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EVALUATIVE STUDY OF LOOPHOLES IN POSH Act, 2013

ABSTRACT

Each time a woman stands up for herself, she stands up for all women. The government has attempted to safeguard the dignity of working women through the POSH Act. However, this has not yielded a satisfactory outcome. The purpose of this study is to investigate the inadequacies and shortcomings of the POSH Law in terms of its enforcement. Regardless of gender, individuals can be subject to sexual harassment in the workplace. There are a variety of factors that can contribute to the occurrence of this form of harassment. It is important to note that sexual harassment is not limited to requesting sexual favors or engaging in physical contact. To ensure the highest levels of productivity, employers and authorities should take proactive steps to identify and respond to workplace harassment.


KEYWORDS: Women, Sexual Harassment, Workplace, POSH Act, and Loophole.


INTRODUCTION

In a patriarchal society, women have faced numerous challenges due to gender inequality and prejudgment. They have been subjected to violence and exploitation in a male-dominated society since ancient times. Women have been subject to abuse on a variety of levels, including economic, spiritual, physical, and sexual. In the 20th century, women began to defend their rights. Participating in the nation-building process is an essential part of achieving their rights. Economic independence will speed up the process of women's liberation and strengthen their status. Women are progressively entering the formal workforce in India. Women's rights in the workplace are more important than ever considering this development. "Right to Work[1]" includes safeguards against sexual harassment in the workplace.

Women in the workplace are subject to sexual harassment, a form of violence based on gender. This can lead to a loss of self-confidence, respect, and dignity, as well as a violation of their constitutional rights and civil liberties. This issue has not been a new one but has been brought to the forefront by rapidly evolving workplace dynamics. India has legislation in place to protect women from sexual harassment, known as the POSH Act, 2013[2], which was introduced in 1992 in response to the Bhanvari Devi Rape Case at the workplace. In 1997, the Vishakha v. State of Rajasthan[3] case was brought forward, resulting in the introduction of the Vishakha Guidelines, which provided a definition of sexual harassment that had not previously been addressed. The Vishakha Guidelines define sexual harassment as follows: “Sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as[4]-

a) physical contact and advance.

b) a demand or request for sexual Favors.

c) sexually-colored remarks.

d) showing pornography.

e) Any other unwelcome physical, verbal, or non-verbal conduct of sexual.”

In Apparel Export v. A.K. Chopra (1999)[5], the Supreme Court again reaffirmed the definition of sexual harassment by stating that it means any action or gesture intended to outrage the modesty of a female employee, directly or indirectly.


LEGAL CONCEPT OF SEXUAL HARASSMENT IN INDIA

Parliament passed the POSH Act in its 64th year of independence, making it applicable across the country. It came into force on December 9th, 2015, after the POSH Rules were enforced. Usually, a law becomes effective right away after it's been notified, but in this case, it was published by the Ministry of Law and Justice for general info. It took almost 8 months for the rules to be published in the Gazette. The POSH Act aims to create a safe working environment for all women working in different sectors in India, whether they're organized or not. It defines sexual harassment as "physical contact and advances, requests or demands for sexual favors, sexually colored remarks, the display of pornography or any other unwanted physical, verbal or non-verbal behavior of sexual nature." This law applies all over India.

The Indian Constitution has articles 14[6], 15[7], and 21 that talk about equality and freedom. Basically, everyone is supposed to be treated the same under the law, free from any kind of discrimination, and have the right to live an independent life. But sexual harassment in the workplace is a serious form of discrimination based on gender. This is a violation of a woman's fundamental rights, her dignity, and her physical and mental health. It's unhealthy for productivity, and it affects people's lives and livelihoods. It's even worse if the victim is placed in a gender hierarchy, as this can lead to even more inequality in the workplace and society. Unfortunately, women don't report sexual harassment to the right people in most cases because they're scared of losing their job or their personal and professional life.


GLOBAL ASPECT OF SEXUAL HARASSMENT

The ILO is a UN agency that works to promote social justice and recognize human and labor rights around the world. It's made up of 187 countries and is responsible for setting labor standards, creating policies, and helping to create decent working conditions for men and women. Sexual harassment is especially serious when it's done by anyone who has the power to shape someone's career (like hiring, assigning them, renewing a contract, evaluating their performance, or promoting them). In both developed and developing countries, there's a problem with sexual harassment among employees, but countries usually handle it on their own, leaving women who are affected to fend for themselves.


POSH ACT LOOPHOLES

Every piece of legislation has its pros and cons, just like any other law. The POSH Act was introduced in India in 2013 with the aim of creating a safe and secure workplace for women and preventing and resolving cases of sexual harassment. However, as with any law, there are some loopholes or areas where the POSH Act could be improved.

In order to evaluate the POSH Act loopholes, a thorough analysis of the law and its implementation in various jurisdictions is necessary. The following are some of the loopholes that need to be addressed:


THE DEADLINE FOR HANDLING COMPLAINTS

If the Internal Complaints Committee has cause to think that any circumstances prohibited the complainant from registering the complaint within the limitation period[8], the term for filing the complaint may be extended by an additional three months from the date of the most recent incident. However, the six-month window must be extended further because sexual harassment is a serious incident that has a lasting impact on the victim's life. This will help the victim overcome the subsequent trauma and file a complaint.

Anonymity

Anonymous reporting of sexual harassment is not permitted. Although the SHE Box (launched by the Indian Ministry for Women helps direct complaints by women directly to the ICC[9]), it does not permit the filing of anonymous complaints, which may be highly critical for a society where women face many stigmas when they must identify a perpetrator. Clarification about the processing of sexual harassment occurrences based on evidence but without formal complaints from complainants is required under the POSH Act. Likewise, procedures for handling anonymous complaints are necessary.


Personnel Covered

The majority of women employed in the unorganized sector are not protected by labor laws and do not receive social benefits like maternity leaves, sick days, or health insurance. They work in a dangerous setting and frequently experience pervasive sexual harassment. They lack accessible routes for redress and do not have adequately functioning LCs for their workplace, so they are unable to report it.

Another important group of employees who are susceptible to sexual harassment is domestic workers because of the nature of their jobs. The POSH Act of 2013 explicitly says that "any female who is already governed by the Supreme Court service regulation" is excluded from its definition of "aggrieved women."


Pecuniary Punishment

When sexual harassment complaint has been proved, only a monetary penalty under the POSH is mentioned which is up to 50000, which creates no effect on the big businessman as they can easily pay the money. Strict punishment provisions should be imposed on the accused.


INVESTIGATION COMMITTEE

Section 4(1) of the POSH Act requires that if a workplace has multiple offices and/ or administrative units, each of those locations must have an IC committee. This provision places a much greater burden on the small business with a franchise such as a restaurant or service center, which has a very small margin per establishment. It also serves as a deterrent for small businesses or start-ups to open franchises in multiple locations or to keep the employee count below 10.


DECEITFUL BLAMES

The POSH Act has been met with a great deal of criticism from men, who fear that it may be used by women to settle grievances with individuals they do not agree with. Men are now hesitant to communicate with their female colleagues, as they are concerned about providing feedback to female employees. This lack of engagement has resulted in a decrease in the effectiveness of the POSH Act across organizations. The POSH Act provides for the redress of false complaints and the taking of punitive action against those who make malicious complaints, which should be incorporated into policies and awareness sessions for employees and complaints committees.


MAKING THE LAW “GENDER NEUTRAL”

According to statistics, about 5% of all male employees are subjected to sexual harassment in the workplace[10]. However, unlike women, male employees cannot file sexual harassment complaints under the POSH law because it only applies to female employees. Instead of promoting gender parity in the workplace, it drives an invisible chasm between men and women. If a company wants to establish a committee to investigate sexual harassment allegations against men, it must first set up a separate committee as well as establish a separate policy for sexual harassment allegations by men.


CONCLUSION

Sexual harassment continues to exist in developed and developing countries. It has permeated society for generations, transcending race, sex, gender, and color. No matter whether you are a woman or a man, you can face sexual harassment in your workplace. There are many reasons why sexual harassment can occur in your workplace. Sexual harassment is not just about asking for sexual favors or unwanted physical contact. It can also be about the psychological pressure that the harasser is under because of his sexual assault or coercion, or because of the unwanted sexual attention he or she gives you. The POSH Act should include a clear definition of ‘applicability’, ‘accountability,’ ‘implementation’, and ‘monitoring’ to promote better reporting. Employers and authorities should adopt, implement, and promote best practices for detecting and responding to workplace harassment to achieve high productivity. The best way to avoid such unfair working conditions is by actively advocating for initiatives that raise awareness and promote prevention efforts.


FAQ

Q1: Where should the ICC be located?

Ans1. All workplaces should have an office or administrative unit with the Internal Complaint Committee.

Q2. How long do the people on the internal complaint committee stay in office?

Ans2.The Presiding Officer, as well as each member of the internal committee, will stay in office for a maximum of three years from when they're appointed.

Q3. Who makes up the Local Complaints Board?

Ans3.The Local Complaints Board is made up of the District Officer in each district.

Q4. How do I file a complaint?

Ans4.An aggrieved woman may file a written complaint of workplace sexual harassment with the Internal Committee/Local Committee within 3 months of the occurrence of the incident or, in the case of a string of incidents, within the occurrence of the last incident.

Q5. Can we make a verbal complaint in POSH Act?

Ans5. No, Written submission is necessary to file a complaint against an employer.


REFERENCES [1] INDIA CONST. art.41. [2] Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act,2013, No.14, Acts of Parliament,2013(India). [3] Vishaka& Ors. v. State of Rajasthan (1997) 6 SCC 241 (India). [4] Vishaka& Ors. v. State of Rajasthan (1997) 6 SCC 241 (India). [5] AIR 1999 SC 625 (India). [6] INDIA CONST. art 14. [7] INDIA CONST. art15, cl 1. [8] POSH ACT (2013), Sec.18, cl.2. [9] POSH ACT (2013), Sec.4. [10] Indian Journal of Integrated Research in Law. VOL II Issue III, 2583-0538.


AUTHOR – Khushhali Saxena

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