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Reason for Low POSH Compliance in India

Abstract

Harassment with women at the workplace, whether physically or verbally, is very common in India. There have been several instances where women have faced abusive behaviour from co-workers or even from her employer due to which there is lack of women representation in employment. As we know, contribution made by female is very important for the growth of society but still, they face various challenges like pay disparity, sexual harassment, lack of equal opportunities etc. In 2013, Government of India passed the POSH act to prevent and prohibit the harassment of women at the workplace and also provide them with a redressal option. In this article, we are mainly talking about reasons behind low POSH compliance in India.


What is the POSH Act?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act[1], commonly known as the POSH Act, was passed in 2013 by the parliament. This act has been implemented to prevent and protect women from sexual harassment at the workplace and thereby ensure a safe working environment for women. It gave legislative backing to Vishakha guidelines which was passed by the apex court in the case Vishakha and others vs. State of Rajasthan[2]. The Act provides a legal framework to protect employees from any sexual harassment in the workplace. It also outlines the procedures to be followed when filing a complaint and the responsibilities of the employer as it is his or her duty to provide a safe working environment at the workplace which shall include safety from persons coming into contact at the workplace[3]. The POSH Act has been a major step forward in creating a more equitable and just workplace environment, free from discrimination or harassment. This act directs the employer to set up an Internal Complaints Committee (ICC)[4] in their organisation which has 10 or more employees to address the complaints of harassment. It has to be headed by a women employee and at least have two women employees other than the chairperson[5]. It is also necessary to have an NGO with five experiences in the committee to prevent any undue pressure from the seniors[6]. Under this act, if an employee faces “any one or more” of the following behaviour i.e., physical contact and advance, a demand or request for sexual favours, sexually coloured remarks, showing pornography, any other unwelcome physical or verbal or non-verbal conduct of sexual nature, then, she can file a complaint to Internal Complaints Committee (ICC) regarding it within three to six months which can be extended by committee[7].


History

Sexual harassment at the workplace is widespread and has been continuing since long time before any law was enacted like in case Tuka Ram and Ano. vs State of Maharashtra[8] where victim was raped by two police officers at police station. In India, the framework for the Sexual Harassment at Workplace law was laid down in the landmark judgement of the Supreme Court in Vishaka v. State of Rajasthan[9], before that, there was no law to protect women from sexual harassment.

In 1992, Bhanwari Devi, a Dalit woman who was a social worker employed with the Rural Development Program of the Government of Rajasthan was gang raped. This highlighted the extents of sexual harassment incidents in India’s workplaces. It struck a chord with the nation and revealed the hazards working women face in the workplace. The Supreme Court framed guidelines and issued directions to the Union of India for a law to combat workplace sexual harassment.

The main intention of these guidelines was to provide a platform for redressal and grievance mechanisms against workplace sexual harassment. It was these guidelines that motivated the formation of the act. The POSH bill was introduced by women and child development minister Krishna Tirath in 2007 and then it went through several amendments. Finally the union cabinet approved the bill and it was tabled in Lok Sabha on December 7, 2010 and again referred to the Parliamentary Standing Committee on Human Resources Development. The committee's report was published on 30 November 2011. In May 2012, the Union Cabinet approved an amendment to include domestic workers. The amended Bill was finally passed by the Lok Sabha on 3 September 2012. The Bill was passed by the Rajya Sabha on 26 February 2013. It received the assent of the President of India and was published in the Gazette of India.


Reason for Low POSH Compliance

After almost ten years since its inception, various loopholes have arisen due to which there is low compliance of this act. The apex court also has flagged serious lapses in the implementation of this ten-year-old act[10]. Some serious shortcomings of this act have been detailed below:


Fear of Retaliation

Women tend to refrain from reporting incidences of workplace harassment in fear of retaliation by the harasser or the organisation. Most feel that raising their voice against the perpetrator may lead to social stigma, embarrassment and even further harassment. This gives an opportunity to harasser who can be a co-worker or employer to take advantage of the woman. The Act is silent on the aspect of preventing such retaliation. However, in the case Apparel Export Promotion Council v. A.K Chopra[11] the Supreme Court upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee.


Gender Neutrality

This act only provides protection to women at the workplace which eliminates any opportunity for the redressal of complaints raised by men or LGBTQ+ individuals. This inherent bias is not a bad thing considering the situation in India but such law propagates the old age stereotype of a male harasser, which is contrary to the idea of equality at the workplace. It is also interesting to note that the Act has allowed for perpetrators of sexual harassment to be either male or female, which lends credence to the idea of a gender-neutral law. Therefore, it is necessary to make gender neutral law where both men and women can raise their voice against harassment.


Lack of Awareness

Awareness is the greatest agent for change. Without necessary awareness, change is not possible but mostly people are aware about their rights and keep on taking shit from other people, same with the women at the work who are not aware about laws related to harassment and people keep on harassing them due to unawareness. Section 19(c)[12] of the Act says employer has to organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the act and orientation programmes for the members of the Internal Committee to spread awareness about the act.


Lack of Redressal System

Recently, 16 of the 30 national sports federations don’t have an Internal Complaints Committee which was mandated by Section 4(1)[13] of the act. Redressal mechanism i.e., ICC or LCC is utmost important through which a woman can file a complaint and seek remedies. Without proper mechanism, there can be ignorance of complaints received which is a big issue because it takes a lot of courage for a woman to file a complaint against any person as, sometimes, her own family will not be in support to file the complaint. It is important to have an up-to-date organisation where ICC can easily set up to provide remedies to victims. In case Medha Kotwal Lele & Ors. V. Union of India & Ors[14]. Petitioner highlight that guidelines were not effectively followed and implemented but SC dismissed the petition.


Limited Recourse for the Informal Sector

A study published by Human Rights Watch[15] extensively lists out how the Act has failed women in the informal sector. According to the report, these employees like domestic workers, factory workers, agricultural workers etc., face trivial incidence of harassment at their workplace. This is especially disheartening considering that the Act has made provisions to accommodate for complaints made by women working in the informal sector. The State Government, though its district officer or collector is required to form a local committee at the district level or the block level that will deal with such complaints, collector is required to form a local committee at the district level or the block level that will deal with such complaints.


Procedural and Technical Drawbacks of the Act

There are certain drawbacks in this act like a woman has to complain within a period of three months from the date of incident, according to Section 9[16] of prescribed act, this period can only be extended if the committee is convinced. This act also fails to provide for an option to make anonymous complaints. These provisions create an uneasy atmosphere that does not sufficiently accommodate for the gravity of the instances of sexual harassment. Therefore, it is the need of the hour for these technicalities to be addressed to be made more lenient. The Bench in the case of the famous MJ Akbar v. Priya Ramani defamation case held that Woman has the right to put up the grievance at any platform of her choice even after decades.


Way Forward

To reduce the low POSH compliance, companies in India take some necessary steps like First, to set up an Internal Complaint Committee. Secondly, proper documentation i.e., to frame POSH policy, POSH annual report etc. Thirdly, Companies must create awareness about workplace sexual harassment with POSH training for employees. Invest in training on employee rights, appropriate workplace conduct, employer duties, and complaint redressal mechanism to create a safe workplace., It should also conduct training sessions for the ICC member from time to time. Fourthly, there should be a neutral member in the committee for fair handling of complaints and unbiased decisions. So, these are certain steps which need to be taken as “Creating a safe working environment increases employee productivity.”


References [1]The Sexual Harassment of Women at Workplace Act, 2013, No. 14, Acts of Parliament, 2013 (India) [2] Vishakha and others vs. State of Rajasthan, AIR 1997 SC 3011 [3] The Sexual Harassment of Women at Workplace Act, 2013, § 19(1) No. 14, Acts of Parliament, 2013 (India) [4]The Sexual Harassment of Women at Workplace Act, 2013, § 4(1) No. 14, Acts of Parliament, 2013 (India) [5] The Sexual Harassment of Women at Workplace Act, 2013, § 4(2)(a) No. 14, Acts of Parliament, 2013 (India) [6] The Sexual Harassment of Women at Workplace Act, 2013, § 4(2)(c) No. 14, Acts of Parliament, 2013 (India) [7] The Sexual Harassment of Women at Workplace Act, 2013, § 9 (1) No. 14, Acts of Parliament, 2013 (India) [8] Tuka Ram and Ano. vs State of Maharashtra, AIR 1979 SC 185 [9] Supra, note 2 [10]DIKSHA MUNJAL, what is the POSH Act and why has the Supreme Court flagged lapses in its implementation, THE HINDU (available at https://www.thehindu.com/news/national/explained-the-indian-law-on-sexual-harassment-in-the-workplace/article66854968.ece June 9, 2023 0540 hours) [11] case Apparel Export Promotion Council v. A.K Chopra, AIR 1999 SC 625 [12] The Sexual Harassment of Women at Workplace Act, 2013, § 19(c) No. 14, Acts of Parliament, 2013 (India) [13] Supra, note 4 [14] Medha Kotwal Lele & Ors. V. Union of India & Ors, AIR 201 SC 93 [15] Human Rights Watch, https://www.hrw.org/sites/default/files/media_2020/10/india1020_web.pdf, (visited on June, 9 2023 10:20 hours) [16] Supra, note 7

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