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Implementational Challenges of POSH Act, 2013 and How to Solve It


ABSTRACT:-


The enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”) was highly influenced by the Nirbhaya Rape case. Here the legislation upheld the Visakha Guidelines given in the landmark case of Visakha vs. State of Rajasthan.


Unfortunately, even ten years after they were passed, the Act and the Rules still contain a number of drafting flaws. The legislative strategy adopted by the Act is unique in that the legislators deliberately decided against adding more jurisdiction to an already overburdened court system. Rather, the Act required every employer to set up an Internal Complaints Committee (or "IC"), whose job it is to receive and look into allegations of sexual harassment in compliance with the Act's and the Rules' prescribed processes. Section 354A of the Indian Penal Code ("IPC") was concurrently enacted to criminalise sexual harassment. This is not going as planned and eventually, the appealed cases are going to the High Courts, overburdening the Indian Judiciary.


INTRODUCTION:-


It took 16 years for the Indian Parliament to establish the law against sexual harassment of women in the workplace, as per the orders given by the Supreme Court of India in the historic case of Visakha v. State of Rajasthan and implement the "Visakha Guidelines". Citing a media article indicating that 16 of the 30 national sports federations in the nation had not yet established an ICC, the Supreme Court recently raised attention to the deficiencies in the ICC constitutions. The wrestlers' protest in Delhi against Wrestling Federation of India (WFI) chief Brij Bhushan Sharan Singh over alleged sexual harassment was the context for this report. The verdict also called attention to the ICCs' incorrect constitutions in the situations in which they were set up, highlighting the fact that these bodies either lacked a required external member or had too few members. However, there are other implementation-related issues with the POSH Act besides this. Legal professionals, stakeholders, and previous committee members have expressed various issues about the statute and its application since it was passed. The Court correctly noted that the victim's physical, emotional, and self-esteem are all negatively impacted by sexual harassment. However, because they are unsure of the POSH Act's redressal procedure, they are often reluctant to disclose such misconduct. Underreporting is further exacerbated by a lack of trust in the procedure and its results. In addition to negatively impacting women's personal lives, this social ill also stunts their ability to advance professionally—some may even quit their employment. Resolving these issues and restoring trust in the system are critical.


PROBLEMS AND ISSUES ARISING:-


The shortcomings of the POSH Act include its focus on formal workplaces, potentially excluding informal settings. Here are some of the issues with the POSH Act-


  • Lack of expertise of the IC- The law has placed the burden of implementing the Act and Rules on the IC, which has been granted the authority of the Civil Court to conduct the investigation and review the supporting documentation. In reality, IC members rarely or never have handled such delicate and formal objections. Since many of these reports violate natural justice principles—principles that the members of the IC may not even be familiar with—they are dismissed. This seems to be a basic problem in the Act's and the Rules' design.

  • Corner Office Harassment- In certain cases, when the complaint is directed towards senior executives of the company, like the CEO or CFO, the IC members may be reluctant to undertake a thorough investigation. This is a real implementation challenge for the Act that casts doubt on the IC members' neutrality and impartiality.

  • Confidentiality- Employers are required to uphold stringent secrecy. According to the Act, no information about the investigation may be disclosed in any way to the media, press, or general public. In actuality, though, it has been shown that material is almost always leaked either in the media or within the organisation, placing undue pressure on all parties—including the members of the IC.

  • How to deal with electronic evidence- The way the IC handles electronic evidence, such as video recordings and WhatsApp exchanges between the accused and victim, is one important matter to consider. The victim and the accused frequently export their Whatsapp talks to email, with printed copies sent to the ICC.

  • Fear of Retaliation- The majority of respondents think that reporting the harasser could lead to further harassment, embarrassment, and social disgrace. These issues are made worse if the woman voices grievances against a senior member of staff. She runs the risk of facing hostility from peers or superiors, a bad recommendation from prospective employers, or maybe losing her job.

  • Inadequate Reporting: Employees may hesitate to report incidents due to fear of retaliation, job security concerns, or a lack of confidence in the efficacy of the reporting mechanism.

  • Third-Party Harassment: The POSH Act doesn't explicitly address harassment by third parties, such as clients or vendors, creating challenges in dealing with such cases effectively.

  • Informal Settings: The Act predominantly focuses on formal workplaces, leaving gaps in addressing sexual harassment issues that may arise in informal or off-site settings.

  • Delayed Justice: Protracted inquiry processes and legal proceedings can lead to delayed justice, impacting the effectiveness of the redressal mechanism and discouraging complainants.

  • Small and Medium Enterprises (SMEs): SMEs may face resource constraints in implementing and sustaining POSH Act compliance, making it challenging for them to establish robust mechanisms for prevention and redressal.


SUGGESTIONS:-


Addressing the challenges of implementing the Prevention of Sexual Harassment (POSH) Act requires a multifaceted approach. Firstly, organizations must prioritize awareness and training programs to ensure that employees, management, and members of the Internal Committee are well-informed about the provisions of the Act. Regular workshops, seminars, and online training modules can help disseminate information, fostering a culture of understanding and compliance. 


For informal settings and small and medium enterprises (SMEs), customized awareness and training programs can be developed to cater to the specific needs and constraints of these contexts. Collaborative efforts from industry associations, government bodies, and non-governmental organizations can provide resources and support to SMEs in implementing POSH Act compliance effectively. Regarding third-party harassment, advocacy for legal reforms to explicitly address and penalize such instances under the POSH Act is essential. Organizations should also incorporate clauses in contracts with third parties, such as clients and vendors, outlining expectations and consequences for non-compliance with anti-harassment policies.

To tackle the challenge of inadequate reporting, organizations should establish multiple reporting channels, including anonymous reporting options. Encouraging a supportive environment where employees feel assured that their concerns will be treated seriously and confidentially is vital.


CONCLUSION:-


Victims now feel more comfortable reporting suspected incidents of sexual harassment thanks in large part to the Act. Since the IC is the centre of the Act, it must get legal education and training to fulfil its quasi-judicial duties and ensure the Act and Rules are implemented as effectively as possible. It would be a positive move to amend the Act to require the appointment of a minimum of one member of the IC with legal experience.


FREQUENTLY ANSWERED QUESTIONS (FAQ):-


  1. What is the limitation under the Posh Act?

Firstly, it primarily addresses harassment in formal workplaces, potentially excluding informal settings. Secondly, it focuses on employer-employee relationships, potentially neglecting harassment in other contexts. Additionally, the Act doesn't explicitly cover third-party harassment or address instances outside the workplace. Furthermore, the Act lacks specific guidelines for handling false complaints, raising concerns about potential misuse.


  1. How do you implement a posh act in an organization?

Implementing the Prevention of Sexual Harassment (POSH) Act in an organization involves several key steps:


Policy Formation:- Develop a comprehensive anti-sexual harassment policy by the POSH Act. Clearly outline the definitions of sexual harassment, prohibited behaviours, and the process for filing complaints.


Internal Committee (IC):- Form an Internal Committee, as mandated by the Act, comprising both male and female employees from various levels. Ensure that at least one external expert is included if the organization has more than 10 employees.

Training: Provide training to employees, especially members of the Internal Committee, on handling complaints, conducting inquiries, and maintaining confidentiality.


Complaint Redressal Mechanism:- Establish a confidential and accessible mechanism for reporting complaints. Ensure that employees can report harassment without fear of retaliation.


Investigation Process:- Clearly define the process for investigating complaints. Investigations should be conducted promptly, impartially, and with sensitivity, maintaining confidentiality throughout.


Disciplinary Action:- Specify the range of disciplinary actions that may be taken if an allegation is proven. Ensure that the disciplinary actions are in line with the severity of the offence.


Monitoring and Review:- Regularly review and monitor the implementation of the POSH policy. This includes assessing the effectiveness of awareness programs, the responsiveness of the Internal Committee, and the overall compliance with the Act.

Annual Report: Prepare and submit an annual report to the appropriate authorities, as required by the POSH Act.


  1. What are the shortcomings of the Posh Act?

The shortcomings of the POSH Act include its focus on formal workplaces, potentially excluding informal settings. It lacks clarity on third-party harassment and doesn't explicitly address instances beyond the workplace. The Act also needs clearer guidelines on handling false complaints to prevent potential misuse, highlighting the need for comprehensive amendments to address evolving challenges in combating sexual harassment effectively.


  1. What is the main objective of posh?

The main objective of the Prevention of Sexual Harassment (POSH) Act is to create a safe and secure working environment for women by preventing and addressing incidents of sexual harassment in the workplace. It aims to establish mechanisms for the redressal of complaints, promote gender-sensitive workplaces, and ensure the dignity and well-being of women employees in both the public and private sectors in India.


  1. What are the criteria for Posh IC?

The Internal Committee (IC) under the Prevention of Sexual Harassment (POSH) Act must adhere to certain criteria:-


Composition:- The IC should consist of at least four members, including a Presiding Officer who must be a woman employed at a senior level, and at least two members from among employees committed to women's causes or who have experience in social work or legal knowledge.


Representation:- The IC should have at least one external member from a non-governmental organization or association committed to the cause of women or a person familiar with issues related to sexual harassment.


Term:- Members of the IC are typically appointed for a term of three years and should not be transferred during this period.


Reconstitution:- In case of any member's resignation or termination, the IC should be promptly reconstituted to maintain its functionality.


Adhering to these criteria ensures a diverse and effective Internal Committee for handling sexual harassment complaints in the workplace.







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