IMPLEMENTATIONAL CHALLENGES UNDER POSH ACT
BACKGROUND
The Parliament took 16 years to apply the directions issued by the Supreme Court of India in 1997, in the corner case of Vishaka vs. the State of Rajasthan[1] (“Vishaka Guidelines”) to legislate a law for the forestalment of sexual importunity of women at the plant. 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 veritably late, but more so than no way.
The Prevention of Sexual Harassment (POSH) Act[2] is a legal frame in India that aims to help and address sexual importunity in the plant. While the act provides a solid foundation for creating safe and inclusive work surroundings, there can be colourful perpetration challenges that associations may face. Some of these challenges include:
Lack of Awareness: One of the primary challenges is the lack of mindfulness about the vittles and conditions of the POSH Act. Numerous associations and workers may not be familiar with the act or its counteraccusations, which can hamper effective perpetration. In the case of Vishaka and others. State of Rajasthan (1997), the Supreme Court of India laid down guidelines for precluding sexual importunity at the plant before the enactment of the POSH Act. 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 veritably late, but more so than no way. An identifying point of the legislative scheme under the Act is that the lawgivers have purposely decided not to put the new governance on a formerly burdened judicial structure. Rather, the Act handed for the setting up of an Internal Complaints Committee (“IC”) at every plant for the purpose of entering and inquiring into complaints of sexual importunity by following the processes specified under the Act and the Rules. The Indian Penal Code (“IPC”) was contemporaneously amended by fitting Section 354A to make sexual importunity a felonious offence. Unfortunately, indeed after a decade since the enactment of the Act, several drafting crunches continue to live both in the Act and the Rules. This has made the task of the IC veritably gruelling.
Compliance and Internal panels: The Act authorizations the confirmation of Internal Complaints panels (ICCs) at workplaces to address sexual importunity complaints. A challenge lies in icing proper constitution and functioning of these panels. In the case of Apparel Export Promotion Council vs. Ananya Kumar[3](2016), the Delhi High Court emphasized the need for ICCs to misbehave with the vittles of the POSH Act.
Confidentiality and Victim Protection: Maintaining confidentiality and icing protection for victims during the complaint process is pivotal. In the case of Ruchika Singh Chhabra v. Air France (2017)[4], the Delhi High Court emphasized the duty of the ICC to cover the identity of the victim and maintain confidentiality throughout the proceedings.
Timely and Fair examinations: Conducting prompt and unprejudiced examinations into sexual importunity complaints can be gruelling. In the case of Poonam v. Union of India [5](2017), the Delhi High Court emphasized the need for a fair disquisition to ascertain the veracity of the complaint and recommended the relinquishment of a victim-centric approach.
Employer Liability and Punitive Action: Employers have a responsibility to help sexual importunity and take applicable action against the heckler. In the case of ICICI Bank v. Vinod Kumar[6] (2008), the Supreme Court held that an employer can be held liable for failing to help sexual importunity and directed the employer to pay compensation to the victim. These case laws punctuate the challenges faced during the perpetration of the POSH Act and give precious perceptivity for employers, workers, and ICCs to ensure compliance and effective running of sexual importunity complaints in the plant. It's essential to consult legal experts and stay streamlined with recent developments and interpretations of the law to effectively address the challenges and promote a safe working terrain.
LEGISLATIVE SCHEME
Under the Act, an ‘displeased woman’ is a woman of any age, whether employed or not, contended to have been subordinated to the act of sexual importunity. The delineations of ‘employer’ and ‘workplace’ under the Act are wide enough to cover every possible organisation and plant in the private and public sectors. In Malaika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Ors[7] was also clarified that sexual importunity allegations under the Act are justifiable against an existent of the same gender as well.
The Act authorizations every organisation to constitute at least a four-member IC, of which, one person needs to be the Presiding Officer and one person must be an external member from an anon-governmental organisation, who's familiar with issues relating to sexual importunity and has at least five times of experience in social work. The purpose of the external member is to ensure an independent person is available to help, advise and assist the IC, as clarified by the Supreme Court (“SC”) in Punjab and Sind Bank and Ors. v. Durgesh Kuwar[8]. Further, the Presiding Officer is needed to be a woman working at an elderly position and at least 50 of the IC members should be women.
Still, it's judicious to constitute an IC with five members in order to avoid a situation of a tie/ impasse in case of differences of opinion. It's also judicious to include two external members in the IC, with at least one member having a legal/ judicial background. As per the Rules, the quorum of the IC should be a minimum of three members, including the Presiding Officer. Strangely, there's no obligatory demand for an external member to be present at the IC meeting to constitute the quorum, nor is there a demand for the quorum to have women members in maturity.
There's no clarity in the Act/Rules, whether the IC Report has to be amicable, or on the base of maturity. This is a vital legislative nebulosity which requires immediate explanation. Until the Act/Rules is amended, a view can be taken that the legislative intent cannot be to produce an impasse situation in case of differences of opinion.
The Act gives the IC the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (“CPC”), limited to summoning and product of documents.
As per the Rules, the IC is needed to cleave to the principles of natural justice while making an inquiry. Below are a few principles of natural justice that need to be followed:
a) Rule against bias: In consonance with the principle that ‘no person should be a judge in his own cause’. An IC member should be unprejudiced and shall approach the matter with a free and fair mind. immaculately, a person who's a substantiation or is interested in the complaint in any manner shouldn't be an IC member.
b) Audi alteram partem: Both the plaintiff and the decadent should be given reasonable and fair occasion of being heard, along with due notice of the inquiry.
The principles of natural justice are critical in order to come to a just conclusion, especially when the adjudication is done by a quasi-judicial body. still, in numerous circumstances, the IC members don't have any legal background, and thus, warrant acceptable experience to take over similar inquiries. The Act and the Rules themselves warrant clarity and are not descriptive enough for a reasonable man to carry out quasi-judicial functions.
Hence, it's critical that acceptable training is handed to the IC members – to enable them to properly discharge their liabilities specified under the Act. This demand of training has also been emphasised by the bar time and again (4).
Since the enactment of the Act, the bar has laid down certain important principles, that have backed in the interpretation of the Act and have eased its perpetration.
In Rashi v. Union of India and Another[9], the Delhi HC clarified certain conditions that need to be followed by the IC regarding its constitution and performing:
IC members must be unprejudiced i.e., they shouldn't have any particular knowledge or interest in the case or be connected to the case in any manner;
IC members shouldn't have conflict with any of the parties involved;
IC members ought to retain blemish-less credentials;
An independent person should be someone external and cannot, for illustration, be the panel counsel of a bank where the Complainant and the Respondent are workers of the bank;
There should be no overdue pressure and influence on the IC from elderly situations;
Principles of natural justice should be followed rigorously; and the Vishaka Guidelines should continue to guide the IC and should be followed strictly.
The SC in Delhi University & Anr.v. Bidyug Chakraborty and Ors. reiterated the significance of sequestration of the substantiations ’identity in sexual importunity cases. On the other hand, the Delhi HC in Ashok Kumar Singh v. University of Delhi & Ors. laid down a detailed procedure to allow fair occasion to the decadent to cross-question the substantiations while maintaining their identity non-public. The procedure is as follows:
The decadent should be allowed to cross-question the substantiations of the plaintiff through a questionnaire, which shall be submitted to the IC at the time when they're produced for cross-examination;
The substantiations shall answer the questionnaire in the presence of the IC;
Both the parties shall not be present at the time when the cross-examination of the substantiations of the plaintiff is being recorded;
IC shall endeavour to ensure that the substantiations who are being cross-questioned, doesn't counsel with the substantiations who are yet to be cross-questioned;
IC shall make every bid to supply a dupe of the cross-examination of the suers’ substantiations to the decadent on the same day (of questioning) or at the foremost, in any case before cross-examination of the coming substantiation;
After completion of cross-examination of the suers’ substantiations, the decadent would be permitted to lead defence substantiation. The tardy shall submit the examination- in- chief of the defence substantiations to the IC. clones of the statements of the decadent’s substantiations shall incontinently be made available to the plaintiff;
After completion of the cross-examination of the substantiations of the decadent, parties shall be given a particular hail by the IC.
The IC members aren't anticipated to follow the specialized rules of the CPC and the Indian substantiation Act, 1872 while recording substantiation, or admitting denying documents, since the sexual importunity inquiries aren't rigorously ‘judicial’ in nature. still, the anticipation to follow the principles of natural justice is clear, which implies that there's a duty to act in a fair and reasonable manner.
CONCLUSION
The Act has played an important part in icing that victims have lesser confidence in reporting alleged acts of sexual importunity. Given the fiscal and reputational pitfalls associated with mishandling of complaints under the Act, it's judicious for employers to take all sweats to produce mindfulness about their POSH Policy and to insure its perpetration across the organisation. Organisations must regularly conduct training and mindfulness programs, not only for women workers but also for the IC members.
For effective perpetration of the Act and Rules, it's essential that the IC, being the fulcrum of the Act, is trained and educated with legal knowledge and practices to carry out issues-judicial liabilities. Amending the Act to dictate the appointment of at least one member of the IC with legal background, would be a step in the right direction.
REFERENCES [1] https://indiankanoon.org/doc/1031794 [2]https://www.indiacode.nic.in/handle/123456789/2104?sam_handle=123456789/1362 [3] https://indiankanoon.org/doc/856194/ [4] https://indiankanoon.org/doc/158080828/ [5] https://indiankanoon.org/doc/1930290/ [6] https://indiankanoon.org/doc/46535642/ [7] https://www.legalserviceindia.com/legal/article-8717-case-analysis-dr-malabika-bhattacharjee-v-s-internal-complaints-committee-the-vivekananda.html [8] https://www.livelaw.in/pdf_upload/pdf_upload-371108.pdf [9] https://indiankanoon.org/doc/157949099/