POSH ACT, 2013 (Protection of women from Sexual Harassment at Work Place)

-By Anushka and Rayman Dhaliwal

INTRODUCTION

One important piece of legislation in India that protects women from sexual harassment at work is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, or POSH Act. The Act, which was inspired by the Supreme Court's 1997 Vishaka Guidelines, defines sexual harassment broadly to include unwanted sexually suggestive physical, verbal, or nonverbal behaviour. Its main component is the need that companies with 10 or more workers set up an Internal Complaints Committee (ICC), which is in charge of receiving, looking into, and addressing sexual harassment complaints. The ICC's composition, role, and the detailed complaint and inquiry process are meticulously outlined in the Act, emphasizing fairness, timeliness, and confidentiality. Beyond the ICC, the POSH Act places significant obligations on employers, including the formulation of a sexual harassment policy, conducting awareness programs, ensuring a safe working environment, and acting upon the ICC's recommendations. Non-compliance can result in substantial penalties, underscoring the seriousness with which the legislation views the issue. Ultimately, the POSH Act aims to prevent sexual harassment, explicitly prohibit such conduct, and provide a robust mechanism for redressal, thereby fostering a more equitable and dignified work environment for women across various sectors in India. While challenges in its full and effective implementation persist, the Act remains a crucial legal instrument in the ongoing pursuit of gender equality and workplace safety. An Act to protect women from sexual harassment in the workplace, to prevent and address sexual harassment complaints, and to address issues related to or incidental to these goals. WHEREAS sexual harassment causes a woman's fundamental rights to equality under Articles 14 and 15 of the Indian Constitution, her right to life and dignity under Article 21 of the Constitution, and her right to engage in any profession, trade, or business, including the right to a safe environment free from sexual harassment. The Act's wide applicability, which covers a variety of employment types and both organized and unorganized sectors, demonstrates its dedication to safeguarding all female employees, irrespective of their employment status or the type of workplace they work in.  The purpose of the POSH Act is to make it easier for women to report instances of sexual harassment by requiring internal complaint redressal procedures. This could help remove some of the obstacles that come with pursuing legal action through conventional legal channels.  The POSH Act is a crucial piece of legislation that has greatly influenced the conversation on workplace safety and gender justice in India, even if the path to genuinely harassment-free workplaces is still ongoing.

BACKGROUND

In a significant ruling in the 1997 case of Vishakha and others v. State of Rajasthan, the Supreme Court issued "Vishakha guidelines." The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 was based on these rules.

Along with citing pertinent international conventions and standards, 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 SC also drew strength from a number of constitutional provisions, such as Article 15, which prohibits discrimination based solely on religion, race, caste, sex, and place of birth. Prevention and Prohibition: Employers are required by law to prevent and forbid sexual harassment in the workplace under the Act.

Employers must set up an Internal Complaints Committee (ICC) in every business with ten or more workers in order to accept and handle sexual harassment complaints. The Complaints Committees are able to collect evidence with the same authority as civil courts. Employers' obligations include implementing awareness campaigns, creating a secure workplace, and posting information regarding the POSH Act. Mechanism for Complaints: The Act establishes a process for registering grievances, carrying out investigations, and giving all parties concerned a fair chance. Violations of the Act may lead to fines and the revocation of business licenses, among other sanctions.

Justice Verma Committee's recommendations regarding workplace sexual harassment

Following the December 2012 Nirbhaya incident, the Justice JS Verma committee was established and presented its suggestions for bolstering the legislation to prevent crimes against women.

The panel's recommendations were:

In the Sexual Harassment at Workplace Act, the Committee had suggested that an   employment tribunal be established in place of an internal complaints committee (ICC).

In order to achieve quicker case resolution, the committee suggested that the tribunal handle each complaint according to its own procedure rather than operating as a civil court.

Resolving concerns internally may have the opposite effect of what is intended, as it may deter women from complaining: -

• Domestic workers ought to fall under the Act's jurisdiction.
• The Sexual Harassment Act, as defined by the Committee, is inadequate and does not adhere to the spirit of the Vishakha principles, which were established by the Supreme Court in 1997 to prevent sexual harassment in the workplace.
• The Committee expanded the concept of sexual harassment by stating that any unwanted behaviour should be viewed from the complainant's subjective perspective.

 According to the panel, an employer ought to be held accountable

• If he or she facilitated sexual harassment permitted an environment where sexual misconduct becomes widespread and systematic
• Where the employer fails to disclose the company’s policy on sexual harassment and ways in which workers can file a complaint
• When the employer fails to forward a complaint to the tribunal The company would also be liable to pay compensation to the complainant.

The panel argued that punishing women for making false accusations could defeat the purpose of the law and panel further stated that a complainant should not be transferred without her consent and that the three-month window for filing a complaint should be eliminated.

Provisions Of POSH ACT,2013

A number of measures in India's Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) are designed to stop sexual harassment in the workplace. Section 2(m) of the Act explains that the term “respondent” falls within its fold “a person”, thereby including persons of all genders, The Act's definition of sexual harassment, found in Section 2(n), makes it clear how to recognize and stop unwanted actions such as physical contact, requests for sexual favours, sexually suggestive comments, displaying pornography, and any verbal or nonverbal conduct of a sexual character. Section 19 requires employers to give resources to the Internal Complaints Committee (ICC), hold frequent awareness courses, enforce the criminal penalties for harassment, and maintain a safe workplace. In order to serve as a deterrent and redressal mechanism, Section 4 requires workplaces with ten or more employees to establish an ICC. This ICC must be composed of a senior female presiding officer, two employee members, and one external member, with at least half of the members being women. Section 6 mandates the establishment of a Local Complaints Committee (LCC) at the district level for complaints against employers or smaller enterprises. Under Rule 3 of the POSH Rules, employers are also required to create an anti-sexual harassment policy that details corrective measures.  Any resentful woman may file a complaint of sexual harassment at work with the Internal Committee or the Local Committee within three months of the incident, according to Section 9 of the POSH Act. In order to handle complaints in a timely and private manner, the Act requires businesses with more than 10 employees to set up an Internal Complaints Committee (ICC). Section 12 provides that, while an investigation is ongoing, the Internal Committee (IC) or Local Committee (LC) may advise the employer to: Move the respondent or the aggrieved woman to a different place of employment. Give the aggrieved woman up to three months of absence (on top of her usual benefits). Provide any additional relief that may be necessary, such as a modification in the reporting structure, the ability to work from home, or contact restrictions. Sexual harassment is expressly forbidden by Section 3, while Section 26 encourages preventive action by imposing fines of up to ₹50,000 for noncompliance, If an employer who has already been found guilty of a crime covered by this Act is found guilty of the same crime again, he faces double the penalty that would have been applied to a first conviction, provided that the penalty is the maximum allowed for the same offense. With the caveat that the court must give careful consideration to any heavier punishment that may be mandated by any other currently enacted law or the offense for which the accused is being prosecuted while determining the appropriate sentence. The government or local authority that is necessary to conduct his business or activity may cancel his license, withdraw it, not renew it, approve it, or cancel his registration, as the case may be. A safe reporting environment is promoted by Sections 16 and 15, which guarantee anonymity and protection from reprisal. Furthermore, in order to facilitate government oversight, Sections 21 and 22 mandate that ICCs and LCCs provide yearly reports. Although issues like implementation gaps and underreporting still exist, these provisions—which have their roots in the Vishaka Guidelines and CEDAW—promote systemic improvements. Although appeals for a gender-neutral Act are highlighted in discussions on X, the current framework prioritizes the protection of women.

Key components

A procedure for filing and looking into accusations of sexual harassment is also outlined in the statute. Either the victim or someone acting on her behalf may make a complaint. The complaint must be filed with the Internal Complaints Committee or the Local Complaints Committee, depending on the size of workplace.

• Internal Complaints Committee

The need that workplaces set up an Internal Complaints Committee (ICC) is a crucial part of the Act. An ICC must be established by any company with ten or more workers in order to accept and handle sexual harassment complaints. A senior-level female employee serving as the ICC's presiding officer, two other staff members (ideally with legal or social work experience), and one outsider from an NGO or with knowledge of sexual harassment matters must make up the ICC. For the ICC to handle complaints with gender sensitivity, at least half of its members must be female. In order to guarantee an equitable and easily accessible redressal process in the workplace, the ICC is essential.

• Local Complaints Committee

The Act requires the establishment of a Local Complaints Committee (LCC) at the district level for smaller companies with fewer than ten employees or in situations where the employer is the target of the complaint. District Officers chosen by the state government make up these committees. With the help of the LCC's alternative redressal process, women in smaller organizations or those harassed by higher-ups can seek justice without worrying about reprisals.

• Complaint mechanism

The POSH Act's complaint procedure is set up to be both accessible and time-bound. Within three months of the occurrence, a complainant must submit a written complaint; however, if there are good reasons for the delay, this deadline may be extended by an additional three months. If the complainant requests it, the ICC or LCC may try to mediate a settlement between the parties before starting a formal investigation; however, financial settlements cannot serve as the foundation for such agreements. The committee conducts an inquiry, which must be finished within 90 days and adhere to natural justice principles to ensure fairness, if conciliation is unsuccessful or is not pursued.

• Inquiry Process

The investigation procedure is intended to be exhaustive and objective. In order to ensure that all parties are heard, the ICC or LCC investigates the complaint by giving the complainant and respondent the opportunity to make their case. Throughout, confidentiality is upheld to safeguard the participants' privacy. The completed inquiry report, which includes specific conclusions and suggestions for additional action, must be turned in within ten days. The effective and transparent handling of complaints is guaranteed by this methodical procedure.

• Action and Penalties

In the event that sexual harassment is proven, the Act empowers the ICC or LCC to recommend actions and sanctions to the employer. Examples of these include a formal apology, warning, suspension, termination, or refusal of raises or promotions. Additionally, the committee may recommend compensation for the complainant based on factors including monetary loss, career challenges, or psychological distress. The Act also covers malicious or false complaints and allows action against the complainant if it is proven that the complaint is false, even though a complaint is not necessarily fraudulent since there is insufficient evidence. This comprehensive approach deters abuse while safeguarding rightful complainants. There are severe penalties for breaking the Act. For the first offense, employers who do not create an ICC or follow other rules risk a fine of up to ₹50,000. Higher fines or even the organization's business license being revoked may follow repeated infractions. This clause demonstrates how seriously the government takes upholding compliance and guaranteeing women's safety at work.

• Employer Responsibilities

A key component of the POSH Act is employer duties, which place an emphasis on proactive compliance and prevention. Employers are required to establish a safe workplace, regularly provide sexual harassment awareness programs and training, and clearly display information about the Act, ICC members, and sanctions. They must also help with investigations, shield witnesses and complainants from reprisals, and provide yearly reports on complaints and responses. Employers are held responsible for creating a harassment-free workplace thanks to these duties.

• Confidentiality

The Act firmly enforces confidentiality in order to safeguard the privacy and dignity of all parties. Except in cases where it is required to carry out recommendations or pursue legal action, information about the complaint, the inquiry process, and the identity of the complainant, respondent, and witnesses must all be kept private. The Act's dedication to handling situations with tact is reinforced by the fact that violating confidentiality is a crime.

• Government Oversight

Lastly, the Act delegates government supervision duties to state governments, who use District Officers to keep an eye on execution. These officers make sure that workplaces adhere to the Act's standards and that LCCs are operational. Annual reports that employers must provide assist monitor the frequency of complaints and the efficiency of redressal procedures. This supervision guarantees that the Act is a system that actively protects women in the workplace, not merely a set of laws.

JUDGEMENTS

Vishaka vs State of Rajasthan (1997)

Vishaka Judgment is a historical case that deals with the offence of Sexual Harassment of women at her workplace.  This supreme court judgment defined the ambit of Sexual Harassment as including an uninvited or unwelcome sexual favour or sexual gestures from one gender towards the other gender in the year 1992, Bhanwari Devi, employed with the rural development program of the Government of Rajasthan, was viciously gang-raped because of her efforts to stop the then prevailing practise of child marriage in support of the government’s campaign against child marriage. With an intent to seek revenge from Bhanwari, five men attacked Bhanwari’s husband and brutally raped her. However, due to the great political/social influence of the family of the accused, the rape survivor did not get justice from the courts and the rapists were allowed to go free.

Supporting the cause of working women in India, lawyers and women’s rights activists filed public interest litigation (PIL) in the Supreme Court under the banner of Vishaka.

“Vishaka Guidelines” were stipulated by the Supreme Court of India, in Vishaka and others v State of Rajasthan case in 1997, regarding sexual harassment at the workplace. The court stated that these guidelines were to be implemented until legislation is passed to deal with the issue. the Ministry of Women and Child Development, after several years, passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Simultaneously, the Ministry also formulated the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (POSH Rules) effective from the same date to strengthen and streamline the provisions under the POSH Act.

Dr. Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College & Or’s

Dr. Malabika Bhattacharjee accused another female co-worker of sexual harassment.  The complaint was approved by the Internal Complaints Committee (ICC).  The respondent contested the jurisdiction of the ICC, claiming that only complaints involving male offenders are covered by the POSH Act. The respondent's claim was dismissed by the Calcutta High Court, which held that allegations of sexual harassment between people of the same gender are not barred by the POSH Act.  The Act's Section 2(m), which defines "respondent" as "a person," so encompassing people of both genders, was cited by the Court.  The Court underlined that sexual harassment concerns a person's dignity, which is related to their sexual orientation and gender, and that it is possible for someone of the same gender to infringe upon the dignity of another. This decision was significant because it recognized that the POSH Act's protections apply to all individuals, regardless of gender, resulting in a safer and more inclusive workplace.  It emphasized how crucial it is to interpret the law in a way that protects the rights and dignity of every worker, regardless of gender.

Independent Thought v. Union of India and Anr.

In 2017, the Supreme Court of India rendered a decision in the case of Independent Thought v. Union of India and Anr. The case started when a non-profit group named Independent Thought filed a petition contesting the legitimacy of an Indian Penal Code provision that permits a husband to engage in sexual activity with his wife if she is between the ages of 15 and 18. Independent Thought contended that because the exclusion permitted the sexual exploitation of minors, it infringed against young girls' rights to equal protection under the law.  The group said that the exclusion was discriminatory and went against international agreements pertaining to children's rights. The exception was overturned by the Supreme Court, which agreed with Independent Thought and ruled that it violated young girls' rights to be shielded from sexual exploitation and abuse.  The exemption, according to the Court, was "arbitrary, capricious, whimsical, and violative of the rights of the girl child." Because it established that children's rights, particularly the right to be shielded from sexual exploitation and abuse, must take precedence over cultural and traditional customs, the Independent Thought case is noteworthy.  In India's battle against child marriage and other types of gender-based violence, the case continues to set a significant precedent.

CONCLUSION

The 2013 Prevention of Sexual Harassment of Women at Workplace Act (POSH Act) was a significant turning point in India's efforts to create workplaces that are safer and more inclusive.   This regulation, which is based on the Supreme Court's landmark 1997 Vishaka Guidelines, acknowledges the serious harm that sexual harassment causes to women's dignity, mental health, and career development.   The Act provides a comprehensive framework for the prevention, prohibition, and redress of sexual harassment in the workplace by mandating the creation of Internal Committees (ICs), deadlines for addressing complaints, and the duty of employers to ensure a safe workplace The POSH Act's implementation has faced some challenges despite its progressive objectives.   Employee illiteracy, inadequate training for Internal Committee members, underreporting due to embarrassment or retaliation, and inadequate documentation in smaller organizations continue to undermine its efficacy.   Some people consider the Act's procedural requirements to be merely formalities rather than a means of influencing the culture of a business.  To effectively accomplish the objectives of the POSH Act, organizations must adopt a proactive approach and go above and beyond compliance.   Establishing conveniently accessible reporting channels, ensuring unbiased and confidential investigations, hosting regular training and awareness-raising activities, and fostering an environment at work founded on accountability and mutual respect are all necessary to achieve this. Governmental and civil society organizations must also be involved in raising public awareness, monitoring implementation, and offering victims legal and psychological support.  In conclusion, even while the POSH Act offers a strong legal foundation for addressing workplace sexual harassment, its full impact won't materialize until there is a common goal to change ingrained workplace practices.   Creating safe, polite, and inclusive workplaces is not only mandated by law, but it is also morally right and can promote greater gender equality, increased employee satisfaction, and corporate success.