The PoSH Act: The Indian law on sexual harassment in the workplace

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, which was enacted in 2013, aims to address sexual harassment at the workplace.
However, the Supreme Court of India has highlighted lapses and uncertainty in its implementation.
The court has directed government bodies to verify the formation of Internal Complaint Committees and ensure their composition aligns with the Act.

The Law Against Sexual Harassment

Precursor to the Law

1990s Economic Opening: India’s economic liberalization in the early 1990s led to an increased female workforce.
Landmark Vishaka Judgment (1997): Vishaka, an NGO, filed a PIL following the alleged gang rape of Bhanwari Devi in Rajasthan, leading to a Supreme Court judgment.
Guidelines: The Vishaka Judgment mandated that all employers establish mechanisms to address workplace sexual harassment and uphold gender equality for working women.
UN Convention Ratification (1993): India ratified the UN Convention on Elimination of All Forms of Discrimination against Women, which emphasized eliminating discrimination in employment for women.
Sexual Harassment Law (2013): The Indian Parliament passed a law in 2013 for the prevention of sexual harassment in workplaces, addressing a long-pending need.

The Objective of the New Law

The New Law aims to protect women from sexual harassment at workplaces and address related complaints.
Sexual harassment is viewed as a breach of a woman’s fundamental rights, including equality under Articles 14 and 15 of the Indian Constitution.
It also infringes upon her right to live with dignity, as per Article 21 of the Constitution.
Considering sexual harassment as a violation of the right to practice any occupation, trade, or business under Article 19(1)(g) encompasses the right to a harassment-free environment.

What constitutes Sexual Harassment at Workplace?

Circumstances involving promises (implied or explicit) of preferential treatment in employment.
Threats of detrimental treatment in the workplace.
Threats regarding current or future employment.
Creating an intimidating, offensive, or hostile work environment, or interference with work.
Humiliating treatment that may impact a female employee’s health or safety.
Unwelcome sexually determined behavior (direct or implied), including physical contact, advances, demands for sexual favors, sexually colored remarks, and displaying pornography.
Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.

Who, where, and what is impacted by the new law?

The New Law extends its coverage to include places employees visit during employment-related activities, such as commuting using employer-provided transportation. It encompasses various categories of women under the Sexual Harassment Act.

The Internal Complaints Committee (ICC) and Local Committees (LC):

The law mandates employers with over 10 employees to establish an ICC for formal sexual harassment complaints by women.
The ICC composition mandates a minimum of four members, with at least half being women:
- Presiding Officer: Must be a woman holding a senior position at the workplace.
- Two Members: Selected from employees with experience in social work or legal expertise.
- One “External Member”: Chosen from NGOs to ensure independence and prevent undue influence from senior management.
The Act requires every district to establish a LC for women’s complaints in small firms and the informal sector, including domestic workers.

Role of ICCs and LCs:

Both bodies conduct inquiries following the POSH Act and adhere to the “principles of natural justice.”
A woman can file a written complaint within three to six months of the incident.
Resolution options include conciliation between complainant and respondent (non-financial) or an inquiry with appropriate action.

Duties of the Employer:

Annual Audit Report: Employers must submit an annual audit report to the district officer detailing the sexual harassment complaints filed and actions taken.
Workshops and Awareness Programs: Employers are obligated to organize regular workshops and awareness programs to educate employees about the Act. They should also conduct orientation and programs for ICC (Internal Complaints Committee) members.
Penalties for Non-compliance: Failure to establish an ICC or non-compliance with any provision results in fines of up to ₹50,000, with increased penalties for repeat offenses.

The Hurdles to the Act’s Implementation:

Inaccessible Law for Informal Sector: Women workers in the informal sector, where over 80% of India’s female workforce is employed, largely find the law inaccessible.
Underreporting Issues: Due to power dynamics, fear of professional consequences, and the lack of concrete evidence, underreporting is prevalent.
ICCs’ Constitutional Gaps: Sixteen out of the country’s 30 national sports federations had not yet established Internal Complaint Committees (ICCs).
Improper ICC Composition: Many ICCs either had an insufficient number of members or lacked a mandatory external representative.
Legal Clarity Deficiency: Lack of clarity in the law regarding how to conduct such inquiries and insufficient awareness among female employees about where to seek help in cases of harassment.

Reasons behind these Hurdles:

Accountability Concerns: The Act lacks clarity on responsibility for ensuring workplace compliance and identifying liable parties for non-compliance.
Absence of Centralized Data: The government lacks a centralized repository for tracking cases of workplace harassment against women.

Conclusion

The POSH Act, which is over half a decade old now, is indisputably protecting many working women in India from workplace sexual harassment. It not only strengthens and gives confidence to female employees but also plays a major role in widespread removal of such incidents in India. This law has empowered women and has been a platform for them to voice their concerns. In the future, the aim should be to completely eradicate such instances and bring about a safespace in workplaces.