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Prevention of Sexual Harassment (PoSH) Act 2013

Context:

More than half — 16 — of India’s 30 national sports federations do not have an Internal Complaints Committee (ICC), a legal requirement under the Prevention of Sexual Harassment (PoSH) Act, 2013.

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

  1. What exactly is the law against sexual harassment of women at the workplace?
  2. What led to the creation of the PoSH Act?
  3. What are the key provisions of the PoSH Act regarding the complaints committee?
  4. What constitutes sexual harassment under the PoSH Act?
  5. What protection does the Act provide against false complaints of sexual harassment?

What exactly is the law against sexual harassment of women at the workplace?

  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, commonly known as the PoSH Act, was passed in 2013.
  • It defined sexual harassment, lay down the procedures for complaint and inquiry, and the action to be taken in cases of sexual harassment.

What led to the creation of the PoSH Act?

Background:

  • In 1992, a social worker named Bhanwari Devi fought against the marriage of a one-year-old baby girl.
  • As retribution, she was allegedly gang-raped.
  • Women’s rights groups, including one called Vishaka, filed a case in court over the incident.

Vishaka Guidelines:

  • In 1997, the Supreme Court laid down the Vishaka Guidelines in response to the case.
  • The guidelines defined sexual harassment and placed three obligations on institutions: prohibition, prevention, redress.
  • The guidelines required institutions to establish a Complaints Committee to investigate matters of sexual harassment of women in the workplace.
  • The court made the guidelines legally binding.

What are the key provisions of the PoSH Act regarding the complaints committee?

Internal Complaints Committee (ICC):

  • The PoSH Act mandates that every employer with 10 or more employees must constitute an Internal Complaints Committee (ICC) at each office or branch.
  • The ICC is responsible for investigating complaints of sexual harassment in the workplace.
  • The ICC must have at least one external member who is familiar with issues relating to sexual harassment.

Definition of sexual harassment:

  • The PoSH Act defines various aspects of sexual harassment, including physical, verbal, and non-verbal acts.
  • The Act covers all women, whether employed at the workplace or not, who allege to have been subjected to any act of sexual harassment.

Protection for women:

  • The PoSH Act protects the rights of all women who are working or visiting any workplace, in any capacity.
  • The Act ensures that women can file complaints without fear of retaliation or victimization.

What constitutes sexual harassment under the PoSH Act?

Under the 2013 law, sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:

  • Physical contact and advances
  • A demand or request for sexual favours
  • Sexually coloured remarks
  • Showing pornography
  • Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

A ‘Handbook on Sexual Harassment of Women at Workplace’ published by the Ministry of Women & Child Development contains more detailed instances of behaviour that constitutes sexual harassment at the workplace. These circumstances include, broadly:

  • Sexually suggestive remarks or innuendo; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life;
  • Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails;
  • Intimidation, threats, blackmail around sexual favours;
  • Threats, intimidation or retaliation against an employee who speaks up about these;
  • Unwelcome social invitations with sexual overtones, commonly seen as flirting; and
  • Unwelcome sexual advances.

The Handbook says “unwelcome behaviour” is experienced when the victim feels bad or powerless, and when it causes anger/ sadness or negative self-esteem. Unwelcome behaviour is “illegal, demeaning, invading, one-sided and power-based”.

In addition, the PoSH Act mentions five circumstances that amount to sexual harassment:
  • Implied or explicit promise of preferential treatment in her employment;
  • Implied or explicit threat of detrimental treatment;
  • Implied or explicit threat about the complainant’s present or future employment status;
  • Interference with the complainant’s work or creating an offensive or hostile work environment;
  • Humiliating treatment of the complainant that is likely to affect her health or safety.

What is the procedure for complaint under the Act?

  • It is not compulsory for the aggrieved victim to file a complaint for the ICC to take action. The Act says that she “may” do so — and if she cannot, any member of the ICC “shall” render “all reasonable assistance” to her to complain in writing.
  • If the woman cannot complain because of “physical or mental incapacity or death or otherwise”, her legal heir may do so.
  • Under the Act, the complaint must be made “within three months from the date of the incident”.
  • However, the ICC can “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”.
  • The ICC “may”, before inquiry, and “at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation” — provided that “no monetary settlement shall be made as a basis of conciliation”.
  • The ICC may either forward the victim’s complaint to the police, or it can start an inquiry that has to be completed within 90 days.
  • The ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath, and requiring the discovery and production of documents.
  • When the inquiry is completed, the ICC must provide a report of its findings to the employer within 10 days. The report must also be made available to both parties.
  • The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, should not be made public.

What is the process after the ICC has filed its report?

Action by employer:

  • If the allegations of sexual harassment are proved, the ICC will recommend to the employer to take action in accordance with the provisions of the service rules of the company.
  • The recommended action may vary from company to company.

Compensation:

  • The ICC may recommend that the company deduct the salary of the person found guilty as it may consider appropriate.
  • The compensation awarded is based on several factors, including the suffering and emotional distress caused to the woman, loss in career opportunity, her medical expenses, income and financial status of the respondent, and the feasibility of such payment.

Appeal:

  • If either the aggrieved woman or the respondent is not satisfied with the decision, they may appeal in court within 90 days.

What protection does the Act provide against false complaints of sexual harassment?

Section 14:

  • Section 14 of the Act deals with punishment for false or malicious complaints and false evidence.
  • In such a case, the ICC may recommend to the employer that action be taken against the woman or the person who made the complaint in accordance with the provisions of the service rules of the company.

Protection against false complaints:

  • The Act makes it clear that action cannot be taken for mere inability to substantiate the complaint or provide adequate proof.
  • This means that if the complaint is not proved, action cannot be taken against the complainant solely based on lack of evidence.

-Source: Indian Express


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