India is a democratic Country and the Constitution of India was adopted on 26th January 1950, as a Supreme Legislation. This Legislation covers all those rights and duties which every individual must be given. It also contains the provision regarding gender equality means both men and women should be treated equally and there shouldn’t be any racial discrimination on the basis of caste, creed, race and sex. While comparing these to the modern workplace scenario, we find that these things are not shown. It seems that these types of equality are limited only up to the Constitution of India, it does not prevail over the modern workplace. We have legislation regarding the prohibition of sexual harassment against women but it lacks other communities which include sexual harassment against men and other communities from LGBTQIA+ at the workplace. In this blog, we will cover does there is a need to revisit POSH Act.
The Parliament of India passed a Legislation in India in the year 2013 named as Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This is a heart-welcoming approach done by the legislature to pass this Act for the prevention of sexual harassment against women at workplace. Although before this, as per the Indian Penal Code, 1860, sexual harassment is covered under Sections 354, 354A, 509 as a criminal offence. There are lots of pressure on the complainant to lodge this type of Criminal Complaint against her co-workers for Sexual Harassment. Due to this pressure, most of the cases are not filed. Section 3 of the Act mandated that no woman should be subjected to sexual harassment in any workplace. When we are talking about this act we find that it is quite comprehensive and covers all types of harassment that a woman feels at the workplace and also as per this Act, to solve these types of harassment, a non-biased and impartial body is established which has been given the power to conduct a proper investigation into the issues related to harassment faced by any employee.
However, as with any other legislation, there have been several red flags that have been raised in this statute. In this blog, we shall look into all the concerns and critically analyse them to find out whether the statute has any room for improvement or whether it requires a comprehensive overhaul.
Is the POSH Act Gender Neutral?
The main issue that we see is that this Act covers only sexual harassment against women. We see that the legislation is not applicable to the other communities likewise male and Other Communities of LGBTQIA+. This has been giving rise to gender inequality. When we are looking at the modern workplace, it covers men, women and other communities of LGBTQIA+. We found all of them working together at a single workplace now a day very easily. As we know that the Indian Penal Code has declared Sexual Harassment as a criminal offence. Sections 354, 354A and 509 talk about sexual harassment and insulting the modesty of women. When we are in depth doing research about this Legislation we come to know that it does not cover any types of Sexual Harassment against men and other communities. Articles 14, 15,19 of the Constitution of India talk about gender equality. It says that everybody should be treated equally and there should not be any discrimination on the basis of gender, caste, race, sex and creed. During a recent NHRDN Survey, which took place among 424 participants of all gender, 50% of the respondent faced physical harassment, while 78% of respondents had faced virtual harassment, such as being asked personal questions. Such a mass number of people are facing this.
Anonymity of Complaint- A Requirement?
Whensoever we are looking at Section 9 of the act we say that a complaint in writing is being filed by any aggrieved woman within the time period of three months from the date of happening of the incident to the internal complaint committee or local bodies (if internal complaint committee has not been established). In a case where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section. As per this Section, we see that the complaint should be filed in writing if the case of sexual harassment occurs against any woman at the workplace. But what we generally see is that in most of the cases due to avoid of stigma or pressure in most of the cases, the complaint has not been filed by them. They remain silent even after her sexual harassment.
Is the POSH Act grounded in the reality of small businesses?
This Act states that at every workplace there should be an establishment of an Internal Complaint Committee having 10 or more employees For a workplace having less than 10 employees the complaint has been filed to local bodies which are constituted at district levels. Section 6 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides:
Every District Officer shall constitute in the district concerned, a committee to be known as the Local Committee to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.
The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Committee within a period of seven days.
The jurisdiction of the Local Committee shall extend to the areas of the district where it is constituted.
While looking at this section we see that the POSH Act focuses on setting up of an Internal Complaint Committee for any business having more than 10 employees. Business entities having less than 10 employees are generally startups and 9 out of 10 start-up falls.
The parliament has enacted the legislation named as Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It is a welcoming step done by the legislature. But we see that in this Act there are so many loopholes, which require revisiting the Act. It does not cover any Sexual Harassment against men and other communities of LGBTQIA+ groups. A Legislation must be passed which covers all of these too. Our Indian constitution provides Equality before law, and prohibition of any discrimination whereas this act only covers female workmen. This has given rise to gender inequality. There must be uniform legislation which covers sexual harassment against any individual at workplace.