About the Author
The author of this article is Alexy Joy. She’s an editor of LJRF Voice
Introduction
Workplace sexual harassment in India, was for the very first time recognised by the Supreme Court of India in its landmark judgment of Vishaka v. State of Rajasthan. So it laid down certain guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment which were being followed by employers until the enactment of a legislation. This case is the foundation of the law against sexual harassment of women at the workplace in India.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also called the POSH Act was enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints of sexual harassment.
Foundation of POSH ACT
The POSH Act has been developed on and around these three foundations.
1. Sexual harassment at workplaces violates fundamental rights of gender equality and right to life and liberty and the right to work with human dignity guaranteed under the Articles 14, 15, and 21 of the Constitution of India.
2. In addition, failing to protect women against sexual harassment and not able to save their right to work with dignity went against the universally recognized human rights by international conventions and instruments such as the Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on June 25, 1993, by the Government of India. Thus, the POSH Act is an attempt to overcome these shortfalls.
3. POSH Act is an extension of Vishakha Guidelines, 1997, introduced by the Supreme Court which had laid down guidelines for dealing with sexual harassment at workplace, pending formal legislation.
Few Decisions of the Pre-POSH Law Era
1.Rupan Deol Bajaj vs. K.P.S. Gill (1995)
A senior IAS officer was sexually harassed (slapped on the posterior) by a superior officer and the recourse to the limited provisions of the IPC under Section 354 and Section 509 were not found sufficient by the High Court. This gap in the law was very apparent and the need for further reforms on sexual harassment was obvious.
2.Landmark case of Vishaka v. State of Rajasthan (1997)
A Dalit woman named Bhanwari Devi who was working in the rural development program of the Government of India was gang-raped by five men because of her efforts to combat the prevalent practices of child marriages in Rajasthan. Bhanwari was unable to get justice from the police and the trial court where the matter was not taken seriously on the account that there was no medical evidence and those five men belong to the upper caste of the society and will not touch or get associated with her who is of such a lower caste. In the end, women’s rights activists and lawyers helped her by filing public interest litigation in the Supreme Court of India under the name of Vishaka. The Supreme Court, in this landmark judgment, recognized workplace sexual harassment as a human rights violation and a clear breach of the fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Constitution of India. The Apex Court laid down specific guidelines and had directed the Union of India to enact a suitable law for curbing sexual harassment cases in workplaces in India. The guidelines were laid down to prevent instances of sexual harassment of women in workplaces. The employers were asked to take the necessary steps to stop cases of sexual harassment.
3.Apparel Export Promotion Council v. A.K Chopra (1999)
The council Chairman was accused of sexually harassing the secretary. Though he made repeated attempts; the chairman never actually molested her. On her complaint the employer was fired. On the basis of a writ petition filed by the employer the Delhi High Court took cognizance of the fact that he never actually molested her and did not make any actual physical contact. Thus concluding that he did not actually molest her. In an appeal filed by the council, the Supreme Court reversed the Delhi High Court Judgement, by widening the scope of sexual harassment and ruling that “physical contact is not always essential for an act amounting to workplace sexual harassment.” Sexual harassment is seen as any ‘unwelcome’ act. The Apex Court asserted that sexual harassment compromised the dignity of women and cannot be condoned.
4.DS Grewal v. Vimmi Joshi (2008)
A colonel of the Indian Army made advances and wrote inappropriate letters to the principal at an army school. The principal was apprehensive that if she objected to his conduct, he would create a hostile working environment and hinder her employment, including her promotion. Her fears did come true as her services were terminated. The Supreme Court ordered the school management to constitute a three- member complaints committee (as mandated by Vishakha Guidelines) to ascertain if there were any prima facie case against the army officer. If the committee found such a case, it would submit its reports to the army, which would then initiate disciplinary proceedings. The court also affirmed that the school management was bound to bear the legal costs incurred by the principal (with counsel fee assessed at 50,000) for it had not complied with Vishakha Guidelines to begin with.
5.Medha Kotwal Lele & Ors. v. Union of India & Ors. (2012)
The Petitioner wrote a letter highlighting several cases of sexual harassment and describing that the Vishaka guidelines were not effectively implemented in the country. The letter was converted into a writ petition and was filed in the Supreme Court of India where the petitioner alleged that the guidelines that were laid down in the Vishaka case were unable to curb sexual harassment in workplaces because these guidelines were violated in both substance and spirit by the state authorities. The Apex Court held that several states were not properly implementing the guidelines. The Supreme Court issued the following directions:
State governments should make sure that there are sufficient complaint committees made within each state to hear every single complaint that is made and also these committees should be headed by a woman.
Appropriate mechanisms should be created by the state authorities to make sure that effective implementation of the Vishaka guidelines is taking place.
It shall be the duty of the Bar Council of India to make sure that all the bar associations in the country and individuals registered with the State Bar Councils adhere to the Vishaka guidelines.
In the case of non-compliance to the Vishaka guidelines, it would be open for the aggrieved individuals to approach the High Court of the concerned state.
6.Seema Lepcha vs State of Sikkim and Others (2012)
Seema Lepcha, a widow and a peon working at the central bank was sexually harassed by the Chief Manager of the Gangtok bank branch. Now as per the Vishaka guidelines there needs to be an independent committee looking after the sexual harassment cases in the organizations which were not present at the bank workplace. A writ was filed in the High Court of Sikkim concerning the absence of the independent complaint committee in the bank. The High Court directed the respondents to create a complaint committee and have the proper training for sensitization of the bank employees and to structure policies for preventing cases of sexual harassment in the workplace. The order of the High Court was challenged in the Supreme Court where the Supreme Court gave the following guidelines:
The State government shall provide comprehensive publicity to the notifications and orders issued by it in adherence to the Vishaka guidelines and the directions issued in the Medha Kotwal case by the Supreme Court and this should be done by publishing all the information in the newspapers having the most circulation in the state after every two months.
Complete publicity should be given in Doordarshan about the several steps taken by the state government for enacting the guidelines laid down in the Vishaka case and the directions given by the Medha Kotwal case.
Wide publicity should be given by the social welfare and the legal service authority of Sikkim to the notifications and orders given by the state government for both the government and private institutions .
Precedents after the Implementation of POSH ACT
1. Anita Suresh vs. Union of India & Ors in W.P.(C) 5114/2015
When the Court upheld the misuse of the rights provided to women under this law and levied a fine of INR 50,000 on the Complainant for filing a false complaint. A very important element provided in the law to ensure the prevention of misuse under this law. Several organizations fail to educate their employees on this and various Internal Committees do not initiate investigations when they conclude a frivolous complaint.
2. Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust and Ors. (2015 SCC OnLine Del 11026)
When the Court stated that sexual harassment at the workplace can also mean a hostile and oppressive work environment for a woman employee when power and authority from a male member of the organization are being used to force her to accompany him on his outstation travels and late-night meetings.
3.Mukesh & Anr. vs. State for NCT of Delhi & Ors. (2017)
A 23-year-old was brutally raped and assaulted by six individuals and her friend had been badly beaten up by the perpetrators. She even got attacked by an iron rod because of which she had her intestines pulled apart and then later on she died. The Supreme Court’s bench passed the death penalty to all the persons involved except for the juvenile, who was convicted and sentenced to three years in the reformation center. This incident shocked the whole of India and it ignited the fire for women’s rights and safety in the country. Several legislative reforms were made, the Criminal Law (Amendment) Act 2013, was enacted which in the process provided for the amendments of Indian Penal Code, 1860; Code of Criminal Procedure, 1973, Indian Evidence Act, 1872, and Protection of Children from Sexual Offences Act, 2012 with regards to the sexual offenses connected laws. The amendment introduced Section 354A IPC which defines Sexual Harassment and provides punishment for the same. A man committing any of the following acts—
physical contact and advances involving unwelcome and explicit sexual overtures; or
a demand or request for sexual favours; or
showing pornography against the will of a woman;or
Making sexually coloured remarks, shall be guilty of the offence of sexual harassment and shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or both.
4. K.P. Anil Rajagopal v. State ofKerela, Kerela High Court ((2018) 1 KLJ 106)
When Court clarified that a verbal statement from a man towards a woman with a negative undertone alone cannot suffice as a complaint of sexual harassment. It further stated that if such complaints are entertained by the Committee then it will be difficult for performance reviews to happen fairly and eventually between a male supervisor and his female colleagues.
5.Shanta Kumar v. Council of Scientific and Industrial Research (CDIR) & Ors, Delhi High Court ((2018) 156 FLR 719)
When Court clarified that not all physical forms of contact from a man towards a woman can be construed as sexual harassment. It went on further to state that it is crucial to gauge the undertone and intent of sexual nature to qualify a physical contact/advance as sexual harassment (in comparison with mere harassment).
Conclusion
This provision is not limited to sexual harassment at the workplace, but punishes such harassment done anywhere.
It took Legislation 16 years after the passing of Vishaka guidelines, to enact Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This act has filled in the void of proper legislation that delivers each and every woman of India, regardless of age or status of employment, a workplace that is safe and secure from any kind of harassment. The objective of POSH Act is to not only protect but also to prevent any kind of sexual harassment that occur in workplace and ensure a speedy remedy for any complaints that are filed under the act.
