- The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, enacted in 2013, intends to address workplace sexual harassment; nevertheless, the Supreme Court of India has noted gaps and uncertainties in its implementation.
- The court has asked government bodies to confirm the existence of Internal Complaint Committees and ensure that their composition is consistent with the Act.
GS Paper -1 and GS Paper-2: Issues related to women, Social Issues
What are the roadblocks to the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013’s implementation? What steps should be taken to improve the act’s implementation?
How did the PoSH Act come to be?
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, often known as the PoSH Act, was enacted in reaction to the gang rape of Bhanwari Devi in 1992.
- To remedy the lack of a dedicated law, the Supreme Court created the Vishakha Guidelines in 1997, which provided temporary tools to combat workplace sexual harassment.
- The Protection of Women Against Sexual Harassment at Workplace Bill was introduced in 2007 and became law on December 9, 2013.
- The purpose of the PoSH Act is to prevent, ban, and rectify sexual harassment while also promoting gender equality and protecting the dignity of female employees.
Under the PoSh Act, how are sexual harassment, the workplace, and an employee defined?
- Sexual Harassment: o Physical contact, sexual approaches, demands or requests for sexual favours, sexually coloured remarks, exhibiting pornography, and any other unwanted physical, verbal, or nonverbal sexual conduct.
- Five circumstances that constitute sexual harassment: i. Implied or explicit promise of preferential treatment in employment; ii. Implied or explicit threat of adverse treatment in employment; iii. Implied or explicit threat about present or future employment status; iv. Interference with work or creation of an intimidating, offensive, or hostile work environment; and v. Humiliating treatment likely to affect health or safety.
- Workplace: o Definition expanded beyond traditional offices to encompass all forms of organisations across industries.
- Includes non-traditional workplaces and venues where employees go for work.
- This applies to both public and commercial sector organisations in India.
- Employee: o Broadly defined to encompass all female employees.
- Regular, temporary, contractual, ad hoc, daily pay employees, apprentices, interns, and even those hired without the knowledge of the major employer are all included.
- All female employees have the right to seek remedies for workplace sexual harassment.
What are the obligations placed on employers?
- Internal Complaints Committee (ICC): Employers with more than ten workers are required to form an ICC.
- The ICC is in charge of accepting and handling official sexual harassment complaints from female employees.
- The committee must be led by a woman and have at least two female employees.
- Another employee and a third-party member, such as an NGO worker with five years of expertise dealing with sexual harassment concerns, should be included.
- Local Committee (LC): The Act requires the establishment of a Local Committee in each district.
- LC handles complaints from women working in businesses with fewer than ten employees, as well as from the informal sector, which includes domestic workers, home-based workers, and voluntary government social workers.
- Inquiries and Compliance: o Internal Complaints Committees (ICC) and Local Committees (LC) conduct inquiries in accordance with the POSH Act and natural justice principles.
- A woman can file a written complaint with either the internal or municipal complaints committee within three to six months of the incident.
- Resolution Process: o Except for financial settlements, the committees might address the issue by conciliation between the complainant and the respondent.
- Alternatively, the committees can launch an investigation and then take necessary action based on their findings.
- Annual Audit Report: o Employers are required to file an annual audit report with the district officer, including the number of sexual harassment complaints received and the steps taken.
- Employer Responsibilities: o Employers must hold regular training and awareness programmes to educate employees about the Act.
- They must hold orientation sessions for ICC members.
- Failure to create an ICC or comply with other provisions may result in fines of up to $50,000, with increased penalties for repeat offences.
- They must hold orientation sessions for ICC members.
Implementation stumbling blocks
- Inadequate ICC Constitution: o Some organisations have not created Internal Complaints Committees (ICCs) or do not have enough members, including necessary external members.
- Inadequate Clarity and Accountability: o The Act lacks clarity on enforcement accountability, and state governments have not taken aggressive measures to verify compliance.
- Limited Access for Informal Sector Workers: o A substantial percentage of women in the informal sector lack access to the law, and there is a lack of information of the Act and complaint procedures.
- Underreporting and Power Dynamics: o Fear of professional repercussions, as well as power imbalances, lead to considerable underreporting of workplace sexual harassment instances.
- probes and Evidence Challenges: o ICC probes frequently rely significantly on solid evidence, which may not be readily available in cases of sexual harassment.
- Due Process Requirements: o ICCs shall adhere to natural justice principles while taking into account the special dynamics of sexual harassment as a form of gender discrimination.
Recent Concerns and Directions of the SC:
- The Importance of Maintaining Dignity and Respect: o The Supreme Court emphasised that the PoSH Act’s effectiveness is dependent on stringent enforcement and a proactive attitude by all parties.
- It emphasised the negative effects of sexual harassment on women’s self-esteem, emotional well-being, and physical health.
- Ensuring a Safe and Secure Workplace: o According to the Court, if women are not assured of a safe and secure workplace, they may be hesitant to step out and use their talent and skills.
- It emphasised the need of authorities, management, and businesses prioritising the creation of a welcoming work environment.
- Verification and Compliance: o The Court asked the Union, States, and UTs to investigate whether various organisations had established ICCs, LCs, and ICs in accordance with the Act.
- Authorities were instructed to post committee information on their websites and file compliance affidavits with the Court within eight weeks.
- The PoSH Act is critical in combating sexual harassment in Indian workplaces.However, the Supreme Court’s recent concerns emphasised the need for robust implementation and closer adherence to the Act’s requirements.
- Overcoming obstacles, ensuring accountability, raising awareness, and creating safe and respectful work environments for women are all critical.