (at least half of whom should be women):
  • A Presiding Officer who has to be a woman employed at a senior level at the workplace.
  • Two Members from amongst employees and who have had experience in social work or have legal knowledge.
  • One “External Member” from NGOs to pre-empt any undue pressure from senior levels.
• Besides, the Act mandates every district in the country to create a LC to receive complaints from women working in firms with less than 10 employees and from the informal sector, including domestic workers, etc.

 

Role of ICCs and LCs:

• These two bodies have to conduct inquiries in line with the POSH Act and comply with the “principles of natural justice” stated in the Rules of the Act.
• A woman can file a written complaint either to the internal or local complaints committee within three to six months of the sexual harassment incident.
• There are two ways to resolve the issue by the committee -
  • “Through conciliation” between the complainant and the respondent (which cannot be a financial settlement), or
  • Committees could initiate an inquiry, taking appropriate action based on what it finds.

 

Duties of the Employer:

• An employer has to file an annual audit report with the district officer about the number of sexual harassment complaints filed and actions taken at the end of the year.
• An employer is duty-bound to organise regular workshops and awareness programmes to educate employees about the Act, and conduct orientation and programmes for ICC members.
• If the employer fails to constitute an ICC or does not abide by any other provision, they must pay a fine of up to ₹50,000, which increases for a repeat offence.

 

The Hurdles to the Act’s Implementation:

• The law is largely inaccessible to women workers in the informal sector: As more than 80% of India’s women workers are employed in the informal sector.
• Huge underreporting: Due to the power dynamics of organisations, fear of professional repercussions (loss of employment), concrete evidence is often lacking, etc.
• Lacunae in the constitution of ICCs: 16 out of the 30 national sports federations in the country had not constituted an ICC to date.
• Improper composition of ICCs: ICCs either had an inadequate number of members or lacked a mandatory external member.
• Lack of clarity in the law: About how to conduct such inquiries, lack of awareness in women employees about who to approach in case of facing harassment, etc.

 

Reasons behind these Hurdles:

• The Act does not satisfactorily address accountability, not specifying who is in charge of ensuring that workplaces comply with the Act, and who can be held responsible if its provisions are not followed.
• The government maintains no centralised data regarding cases of harassment of women at workplaces.

 

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Q1) What is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)?

CEDAW is an international legal instrument (adopted in 1979) that requires countries to eliminate discrimination against women and girls in all areas and promotes women's and girls' equal rights.

 

Q2) Which constitutional provision enables state to make special provisions with respect to women?

While Article 15 of the Indian Constitution prohibits discrimination on the grounds of sex, special provisions for women and children are permissible. State institutions created exclusively for women, or special places reserved for women in public transport or places of entertainment do not violate Article 15.

 

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Source: The Indian law on sexual harassment in the workplace