POSH: RECOMMENDATIONS AND REFORMS
Introduction
POSH Act means Prevention of Offences against Sexual Harassment. To prevent women against sexual harrasment at workplace. They were implemented in Vishakha guidelines. The Court has considered Constitution provision Article 15 (Protection of discrimination against religion, caste, class, race, birth), various international conversation such as the Convention on the elimination of all forms of discrimination against women “CEDAW” ratified in India in 1993. Several amendments have been made till now. Protection of women against sexual harrasment at workplace Bill has been introduced by Krishna Tirath (Women and Child Development Minister) in 2007. The amendment bill came into force on December 9, 2013 as Prevention of women against Sexual Harrasment at Workplace (Protection, Prohibition, Redressal) or POSH Act.[1]
Background
Bhanvari Devi, a social worker at the women development project of Rajasthan Government, was gang raped by five persons in 1992 after she tried to prevent the marriage of one-year-old girl. POSH Act passed by the Parliament. JS Verma committee was set up after Nirbhaya incident, 2012 by Supreme Court for criminal law modifications for ensuring gender justice. A three-member committee of former Supreme Court judge J.S. Verma recommended changes in criminal law in India for more quick and harsh punishment for sexual Act offeders. Justice Leila Seth, a former High Court judge, and Gopal Subramanium, a former Solicitor General of India, were the other members of the Committee.[2]
Protection Of Women Against Sexual Harassment At Workplace Act, 2013[3]
The Act defines Sexual Harassment and procedure for Redressal of Complaints and safeguards for women.against malicious and false charges.
Every Employer is required to form an Internal Complaints Committee with ten or more persons at the office at each department and branches.
Committee has power as Civil Court to gather evidences .
Committee is required to provide Conciliation if asked by Complainant before initiating the complaint.
Penalties has been prescribed for employer. Non compliance with the provisions of the Act would lead to payment of fine
Repeation of offences would lead to higher penalties and cancellation of licence or registration of company.
JS Verma committee recommendation on sexual harassment at workplace
It recommended to set up employment tribunal instead of Internal Complaints Committee (ICC).
Committee proposed for the speedy disposal that the matter should be dealt with in its own way rather as a civil case.
Internal committee is counterproductive in dealing with such complaints in-house as discharging its functions for women.
Domestic workers should be included in the purview of the Act
Committee termed Sexual Harassment Act as ’Unsatisfactory’ and not in accordance with Vishakha Guidelines made by Supreme Court in 1997.
Any ‘Unwelcome Behaviour’ should be seen as subjective to the complaint, thus broadening the scope of Sexual Harassment.
Verma Committee Held an employer should be liable if-[4]
Ø He /She facilitated sexual harassment.
Ø Permitted environment where sexual harassment can be done
Ø Employer fails to disclose to the employee the Company’s rule on sexual harassment and the way in which the complaint can be filed.
Ø Fails to forward the complaint to the tribunal.
Ø Company is liable to pay compensation to the Complainant.
Penal opposed penalizing women for false complaints as it will nullify the act.
Time limit of three months should be given to the Complainant to file the complaint and should not be moved without her consent.[5]
Recommendation on Laws
The committee has submitted its report on 23 January, 2013. It made recommendations on rape, trafficking, sexual harassment, medical examination of victims, child sexual abuse, police, electoral and educational reforms. We summarise the key recommendations of the Committee.
1. Rape
Recommendations on gradation of sexual offences should be retained in Indian Penal Code 1860
The Committee was of the view that rape and sexual assault are not merely crimes of passion but an expression of power. Rape should be retained as a separate offence and it should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be included in the definition of rape.
Marital rape exception should be removed. Marriage is irrevocable consent to sexual assault.Relationship between accused and victims is irrelevant.
2. Sexual assault
Currently, “assault or use of criminal force to a woman with the intent to outrage her modesty” is punishable under Section 354 of the IPC with 2 years imprisonment. The term outraging the modesty of a woman is not defined in the IPC. Thus, where penetration cannot be proved, the offence is categorized as defined under Section 354 of the IPC.
The Committee recommended that non-penetrative forms of sexual contact should be regarded as sexual assault. The offence of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature. The sexual nature of an act should be determined on the basis of the circumstances. Sexual gratification as a motive for the act should not be prerequisite for proving the offence. The offence should be punishable with 5 years of imprisonment, or fine, or both.
Use of criminal force to disrobe a woman should be punishable with 3 to 7 years of imprisonment.
3. Verbal Sexual Assault
At present, use of words or gestures to “insult a woman’s modesty” is punishable with 1 year of imprisonment or fine or both under Section 509 of the IPC. This section should be repealed. The Committee has suggested that use of words, acts or gestures that create an unwelcome threat of a sexual nature should be termed as sexual assault and be punishable for 1 year imprisonment or fine or both.
4. Sexual Harrasment
Some of the key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 that is pending in Parliament are provided below:
Domestic worker should be included in the purview of the bill
Complainant and respondent are required to attempt Conciliation. This is contrary to the Supreme Court judgment in Vishakha vs. State of Rajasthan which aimed to secure a safe workplace to women.
Employer is required to pay compensation to the victim.
Employment tribunal to receive and adjudicate all complaints. Internal Complaints Committee should be instituted to file the complaint.[6]
5. Acid Attack
The Committee opined that the offence should not be clubbed under the provisions of grievous hurt which is punishable with 7 years imprisonment under the IPC. It noted that the offence was addressed in the Criminal Laws Amendment Bill, 2012 which is currently pending in Parliament. The Bill prescribes a punishment of imprisonment for 10 years or life. It recommended that the central and state government create a corpus to compensate victims of crimes against women.
6. Offences against women in conflict areas
The continuance of Armed Forces (Special Powers) Act (AFSPA) in conflict areas needs to be revisited. At present, the AFSPA requires a sanction by the central government for initiating prosecution against armed forces personnel. The Committee has recommended that the requirement of sanction for prosecution of armed forces personnel should be specifically excluded when a sexual offence is alleged. Complainants of sexual violence must be afforded witness protection. Special commissioners should be appointed in conflict areas to monitor and prosecute for sexual offences. Training of armed personnel should be reoriented to emphasise strict observance of orders in this regard by armed personnel.
7. Trafficking
The Committee noted that the Immoral Trafficking Prevention Act, 1956 did not define trafficking comprehensively since it only criminalised trafficking for the purpose of prostitution. It recommended that the provisions of the IPC on slavery be amended to criminalise trafficking by threat, force or inducement. It also recommended criminalising employment of a trafficked person. The juvenile and women protective homes should be placed under the legal guardianship of High Courts and steps should be taken to reintegrate the victims into society.
8. Child sexual abuse
The Committee has recommended that the terms ‘harm’ and ‘health’ be defined under the Juvenile Justice Act, 2000 to include mental and physical harm and health, respectively, of the juvenile.
9. Punishment for crimes against women
The Committee rejected the proposal for chemical castration as it fails to treat the social foundations of rape. It opined that death penalty should not be awarded for the offence of rape as there was considerable evidence that death penalty was not a deterrence to serious crimes. It recommended life imprisonment for rape.
10. Medical examination of a rape victim
The Committee has recommended the discontinuation of the two-finger test which is conducted to determine the laxity of the vaginal muscles. The Supreme Court has through various judgments held that the two-finger test must not be conducted and that the previous sexual experience of the victim should not be relied upon for determining the consent or quality of consent given by the victim.
11. Police reforms
The Committee has recommended certain steps to reform the police. These include establishment of State Security Commissions to ensure that state governments do not exercise influence on the state police. Such Commissions should be headed by the Chief Minister or the Home Minister of the state. The Commission would lay down broad policy guidelines so that the Police acts according to the law. A Police Establishment Board should be established to decide all transfers, postings and promotions of officers. Director General of Police and Inspector General of Police should have a minimum tenure of 2 years.
12. Reforms in management of cases related to crime against women[7]
A Rape Crisis Cell should be set up. The Cell should be immediately notified when an FIR in relation to sexual assault is made. The Cell must provide legal assistance to the victim.
All police stations should have CCTVs at the entrance and in the questioning room.
A complainant should be able to file FIRs online.
Police officers should be duty bound to assist victims of sexual offences irrespective of the crime’s jurisdiction.
Members of the public who help the victims should not be treated as wrong doers.
The police should be trained to deal with sexual offences appropriately.
Number of police personnel should be increased. Community policing should be developed by providing training to volunteers.
13. Electoral reforms
The Committee recommended the amendment of the Representation of People Act, 1951. Currently, the Act provides for disqualification of candidates for crimes related to terrorism, untouchability, secularism, fairness of elections, sati and dowry. The Committee was of the opinion that filing of charge sheet and cognizance by the Court was sufficient for disqualification of a candidate under the Act. It further recommended that candidates should be disqualified for committing sexual offences.
14. Education reforms
The Committee has recommended that children’s experiences should not be gendered. It has recommended that sexuality education should be imparted to children. Adult literacy programs are necessary for gender empowerment.
Conclusion
Offences against women were increasing day by day so it is very necessary to make new laws as the society is dynamic and ever-changing in nature. With the increase in women at workplace it is important to make new laws. This act has been amended a lot of time and made it more efficient act and protect women against sexual harassment. So, women should be protected as due to these activities lead to fear in mind of people and women were not allowed to go to work by families. These offences should be punishable with harsh punishment so the offenders should be scared as they will not do the act again.
References [1] The Hindu “October,14,2018” (2013 Justice Verma panel report wanted changes to sexual harassment law) [2] Ready Reckoner by Anupama V [3] Deepa Rafeeque Prevention of Sexual Harassment against women at workplace. [4] Sundeep Puri” Bharat A Commentary against sexual harrasment of women at workplace act,2013. [5] Swati Saksena Jha & Dr. Amitava Gosh “Safe Workplace” [6] Bare Act sexual harassment of women at Workplace (Protection Prohibition, Redressal) Act,2013 [7] Sexual harassment and sexual offences harassment’Laxmann’