ABOUT THE AUTHOR
This article is written by Anjali Bhasi. She is a 6th semester integrated 5 year B.A LL.B student at Govt Law College, Thiruvananthapuram .She is also an editor trainee of ljrfvoice.com
INTRODUCTION
Vulnerability within the informal sector is not a new dimension in India. The domestic workers being in isolated settings due to the nature of their work can be susceptible to exploitation and harassment. India’s law on sexual harassment at the workplace has failed to account for the informal sector working women. Physical forms of harassment are not only what they face, but verbal, nonverbal, and visual forms too. Home being considered as the safest place, yet sexual harassment being a common phenomenon for them in their job place. 4.2 million of the population constitutes domestic workers, who are largely constituted by women and girls, making 75% of them, according to the National Domestic Workers Movement. 52 million people are employed as domestic workers worldwide, according to the International Labour Office, and 83% are women. Not to forget the fact that they are an illiterate, poverty-stricken, exploited group in the country. Many domestic workers are migrants from other states, including marginalized groups like Dalits and Adivasis.
“Domestic help found hanging in washroom,”, “ minor domestic help beaten with sticks and hot tongs,” “security guard beaten up by residents,” and the list doesn’t end, with unsettling conclusions.
The Posh Act Framework
The Indian constitution guarantees the right to life and personal liberty in article 21 and articles 14, 15, and 19, ensuring every man is under the same law, treated equally, and prohibits any discrimination on the basis of caste, religion, race, sex, place of birth, or any of them, and ensures the fundamental right of freedom. Domestic workers are being deprived of these constitutional remedies. In light of the disastrous incidents, the parliament enacted the Prevention of Sexual Harassment Act 2013.
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act (POSH), 2013, extends its protective umbrella to domestic workers, acknowledging the power dynamics inherent in the employer-employee relationships and seeking to provide a safe and respectful working environment for all, including those who are employed in private households. The POSH act aims to address and prevent instances of sexual harassment faced by domestic workers, ensuring access to redressal mechanisms and support systems. The roots of the act were laid down in Vishaka v. State of Rajasthan (1997), which laid down the guidelines to deal with cases of sexual harassment effectively and fairly.
Considering the unorganized nature of domestic work, it is important to understand what constitutes a ‘workplace.’ A ‘workplace’ under this act means a dwelling place or house. Under section 2(a), in the definition of aggrieved women, any woman employed in a dwelling or a house is specifically recognized. Similarly, ‘Domestic worker’ under Section 2(e) of the act means a woman who is employed to do the household work in any household for remuneration, whether in cash or kind, either directly or through any agency, on a temporary, permanent, part-time, or full-time basis, but does not include any member of the family of the employer. This definition has a wide range of domestic workers, including those working through agencies or on a part-time basis, covered under the act. It acknowledges home as a workplace and that domestic workers are entitled to a safe working environment.
The inclusion of domestic workers under the POSH act is a significant step towards ensuring their rights and dignity are protected. The Act mandates employers to create an environment free from unwelcome physical advances, demands or requests for sexual favors, making sexually coloured remarks, showing pornography, or any other verbal or physical conduct of a sexual nature, which constitutes the different shades of sexual harassment. In Sanchayani Sharma v. National Insurance Company Ltd., the Delhi HC held that sexual harassment need not be physical in nature and can also include verbal or nonverbal conduct. The applicability of the act extends to all women employed in workplaces, whether in formal or informal sectors.
Rights And Protections Available To Domestic Workers
The size of the workplace does not diminish the need for robust safety measures. The maid who works in our home, who does our chores; a driver; and an au pair who performs household chores are all considered domestic workers and are entitled to equal protection as enumerated in Articles 14, 15, and 21 of the constitution. While Vishaka v. State of Rajasthan laid the foundation of the POSH Act, the landmark case Maneka Gandhi v. Union of India ruled the right to live with human dignity, and in Kishor Mohanlal Bhakshi v. Union of India (1961) highlighted the right to get equal pay for equal work, adding to its strong foundation.
- Internal Committee and Local Committee
Apart from these cases, the act itself mandates a mechanism to ensure the rights are not being violated and provide protection to women employed in any workplace. Domestic workers are protected and have the right to seek redressal from the Local Complaints Committee (LC) if they experience any form of sexual harassment in their workplace. The POSH Act mandates the constitution of an Internal Committee (IC) at the institutional level and, at the district level, a Local Committee (LC) for the prevention, prohibition, and redressal of sexual harassment. IC’s purpose is to address complaints of sexual harassment within an organization that employs 10 or more employees. It’s mandatory that such an organization should constitute an IC within.
The LC has its jurisdiction over an entire district to receive complaints of sexual harassment at the workplace with fewer than 10 employees or when the complaint is against the employer and possesses the same powers as a civil court under the Code of Civil Procedure Code, 1908. The LC would conduct inquiries into complaints, recommend actions to the employer and ensure confidality during the proceedings. This expedites the redressal mechanism, requiring the LC to complete the inquiry within 90 days.
- Employer’s liability
An employer under the act means any person who is responsible for the management, supervision, and control of the workplace, and management includes the person or board or committee responsible for the formulation and administration of policies for such an organization. The employer is duty bound to initiate disciplinary action against the officer involved in sexual harassment, as it involves the human dignity of women enshrined under articles 14, 15, and 21 of the constitution, and the inquiry must be fair and reasonable.
The employer under the act has to function under the guidelines that have been provided. As discussed above, the IC has to be set up by them to ensure that aggrieved parties can file their complaints and seek redressal. Further, it mandates that the employer should treat sexual harassment as misconduct and initiate action for the same, as well as focus on prevention of sexual harassment and take preventive measures. Besides these, the employer has to provide a safe working environment at the workplace for the employees, has to display in the workplace the penal consequences of sexual harassment, and has to organize workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the act. They are under an obligation to formulate a policy or charter for prohibition, prevention, and redressal of sexual harassment at the workplace intended to promote gender-sensitive safe spaces. They have to carry out orientation programs and seminars for the members of the Internal Committee. All the members in the LC and IC have to be disclosed also. They have to provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Bharatiya Nyaya Sanhita. The act mandates that the employer has to monitor the timely submission of reports by the IC.
In TheInternal Complaints Committee of Tata Consultancy Services v. Tanuja Priya Bhat, the Bombay High Court ruled that an employer must provide a safe working environment, free from sexual harassment, and that the employer is responsible for ensuring that the IC is constituted and functions effectively.
Challenges And Limitations in Implementation
Despite the protection that the act mandates, several challenges hinder its effective implementation for domestic workers. One significant issue is the lack of awareness among domestic workers regarding their rights and available redressal mechanisms. Being uneducated and uninformed, it’s difficult for many domestic workers to navigate the legal system and file complaints. The act’s implementation is also inconsistent, with a survey indicating that only a fraction of districts in the country have set up Local Committees. The Local Committee receives complaints of sexual harassment from establishments where the Internal Complaints Committee has not been constituted due to having less than 10 workers or if the complaint is against the employer.
Adding up to the pile, the fear of retaliation and loss of livelihood often deters domestic workers from reporting incidents of sexual harassment. Domestic work is largely informal, with many workers lacking formal contracts or proof of employment. This informality leads to several challenges. Firstly, it becomes difficult for domestic workers to prove their employment, which is a prerequisite for filing a complaint under the POSH act. Secondly, many domestic workers are unaware of their rights and the existence of redressal mechanisms.
A study by Maratha Farwell Foundation’s rapid survey on domestic workers in Delhi found that many domestic workers had not even heard of these panels. Information about them was found on the internet too. This shows the absence of a proactive approach on the part of local committees. Under the purview of the law, they are not merely intended to be redressal committees but also bodies that take actions for the prevention of sexual harassment. This was clarified after the 2016 amendment; the Local Complaints Committee was renamed the Local Committee to indicate that it’s also a preventive forum.
Another challenge that robustly affects its effectiveness is that the law does not take into account the multiple marginalizations of the informal sector women workers in the process of complaint and inquiry. The process by which the informal sector workers register a complaint with the informal Local Committee is similar to how the Internal Committees function. This ignores the specific hurdles that marginalized working women face in reporting harassment.
Apart from a lack of clear proof of employment, Section 9 of the act mandates that any complaint of harassment has to be reported within 3 months. However, the Committee is allowed to accept complaints even after the period. Due to this, the committees do not interpret the provision to account for the marginalized condition of informal sector workers as a reason for delays in filling complaints. Section 12 mandates that during the pendency of the complaint, as an interim measure, an aggrieved woman may be provided some immediate relief, such as a three months leave or transfer to another branch so that she is not victimized further. Hence, there is a structure of leave and that the establishment has different branches. However, this may not be the case in the informal sector. Similarly, under section 14, action can be taken against false complaints or malicious complaints. This makes the unorganized sector workers particularly vulnerable because they may fear retaliation from their dominant employers.
A way forward
Since the POSH Act does not adequately cover domestic workers, leaving them vulnerable to sexual harassment with limited avenues for redressal.
To address this, the act should be amended to ensure their inclusion and strengthen LC for accessible redressal. Employers should be required to register domestic workers, promoting accountability and awareness.
Additionally, free legal aid, helplines, and NGO support must be provided to assist victims in filing complaints.
Confidentiality measures and protection mechanisms should be enforced to encourage reporting without fear of job loss or retaliation.
Residents Welfare Associations and housing societies can establish grievance mechanisms to offer immediate support.
Regular data collection and monitoring of cases will aid in effective policy implementation. A combined effect of legal reforms, community involvement, and strict enforcement will help uphold the rights of domestic workers, ensuring safer workplaces and justice for victims of
