10 years of POSH Act, 2013

Context: POSH Act was notified and implemented on 9th Dec 2013. The Act has been completed 10 years since then.

What is the POSH Act?

Objective: To protect against sexual harassment of women in their workplace, public or private, to ensure gender equality, right to dignity, and a favourable working environment.
It gave legislative backing to the Vishaka Guidelines.

Vishaka Guidelines

The Vishaka Guidelines were a set of procedural guidelines for use in India in cases of sexual harassment.
They were promulgated by the Supreme Court in 1997 and were superseded in 2013 by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.

Incident: In 1992, Bhanwari Devi, a social worker with the Women’s Development Project of the Rajasthan government was gang-raped by five men after she tried to prevent the marriage of a one-year-old girl.
SC Action: During the trials, SC noted the absence of any law against “sexual harassment at workplaces”, and laid down a set of guidelines in 1997, known as the Vishakha Guidelines. These guidelines were to be “strictly observed in all workplaces” and were binding and enforceable in law.
Important Provisions: The Court drew its strength from several provisions of the Constitution including Article 15 (against discrimination on grounds only of religion, race, caste, sex, and place of birth), and International Conventions like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993.
- CEDAW defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.

Definition: The Act defines Sexual Harassment at work, and creates an institutional mechanism for the resolution of the complaint.

What is Sexual Harassment?

The PoSH Act defines sexual harassment to include unwelcome acts such as physical contact and sexual advances, a demand or request for sexual favours, making sexually colored remarks, showing pornography, and any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
It also lists down five circumstances that would constitute sexual harassment if they are connected to the above-mentioned acts:
- 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.
- Humiliating treatment likely to affect health or safety.

Coverage: The Act covers, both the public and private sector, organized and unorganized sector, irrespective of her age or employment status.
Employer: The definition of employer and workplace is also wide to cover both traditional office setups and contemporary setups like gig working are included in the Act.
ICC: Each employer is required to set up an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees.
Enquiry: The committee is required to complete the enquiry against any complaints received within 90 days. The enquiry process should be confidential.
Awareness: The Act also requires employers to develop policies against sexual misconduct and spread awareness about the ICC.
Penalties: Penalties have been prescribed in case of non-compliance, with a fine of up to Rs 50,000. The Act also has penal provisions to ensure safeguards against false or malicious complaints.
Tackling Fake Complaints: Section 14 of the Act deals with punishment for false or malicious complaints and false evidence.

Most of the organizations at the ground level have not constituted the mandatory ICC, despite a legal requirement that any workplace with more than 10 employees needs to implement it.
Lack of Expertise of ICC members in handling sensitive and quasi-judicial investigations of this nature.
Another challenge lies in providing redress to women workers in the unorganized sector. For Instance, more than 80% of India’s women workers are employed in the informal sector.
The Act mandates strict confidentiality, however, often the details get leaked in the organization or the Media.

Must Read: Women Safety in India: Unveiling the Alarming Reality

In Oct 2023, SC issued a issued a number of directions to ensure effective implementation of the provisions of POSH Act 2013
- Appointment of ‘District Officer’: SC has underlined that it is mandatory for the states and union territories to appoint a ‘District Officer’ as per section 5 of the Act.
- Time-Bound Assessment for the Formation of Local Committees and Internal Committees: The Union of India, State Governments, and Union Territories must conduct a time-bound assessment to verify if all relevant ministries, departments, government organizations, authorities, public sector undertakings, institutions, bodies, etc., have constituted Local Committees (“LCs”)/ Internal Committees (“ICs”), as the case may be.
- Capacity Building Initiatives: Regular orientation programs, workshops, seminars, and awareness campaigns should be conducted by authorities, management, and employers to enhance the skills of LCs/ ICs members

Recommended setting up an employment tribunal instead of an Internal Complaints Committee (ICC).
To ensure speedy disposal, the committee may choose its own procedure to deal with each complaint.
Domestic Workers should be included in the purview of the Act.
The panel has recommended removing the provision penalizing women for false complaints, as it can potentially nullify the objective of the law.

Source: Indian Express