POSH Law – An overview
The incidences of sexual harassment of women have been there since ages and women only knew to suffer in silence. With changing times, women however have now realized the need to voice for justice, to voice against discrimination and demand equality. It is because of those women who had to sacrifice their dignity and who demanded justice, we are now safeguarded by the Law. It took us two brutal cases to form our legislation on sexual harassment of women at workplace. Bhanwari Devi incidence in 1992 stirred the formation of Vishakha Guidelines in 1997. While Law was still in its preliminary stage, the Nirbhaya incident took place in 2012. It shook the nation deeply and led to outraged reactions from all over which accelerated the long overdue process of legislation. India’s first legislation for protection of women from sexual harassment at workplace came into force in December 2013 in the form of “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”. Famously known as PoSH, the law recognizes sexual harassment as a form of gender discrimination and prohibits it, thereby striving to protect the dignity of women at workplace.
The essence of the Law lies in its importance to confidentiality, provision of redressal mechanism and an emphasis on prevention rather than punitive action. The compliance is mandatory in nature, providing serious consequences for employers on non-compliance. The practical difficulties faced while lodging a complaint at police station are avoided by providing an internal redressal mechanism which is easy to access and time bound.
The Act defines sexual harassment and workplace elaborately. The differentiating characteristic is that it focuses on the impact of the action rather than the intent and that it considers sexual harassment as a subjective experience, keeping in mind the “normal behaviour” that may be offensive to a certain gender. To quote a relevant case, in Punita Sodhi Vs. Union of India (W.P. (C) 367/2009 & CMs 828, 11426/2009), the court emphasized that in evaluating the severity and pervasiveness of sexual harassment, focus should be on the perspective of victim. It said that, “The Courts should consider the victim’s perspective and not stereotyped notions of acceptable behaviour.”
Sexual Harassment as defined under the law is – that it includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely: —
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
It covers and addresses the two common forms of inappropriate behaviour/sexually harassing behaviour such as ‘Quid Pro Quo’ and ‘Hostile work environment’.
The Law, provides provisions for Prevention, Prohibition and Redressal of sexual harassment at workplace. Further, while focusing on preventive measures, the law suggests employers to conduct awareness training sessions for its employees and ensure safe workplaces by framing zero tolerance policies towards sexual harassment. It is this peculiar characteristic which gives a holistic view to the issue, more than just focusing on the redressal. Having said so, the redressal mechanism is also discussed elaboratively and have laid down certain provisions for effective implementation. One of such provision is constitution of Internal Complaints Committee where any aggrieved woman can report a complaint and the same will be addressed as per the procedure of the Act.
The Internal Complaints Committee shall comprise of at least 4 members where half of them should be women and that the Presiding Officer should be a woman. An external member, a lawyer or a person from amongst NGO’s, associations committed to the cause of Women or a person familiar to the sexual harassment issues, should be a part of such Internal Committee. This provision is to ensure that the inquiry proceedings be carried out in accordance with principles of natural justice and on unbiased and reasonable grounds. Such committee shall have the same powers as vested in Civil Court.
The Law has a benevolent approach when it offers an option of interim relief to the victim which can be in the form of long leave, transfer or change in workplace as such. At the same time, it also has a stringent and cautious approach by giving the option of conciliation only at the discretion of victim so that the same is not exploited by the employer or respondent and that the spirit of the legislation is preserved. Talking about the inquiry proceedings, the Act lays down the rules and procedures for such inquiry and also guides in report submission. It has a mechanism to check the compliance of this provision by way of submission of annual report by the employer.
The Anti Sexual Harassment law is supported by these 4 pillars :
- Confidentiality – Maintaining complete confidentiality about the complaint, complainant, respondent and the inquiry conducted. Any breach shall invite disciplinary action.
- No presumption of guilt. – The Complainant has to prove by evidence the allegations of sexual harassment and any false allegations made out of malice will also be dealt with in accrodance with law
- Principles of Natural Justice – The inquiry to be conducted in accordance wth principles of natural justice.
- Non retaliation – No retaliation against the Complainant , witness or anyone else who is part of the inquiry . Any retaliation shall invite disciplinary action.
Currently, the application of this Law is limited to all workplaces, but with its evolution, it will have its impact in wellbeing of the society as a whole.