In India, the law governing sexual harassment at the workplace is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, often referred to as the POSH Act. This Act was a direct result of the landmark Vishaka guidelines laid down by the Supreme Court of India in 1997.
In India, the law governing sexual harassment at the workplace is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, often referred to as the POSH Act. This Act was a direct result of the landmark Vishaka guidelines laid down by the Supreme Court of India in 1997.
1. Objective and Scope
Objective: The primary goal of the POSH Act is to provide a safe, secure, and harassment-free working environment for all women. It aims to prevent and prohibit sexual harassment and to provide an effective mechanism for the redressal of complaints.
Broad Definition of "Workplace": The Act's definition of "workplace" is very broad. It is not limited to traditional office spaces. It includes:
Any government or private sector organization, school, college, hospital, or sports institute.
Any place visited by an employee arising out of or during the course of employment, including transportation provided by the employer.
Even a dwelling place or a house, in the case of a domestic worker.
Who is Covered? The Act applies to all women, regardless of their employment status. This includes employees, part-time workers, temporary staff, interns, contractual workers, apprentices, and even a woman visiting a workplace.
2. Definition of Sexual Harassment
The POSH Act defines sexual harassment comprehensively, including unwelcome acts or behaviors, whether directly or by implication. This includes:
Physical contact and advances: This includes unwanted touching, groping, or any physical contact of a sexual nature.
A demand or request for sexual favors.
Making sexually colored remarks: This can be in the form of jokes, comments, or innuendos.
Showing pornography.
Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature: This is a catch-all provision that includes leering, stalking, sexually suggestive gestures, or even unwanted emails or text messages with sexual content.
The Act also clarifies that certain circumstances, if they occur in connection with any of the above acts, may also constitute sexual harassment:
An implied or explicit promise of preferential treatment in employment.
2 An implied or explicit threat of detrimental treatment in employment.
3 An implied or explicit threat about the present or future employment status.
4 Interfer
5 ence with a woman's work or creating an intimidating, offensive, or hostile work environment for her.Humiliating treatment likely to affect her health or safety.
3. Redressal Mechanism: The Internal Committee (IC)
This is the most critical provision of the POSH Act. Every employer with 10 or more employees is mandated to constitute an Internal Committee (IC).
Composition of the IC:
A Presiding Officer, who must be a senior woman employee.
At least two members from among the employees, preferably committed to the cause of women or having legal knowledge.
An external member from an NGO or an association committed to the cause of women or a person familiar with sexual harassment issues. This is to ensure impartiality.
Role of the IC:
To receive and inquire into complaints of sexual harassment.
To conduct an inquiry in a fair and confidential manner.
To recommend appropriate action to the employer based on the findings of the inquiry.
To submit an annual report to the District Officer.
Local Committee (LC): For organizations with less than 10 employees, or if the complaint is against the employer himself, a Local Committee (LC) must be constituted by the District Officer to address the complaints.
4. Complaint and Inquiry Procedure
Filing a Complaint: An aggrieved woman must file a written complaint with the IC or LC within three months of the incident. This period can be extended by the IC if there is a valid reason.
Conciliation: The Act allows for a settlement through conciliation at the request of the aggrieved woman, but no monetary settlement can be made a basis for conciliation. If conciliation is successful, the IC records the settlement and provides copies to both parties.
Inquiry: If conciliation fails or is not opted for, the IC must conduct a full inquiry.
The inquiry must be completed within 90 days.
The inquiry has powers similar to a civil court.
Legal practitioners are not allowed to represent either party.
The identity of the complainant and the accused must be kept confidential.
Interim Relief: During the inquiry, the IC can recommend interim measures to the employer to protect the complainant, such as:
Transferring the aggrieved woman or the respondent to another workplace.
Granting leave to the aggrieved woman for up to three months.
Restraining the respondent from reporting on the aggrieved woman's work performance.
5. Duties of the Employer
The Act places significant responsibilities on employers to ensure a safe workplace. An employer must:
Constitute an Internal Committee and display its details prominently.
Formulate a written anti-sexual harassment policy and ensure it is widely known to all employees.
Organize regular workshops and awareness programs for all employees to sensitize them to the provisions of the Act.
Provide necessary facilities to the IC to conduct the inquiry.
Take action on the recommendations of the IC within 60 days of receiving the report.
Treat sexual harassment as a misconduct under the service rules and take appropriate action against the perpetrator.
Submit an annual report to the District Officer.
6. Penalties and Consequences
For the Respondent: If the allegations are proven, the IC can recommend disciplinary action against the perpetrator, which can range from a written apology, a warning, withholding of promotion/increments, or even termination of employment.
For the Employer: Failure to constitute an IC or comply with the provisions of the Act can result in a fine of up to ₹50,000. Subsequent violations can lead to double the penalty and even the cancellation of the business license.
For False Complaints: The Act also has provisions to prevent malicious complaints. If the IC finds that the complaint was made with a malicious intent and the allegations are false, it can recommend disciplinary action against the complainant. However, a mere inability to substantiate a complaint is not considered a malicious intent.
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