Workplace sexual harassment is a form of gender discrimination which violates a woman’s fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India (“Constitution”). Workplace sexual harassment not only creates an insecure and hostile working environment for women but also impedes their ability to deliver in today’s competitive world. Apart from interfering with their performance at work, it also adversely affects their social and economic growth1 and puts them through physical and emotional suffering.
The elimination of gender-based discrimination has been one of the fundamentals of the Constitutional edifice of India. The principle of gender equality is enshrined in the Constitution, in its Preamble, fundamental rights, fundamental duties and Directive Principles. However, workplace sexual harassment in India, was for the very first time recognized by the Supreme Court of India (“Supreme Court”) in its landmark judgment of Vishaka v. State of Rajasthan. (“Vishaka Judgment”), wherein the Supreme Court framed certain guidelines and issued directions to the Union of India to enact an appropriate law for combating workplace sexual harassment. Nothing less of an irony, the POSH Act and the POSH Rules was enacted 16 years after the Vishaka Judgement.
In the absence of a specific law in India, the Supreme Court, in the Vishaka Judgment, laid down certain guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment (“Vishaka Guidelines”) which were being followed by employers until the enactment of the POSH Act. The Supreme Court for the first time, acknowledged the glaring legislative inadequacy and acknowledged workplace sexual harassment as a human rights violation. In framing the Vishaka Guidelines, the Supreme Court placed reliance on the Convention on Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of the United Nations, in 1979, which India has both signed and ratified. As per the Vishaka Judgment, the Vishaka Guidelines issued under Article 32 of the Constitution, until such time a legislative framework on the subject has been drawn-up and enacted, would have the effect of law and would have to be mandatorily followed by organizations, both in the private and government sector.
This legislation not only provides a safe working environment but also upholds the fundamental rights of working women who were often subjected to sexual atrocities at workplace due to their vulnerable stance in the society.
The enactment of this legislation provided such working women with safety and security at workplaces.
Diving deeper into the judgment of Vishaka case which was conveyed by Chief Justice J.S Verma as a representative of Justice Sujata Manohar and Justice B.N Kripal on account of writ petition which was file by Vishaka the victim of this case. The court observed that the fundamental rights under Article 14, 19(1)(g) and 21 of Constitution of India that, every profession, trade, or occupation should provide safe working environment to the employees. It hampered the right to life and the right to live a dignified life. The basic requirement was that there should be the availability of safe working environment at workplace. The Supreme Court held that, women have fundamental right towards the freedom of sexual harassment at workplace. It also put forward various important guidelines for the employees to follow them and avoid sexual harassment of women at workplace. The court also suggested to have proper techniques for the implementation of cases where there is sexual harassment at workplace. The main aim/objective of the Supreme Court was to ensure gender equality among people and also to ensure that there should be no discrimination towards women at their workplace. After this case, the Supreme Court made the term Sexual harassment well defined, accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt or misbehaviour, or any sexual desire towards women, sexual Favor will come under the ambit of sexual harassment.
The PoSH Act, as mandatary compliance, requires every company having more than ten employees to constitute an Internal Complaints Committee (ICC) in the prescribed manner to receive and address the complaints of any sort of sexual harassment from women in a time-bound and extremely confidential manner. The person who can file a complaint has to be a woman; the POSH Act is not gender-neutral.
PROVISIONS OF THE POSH ACT
The Act defines sexual harassment at the workplace and creates a mechanism for the redressal of complaints and safeguards against false or malicious charges.
Every employer is required to constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees.
The Complaints Committees have the powers of civil courts and are required to provide for conciliation before initiating an inquiry if requested by the complainant.
Penalties have been prescribed for employers for non-compliance with the provisions of the Act.
The State Government will notify the District Officer in every district, who will constitute a Local Complaints Committee (LCC) to enable women in the unorganized sector or small establishments to work in an environment free of sexual harassment.
Features of the PoSh Act
The POSH Act provides a civil remedy to women and is in addition to other laws that are currently in force, i.e., both civil, as well as criminal recourse, is available to an aggrieved woman. The POSH Act has been enacted and in force since 2013, with a three-fold objective:
Prohibition of sexual harassment at the workplace.
Preventing and protecting women against workplace sexual harassment; and
To ensure effective redressal of complaints of workplace sexual harassment.
Definition of “Sexual Harassment” as per POSH Law: The POSH Act defines “Sexual Harassment” in line with the Supreme Court’s definition of ‘sexual harassment’ in the Vishaka Judgement. As per POSH Act, “Sexual Harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
Physical contact and advances; or
A demand or request for sexual favors; or
Making sexually coloured remarks; or
Showing pornography; or
Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature
With the above definitions and provisions, an insight into the PoSH Act is understandable. Employers have certain obligations to go through under this act such as setting up an internal complaint committee etc.
As India progresses as a nation, it is expected for organizations and workplaces to stay updated with the development and encourage safe and secure work environment free from any kind of sexual harassment and rid all forms of discrimination. The recognition of the right to protection against workplace sexual harassment is an intrinsic component of the protection of women’s human rights. It is a move towards providing women independence, equality of opportunity and the right to work with dignity.
It is indisputable to say that the POSH Law is protecting many working women around India from being sexually harassed at their workplaces. It not only strengthens and gives confidence to female employees but also plays a major role in the widespread removal of such incidents in India. The POSH Law has empowered women and has been a platform for them to voice their concerns relating to workplace sexual harassment in India. However, on the other side considering the changing environment, the legislature to provide for the amendment in the POSH law to provide for the provisions to protect the men from sexual harassment.
AUTHOR – Kaushal S