The Author of this article is Ann V Varghese, who is a member of LJRF Centre for Women and Child
Introduction
Sexual harassment is a grim reality not just in India but in employment sectors across the globe. Fighting this menace which gnaws at the basic fundamental rights guaranteed under Articles 14, 19(1)(g), and 21, calls for competent legislation to address the same. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, (here forth referred to as “the Act”) is thus a response to the violations of Articles 14, 19(1)(g), and 21 as well as an affirmation to protection against sexual harassment and the right to work with dignity which is universally recognised by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified by the Government of India.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is justly held to supersede the Vishaka case. This comprehensive act is based heavily on the foundations of the Vishaka guidelines laid down in the Vishaka and Ors. v State of Rajasthan [1] came into force on 9 December 2013 and covers the whole of India. Traversing over 8 chapters, the Act, popularly termed the POSH Act, aims to prevent, prohibit and redress sexual harassment of women in the workplace. Despite the fact that 8 years have passed since its enactment, the stark reality is that three out of four cases of sexual harassment at workplaces go without being divulged and reported. Read with the figures that nearly 91% of India’s working women are employed in the informal sector [2] where they are especially susceptible and vulnerable to harassment in the workplace. The significance of an analysis of the said act is indisputable.
Summary of the Provisions of the Act
The first chapter consists of a preliminary as well as an inclusive yet not exhaustive list of definitions required to frame the provisions of the act. Section 2(a) identifies an aggrieved woman with respect to the provisions of the Act while Further 2(n) also meticulously carves down behaviours and acts which may be deemed as sexual harassment. Consequently, any person who makes physical contact, advances, and sexually coloured remarks, demand or requests sexual favours, shows pornography, or makes any other unwelcome physical, verbal or non-verbal conduct of sexual nature is said to have committed sexual harassment. Section 3(2) covers the circumstance when sexual harassment is said to take place, i.e., when there is implicit or explicit threat or promise of detrimental treatment and employment status or preferential treatment and interference while creating an offensive work environment.
Chapter II mandates the employer to constitute an Internal Complaints Committee (ICC) in all administrative units comprising of a lady presiding officer, at least two members who are employees and experience in social work or have legal knowledge as well as a member from non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment while ensuring that half of the members thus nominated are women.
To deal with sexual harassment cases 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, Chapter III calls for the constitution of a Local Complaints Committee (LCC) by the District Officer having a similar composition to the ICC in addition to a nominee being a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government.
Chapter V deals with the inquiry into complaints.
During the pendency of an inquiry on a written request made by the aggrieved woman, the Committee can recommend to the employer to transfer the aggrieved woman or the respondent to any other workplace, and grant leaves to the aggrieved woman for up to a period of three months in addition to the already entitled leaves or grant such other relief to the aggrieved woman as she wishes[8]. The employer is bound to implement the recommendations so made and send the report of such implementation to the Committee.
Suppose the Committee finds the inquiry report to prove the allegation. In that case, it can recommend action against sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or deduct from the salary or wages of the respondent an appropriate sum to be paid to the aggrieved woman or to her legal heirs or direct to the respondent to pay the sum to the aggrieved woman. The sum paid as compensation is determined considering the mental trauma, pain, suffering, and emotional distress caused, the loss of the career opportunity due to the incident, medical expenses incurred by the victim for physical or psychiatric treatment, and the income and financial status of the respondent. The contents of the inquiry report are not to be made public and violation of the same is liable to attract a penalty.
In case of the allegation made is proved as malicious and the complaint has been filed knowing it to be false or if the complainant has produced any forged or misleading document, then, action against them may be initiated in accordance with the provisions of the service rules applicable to her or him. However, it is pertinent to note that the mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under the section.
Chapter VI holds the employer duty-bound to provide safe working conditions, organise workshops for sensitizing employees and assist the aggrieved women to file a complaint under sections of IPC (or any law in force) among other obligations. She is also required to take action for misconduct and monitor the timely submission of reports by the Internal Committee.
In addition to Chapter VII which details the duties of the District Officer, the Act ends with the Miscellaneous provisions listed in Chapter VIII.
Proceedings in a nutshell
The Act calls for the creation of ICC or LCC by the provisos of Chapters II and III. Any instance of harassment is to be reported to the committee within 3 months. The time limit can be extended by the Committee if sufficient grounds exist. The committee may try the method of conciliation upon request of the woman before the inquiry and if terms of the same are being violated, the inquiry proceedings go as per the service rules applicable to the respondent and if no such rules exist, the complaint is forwarded to the police for registering a case under IPC 509.
At the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses. On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman to the respondent within a period of seven working days. The respondent shall then file his reply to the complaint along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the specified documents.
The committee can recommend the employer to transfer either of the parties, grant three months’ leave to the aggrieved party, or any other relief deemed appropriate during the inquiry stage. If found guilty, the committee may recommend action for sexual harassment as misconduct is initiated as per the service rules or compensation to be paid as determined.
If the employer doesn’t constitute an ICC or take relevant actions under Sec 13, 14, and 22, then they are liable to be punished with a fine extendable up to Rs.50,000.
Further, if an employer who was previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to twice the punishment, which might have been imposed on a first conviction or for any higher punishment available under any other relevant sections. It may also result in the cancellation, of his license or withdrawal, non-renewal, approval, or cancellation of the registration, required for carrying on his business or activity.
Interpretations and Case laws
Any discussion on the POSH Act 2013 cannot take place without touching upon the Vishaka Case which was historic in itself. Bhanwari Devi a social worker employed with the Rajasthan Government was gang-raped by landlords belonging to the upper community on account that she prevented a child marriage from happening. The trial court dismissed the case and a collective of women under the banner of Vishaka filed a petition in the Supreme Court raising the issue of safe working conditions. The Hon’ble court took cognizance of the issue and upheld the rights of working women. A comprehensive guideline was issued known as the “Vishaka Guideline” which lays down mechanisms for redressal and defines sexual harassment. It is justly seen as a predecessor to the POSH Act, 2013.
In a writ petition by way of Public Interest Litigation (PIL) filed by Women in Cinema Collective (WCC) for the establishment of a grievance redressal mechanism in the Association of Malayalam Movie Artists (AMMA), the body of Malayalam movie actors [3], the Kerala High Court observed that film production houses have the responsibility to form an Internal Complaints Committee as per the POSH Act observing that each film unit in an industry is an established and an ICC needs to be constituted for that purpose. However, a political party does not constitute a “workplace” as defined in Sec 2(o). Further political parties, which do not have an employer-employee relationship with their members are not under the scope of the workplace.
However, in a separate judgment, the Calcutta High Court held that girl students of a school can file complaints under the POSH Act [4]. In this case, the petitioner, a teacher by profession was accused of several charges of sexual abuse by students. A case was filed under provisions of the POCSO act and was later released on bail. The petitioner contended that since the allegations against him were of sexual harassment at the workplace, an ICC was to be formed and the necessary course of action was to be followed. The court rejected the school authority’s argument that school students cannot be brought under the scope of the POSH Act while placing importance on the definition of an aggrieved woman.
It is also to be noted that neither misunderstanding with seniors nor mere discrimination of sex without sexual undertones do not amount to sexual harassment under POSH Act. In Mary Rajasekaran v University of Madras [5] Justice N. Sathish Kumar observed that without showing any instances leading to sexual harassment, such misunderstandings or happenings cannot be termed as sexual harassment. In the said case the petitioner had moved a writ petition against the Director of the Alumni Association, who was employed on a contractual basis, accused of sexual harassment. However, setting aside the Women’s Commission ordering compensation, the court observed that the allegations of sexual harassment were raised only after criminal investigations had started against her son. Also, there was no mention of specific instances and nature of allegations, and neither has any complaint been made directly to the college administration. It was in Dr. Prasad Pannian vs Central University of Kerala [6] that the court clarified that in order to take action based on the 2013 act, the acts so complained must fall under the ambit of Sec 2(n) and Sec 3 or any other form of sexual treatment or behaviour.
It is indeed notable that same-gender sexual harassment complaints maintainable are under POSH Act. in the case of Dr. Malabika Bhattacharjee v Internal Complaints Committee [7], Vivekananda College and Ors, the court analysed the section 2(m) of the act which defines respondent. “Sexual harassment, as contemplated in the 2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act. A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act,” said the court.
Further, non-compliance with provisions of the act will incur actions as illustrated by Mrs. Arvinder Bagga & Ors. v. Local Complaints Committee, District Indore & Ors. [8], where the Indore Bench of the Madhya Pradesh High Court has slapped a penalty of Rs. 50,000.00 on Medanta Hospital, Indore for not having an Internal Complaints Committee (ICC) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The court has also directed the hospital to pay a compensation of INR 25 Lakhs to the complainant for failing to address her complaint of sexual harassment. The order was passed in concurrence with the report that was filed by the Local Complaints Committee, Indore.
References
1) Constitution of India by Dr. J N Pandey
2) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
3) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013
Citations
[1] VISHAKA AND OTHERS V. STATE OF RAJASTHAN AND OTHERS – LNIND 1997 SC 1081 (1997) 6 SCC 2411997 (5) SCALE 4531997 SCC Cri 932AIR 1997 SC 3011JT 1997 (7) SC 384LNIND 1997 SC 1081
[2] Initiative for What Works to Advance Women and Girls in the Economy-Institute of Social Studies Trust report.
[3] Centre for Constitutional Rights Research and Advocacy v. State of Kerala & Ors. 2022 LiveLaw (Ker) 129
[4] Pawan Kumar Niroula v. Union of India 2022 LiveLaw (Cal) 15.
[5] The High Court of Kerala WP(C). No.9219 OF 2020(B)
[6] WP(C) No.10370/2020 of High Court of Kerala
[7] W.P.A. 9141 of 2020 of Calcutta High Court Dr. Malabika Bhattacharjee -versus Internal Complaints Committee, Vivekananda College & Ors.
[8] W.P. No. 22314 of 2017 of Madhya Pradesh High Court.
