About The Author
This article is written by Kezia John. She is a final year B.Com LL.B student at Government Law College, Ernakulam.
Introduction
Sexual harassment at the workplace is a serious violation of fundamental rights, including the right to equality, dignity, and a safe working environment. It involves serious health, human, economic and social costs, which manifests themselves in the overall development indices of a nation. Protection against sexual harassment and right to work with dignity are universally accepted human rights. The Indian constitution also guarantees protection from gender discrimination and the right to practice any profession or to carry on occupation, trade or business. Judicial interpretations have played a significant role in shaping laws and policies related to workplace harassment. Judiciary has expanded the scope of the POSH Act to a more practical sense by interpreting it in a wider sense through case laws and thereby implementing the Act effectively.
History of POSH Act
The history of POSH Act goes back to 1992 when a government social worker in Rajasthan, named Bhanwari Devi, was gang-raped while trying to prevent child marriage of a 1 year old. At that time there was no specific law for workplace sexual harassment. A PIL was filed by Vishaka in the Supreme Court under Articles 14, 15, 19, and 21 1. Noting the absence of any statute enacted to provide for effective enforcement of the basic human right of gender equality and guarantee against sexual abuse, particularly against sexual harassment at workplaces, the Supreme Court laid down a set of Guidelines and norms with a direction that they would be strictly adhered to at all workplaces and shall be binding and enforceable in law till the vacuum was filled and a legislation was enacted to occupy the field. These legally binding guidelines known as Vishaka Guidelines defines Sexual Harassment, made employers responsible for the safe work environment and directed to create ICC in the institutions as redressal mechanisms.
Case laws under Vishaka Guidelines
The Vishaka Guidelines which formed the foundation or genesis of the sexual Harassment laws were followed by the Courts for more than a decade and it remained in force until the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 was enacted. So the courts relied on the Vishaka Guidelines, which was the guidance from the Supreme Court, for deciding issues related to sexual harassment at workplace.
Notably, in Apparel Export Promotion Council v. A.K. Chopra 2, a matter related to sexual harassment at the workplace where the respondent was removed from service on the ground that he had tried to molest a lady employee, the Supreme Court had set aside the order of the High Court that had narrowly interpreted the expression “sexual harassment” and ruled that physical contact is not necessary to constitute sexual harassment and the accused’s termination was upheld. This case affirmed Vishaka guidelines and upheld that even an attempt to outrage the modesty of a woman or inappropriate behaviour that violates a woman’s dignity constitutes sexual harassment. This case actually expanded the definition of sexual harassment beyond physical acts and reinforced that verbal, non-verbal, and suggestive acts also qualify as workplace harassment. So physical contact is not a prerequisite for an act to be considered sexual harassment.
From the above case what constitutes sexual harassment is solved, so then the next question is what workplace is and whether Workplace includes the residing place of women? The Delhi Central Administrative Tribunal laid down a test to determine a particular place is work place or not in Saurabh Kumar Mallick v. Comptroller & Auditor Gen. of India 3 where accused argue that the alleged misconduct occurred in the official mess where the Complainant resides and hence not a workplace Harassment. The test includes proximity and management’s control over the place and whether it is an extension or contiguous part of working place. The tribunal concluded that the Workplace is not limited to the four walls of an office instead it extends to the work related settings. This judgment expanded the scope of workplace, so sexual harassment can occur outside office premises and hence expanded employers’ liability for harassment beyond workplace boundaries but the tribunal also added that this test is only a General Guideline and not a determinative factor.
Even after fifteen years of Vishaka judgement many women still struggle to protect their basic rights at workplace due to the lack of implementation. A follow-up on the directions issued to the Union of India and the States in Vishaka case was undertaken in the Medha Kotwal Lele v. Union of India4 where a grievance was raised by several petitioners that the Complaints Committees directed to be constituted in terms of the Vishaka Guidelines, had not been established to deal with cases of sexual harassment. Treating the said petition as a public interest litigation, the Court directed all workplaces, including government departments, to constitute ICCs. It also ordered state governments and the National Commission for Women to ensure proper implementation. This judgment strengthened enforcement of existing guidelines and played a crucial role in pushing for the implementation of the guidelines in institutions.
Enactment of the POSH Act and Rules
After the passage of fifteen years from the date of Vishaka verdict, the POSH Act, was legislated on 22-4-2013 and finally notified on 9-12-2013. The Act lays down a comprehensive mechanism for constitution of Internal Complaints Committee, Local Committee and Internal Committees, the manner of conducting an inquiry into a complaint received, duties of an employer, duties and powers of the District Officer and others, penalties for non-compliance of the provisions of the Act, etc. Accompanying the Act are the 2013 Rules which lays down the manner in which an inquiry into a complaint of sexual harassment ought to be conducted (Rule 7), the interim reliefs that can be extended to the aggrieved women during the pendency of the inquiry (Rule 8), the manner of taking action for sexual harassment (Rule 9), etc.
ICC under the POSH Act
The complaints of workplace sexual harassment are enquired by the Local Complaint Committee (LCC) in case of unorganised workplace where more than 10 workers exist. For organised sector, having more than 10 workers, there is Internal Complaint Committee (ICC). The constitution of ICC is such that the external member in the committee should be a member of an NGO or association or a person who has an experience in dealing the matters related to sexual harassment. The reason behind this is the principle that ‘No one shall be a judge in his own case’ and hence the external member from the NGO should be a nonbiased and impartial person for the complainant women to feel safety and fairness. If all the members of the ICC are of the workplace then there is an inbuilt bias towards the workplace hence the external member should be independent and an expert in dealing sexual harassment matters.
In Ruchika Singh Chhabra v. Air France India5 the appellant a former employee of the respondent Air France India, alleged that she had been sexually harassed by another employee and lodged a complaint with the Internal Committee of the respondent. She contended that the constitution of the ICC was contrary to the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act and Rules, 2013 as the external member was not associated with any non-governmental organization and his qualifications were not informed to her even after her continuous emails seeking his affiliation with the respondent. Court declared the appointment of external member as invalid and asked to reconstitute ICC incompliance with the law and to start a fresh enquiry if the appellant case. Similary in Punjab & Sind Bank v. Durgesh Kuwar6 it was held that there was a fundamental defect in the constitution of the ICC as the external member on the ICC was found not to be an independent third party in accordance with the provisions of Section 4(2)(c) of the POSH Act. In this case, it was noted that the external member on the ICC was appearing on behalf of the employer (bank) as a panel lawyer and was therefore not independent. In this context, the Court observed that the purpose of having an external member is to ensure the presence of an independent person who can aid, advise and assist the ICC. Moreover a transfer order was given to aggrieved women as a form of quid pro quo when she complained about an officer who sexually harassed her. This amounts to victimisation and unfair treatment at workplace and therefore court ordered her reposting.
The complaint mechanism of POSH Act works in a way where the complaint committee submit the inquiry report to the disciplinary authority who acts upon those recommendations. However these recommendations are not binding. In order to attain binding nature the Act should have specified it as an order or command rather than just recommendation, so it is nothing more or nothing less than recommendations. The High Court of Calcutta in Inst. of Hotel Mgmt., Catering Tech. & Applied Nutrition v. Suddhasil Dey7 held that the expression “act upon the recommendation” contained in Section 13(4) of the POSH Act does not make it mandatory for the disciplinary authority to act on the recommendations of the ICC by accepting it. The expression “act upon the recommendation” means either to accept or to reject the recommendation, for reasons to be recorded in writing. So the disciplinary authority have the sole right to decide how to act.
Virtual Workplace under the POSH Act
In the developing world where technology and internet plays a pivotal role in almost every area, the emergence of digital workplace cannot be prevented. This emergence also give rise to digital crimes and digital harassment. Thus for protecting the victims from such online harassment there is a need to include such virtual workplace under the ambit of workplace. The judiciary had done this part and again proved the importance of judicial interpretation in this dynamic world. The legislation make laws but those written words are to be interpreted in the correct sense by the judiciary for the practical application.
In Sanjeev Mishra v. Bank of Baroda8, the Petitioner, a chief manager of Bank of Baroda, filed a Petition before the Supreme Court for quashing the chargesheet filed against him by the disciplinary authority of the bank, based on the complaint of sexual harassment by a bank employee. The Petitioner contented that the incident happened outside of the ambit of the workplace since the Complainant was situated in a different State and the obscene message was sent at late night. Supreme Court rejected this narrow interpretation and thereby widened the scope of workplace harassment to include digital harassment. So in a digital workplace, the different geographical location is not a matter as the online harassment also falls under sexual harassment at workplace. This judgment pushed the boundaries of what constitutes workplace harassment in an increasingly virtual world.
Students under the POSH Act
In the current scenario where crimes and harassment against children are rising and the legislation has enacted POCSO Act for protecting the children from sexual offences. These children are vulnerable in their household and at schools too. The school which is the second home to a child could turn into a horror for many students as the teachers, staffs, seniors, juniors, classmates in the school who are meant to protect the students might harm or abuse the students by exploiting their position or under the guise of care or guidance. Thus there arises a need to prevent, prohibit and protect those students from sexual harassment at schools. The remedy under POSH Act is not in substitute to any other remedies available to the aggrieved, instead it is an additional remedy available to the girl students to redress their sexual harassment case. This means that the aggrieved women or girl students can file a complaint under POSH Act along with a case under POCSO Act or any other criminal statute.
The Calcutta High Court in Pawan Kumar Niroula v. Union of India9 held that the provisions of the POSH Act are applicable to girl students at schools. In the case at hand many girl students through the Principal filed complaints of sexual harassment against a school teacher. The accused argued that the schools are not governed under the POSH Act and hence the girl students cannot avail the redressal from ICC. However the Court interpreted the definition of aggrieved women as applicable to girl students also because women of any age irrespective of their employment status are protected from sexual harassment under the Act. Thus the girl students at a school is also protected under the POSH Act.
Same gender Harassment under the POSH Act
What happens when a complaint is filed against a women? Whether the protection under POSH Act is available if the accused is a woman? The Act does not precludes a same gender complaint and the modesty or dignity of a woman can be harmed by an individual of same gender. Therefore courts have clarified that sexual harassment complaints against a person of same gender is maintainable under the POSH Act.
In Dr. Malabika Bhattacharjee v. ICC, Vivekananda College10, the complainant and the respondent belongs to the same gender and Internal Complaints committee take this complaint. A writ petition challenging the acts of ICC was filed stating that the sexual harassment of same gender is not covered under the POSH Act. The Calcutta High Court observed that the complaints which are related to Same-Gender Sexual Harassment are maintainable under the Prevention of Sexual Harassment Act. So even if the gender or sex of both the complainant and respondent are same, the provisions of POSH ACT 2013 are attracted. This was a progressive reading that aligns with the Constitution’s broader commitment to dignity and equality and it made the law more inclusive and progressive. The same gender complaints are not improbable in this dynamic world where legalising same gender marriage is in question, so the laws also should be changed with the changing world in order to render justice at all time.
Gig workers under the POSH Act
The POSH ACT applies to both organised and unorganised sectors but gig workers are not included under the unorganised sectors instead they are given a separate definition under the code of social security 2020. The question arises when women gig workers are harassed by the customers or when the gig workers harass a women customer. Although POSH Act does not explicitly includes gig workers and platform workers yet by the judicial interpretation they are also included under POSH Act.
In X v. Internal Complaints Committee & Ors.11, Ola argued that they are not employers to take liability under POSH Act as the cab drivers are their partners or independent contractors and not employees. The Karnataka High Court dismissed Ola’s argument, and made cab aggregators responsible for ensuring a safe working environment and to address complaints of sexual harassment appropriately. Judiciary by including gig workers through this interpretation has played a great role in recognising the emerging category of labour. Such judicial intervention and evolving interpretation mitigate the legislative lacking, as happened in Vishaka Guidelines.
Conclusion
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to ensure safe working spaces for women and to build enabling work environments that respect women’s right to equality of status and opportunity. An effective implementation of the Act will contribute to the realization of their right to gender equality, life and liberty, equality in working conditions everywhere. The courts continue to reinforce these principles through progressive interpretations and strict enforcement of laws. Thus Judiciary has helped to implement the Act in its full form during various judicial interpretations. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth. Economically, empowered women are key to the nation’s overall development.
- Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011 ↩︎
- Apparel Export Promotion Council v. A.K. Chopra, A.I.R. 1999 S.C. 625 ↩︎
- Saurabh Kumar Mallick v. Comptroller & Auditor Gen. of India, (2008) 151 D.L.T. 261 (Del.) ↩︎
- Medha Kotwal Lele v. Union of India, (2013) 1 S.C.C. 297. ↩︎
- Ruchika Singh Chhabra v. Air France India, 2018 SCC OnLine Del 9340 ↩︎
- Punjab & Sind Bank v. Durgesh Kuwar, A.I.R. 2020 S.C. 3040 ↩︎
- Inst. of Hotel Mgmt., Catering Tech. & Applied Nutrition v. Suddhasil Dey, MANU/WB/0458/2020 ↩︎
- Sanjeev Mishra v. Bank of Baroda, S.B. Civil Writ Petition No. 150/2021 (Raj. H.C.) ↩︎
- Pawan Kumar Niroula v. Union of India, 2022 LiveLaw Cal (15) ↩︎
- Dr. Malabika Bhattacharjee v. ICC, Vivekananda College, 2020 SCC OnLine Cal 3262 ↩︎
- Tanvi Sinha v. Internal Complaints Comm., ANI Techs. Pvt. Ltd., 2024 SCC OnLine Kar 102 ↩︎
