Chandhana K U·
Women & Child
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The Evolution of POSH Act: The Journey of Ensuring Safety at Workplace

About the Author

The author of this Article is Meera M S, of 2nd semester BA LLB, studying at Government Law College, Thiruvananthapuram

Were all women safe in their workplaces in the past? No.

Are all women safe in their workplaces now? Still, a no.

There are laws that protect women from sexual harassment at workplace, and they have certainly reduced the number of such cases, but still not every woman is safe. Women all around the world face sexual harassment at their workplace. We must ensure the proper implementation of the laws which protect women from such harassment. In India, the POSH Act safeguards women’s right in their workplace, by offering protection and security by creating a safe working environment.

Introduction

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, more commonly known as the POSH Act was enacted in India on 22nd of April 2013 and the act came into effect on December 9th, 2013. The Act has made significant impact in the country by creating a safe and secure workplace for women. The Act was designed to protect women from sexual harassments and to address such complaints. The Vishakha Guidelines has been the foundation of the POSH Act.

Background

The Indian society has been and continues to be patriarchal, where men were considered to have a dominant position. The patriarchal society has shaped the country into believing that men are superior to women, stronger and more powerful. In the earlier times, women were suppressed and harassed. No women dared to stand up for themselves. There was gender based violences and discrimination. It took quite a long time for them to develop a voice, to take a stand. In the early 19th century, women all around the country, formed groups to advocate for their rights. Education and awareness played a great role in this movement. Financial independence, equal rights, gender equality and equality of opportunity were some of the main focuses of the movement. After all such struggles, they were able to work but not safely. Workplace safety always remained a persistent concern to all women as there was no law to protect their rights and to ensure their safety.

The case behind the evolution of the POSH Act

In the case of Vishakha and Ors vs. State of Rajasthan 1, Bhanwari Devi was a social worker who was actively involved in women’s development programmes in the state of Rajasthan. She supported a campaign to end child marriages. Upon learning about a child marriage, she reported it to the police after which she lost her job and was boycotted from the village. She was brutally gang-raped for trying to stop the child marriage. Her medical examination was delayed for several hours, and the accused were acquitted due to the lack of evidence. A Public Interest Litigation (PIL) was filed by a women rights group called ‘Vishakha’ demanding justice for Bhanwari Devi. The PIL focused on enforcing the rights of women at workplace, which is enshrined under Article 14, Article 15, Article 19 and Article 21 of the Indian Constitution 2.  This was a landmark case that led to the formation of the Vishakha Guidelines and then the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or the POSH Act. Despite not getting justice herself, Bhanwari Devi played a significant role in shaping the law.

The Vishakha Guidelines: the stepping stones to the POSH Act

The Vishakha Guidelines were procedural guidelines formulated for the protection of women from sexual harassment at workplace.

Previously, those persons who faced any kind of sexual harassment or abuse at their workplace filed a case at the police station under either Section 354 of the IPC, 1860 or under Section 509 of the IPC, 1860. Section 354 of IPC, 1860 addresses assault or use of criminal force to a woman with the intent to outrage her modesty 3 and Section 509 of IPC, 1860 deals with the insulting the modesty of a woman through any words, gestures or actions 4. These laws were found not adequate in providing women protection in their workplace and there was a need for a law more specialized in the same. But the enactment of a law would take considerable amount of time and to provide women protection and to ensure safety in their workplaces during the period, the Vishakha Guidelines were formulated by the Supreme Court in 1997.

Key features of the Vishakha Guidelines

Some of the key features of the Vishakha Guidelines include:

  • Definition of sexual harassment – Sexual harassment was defined as unwelcome sexually determined behaviour such as physical contact or advances, demand or request for sexual favours, sexually coloured remarks, showing pornography and any other unwelcome physical, verbal, or non-verbal conduct.
  • Employer’s responsibility – According to the guideline, employers had the responsibility to ensure the protection of women in the workplace and to prevent and deter any commission of such sexual acts. They were also responsible for addressing such complaints.
  • Preventive steps – The guidelines necessitated all employers to take necessary steps to prevent sexual harassment at their workplaces, either in private or in public sector by publishing notices that are circulated in the workplace and by increasing awareness of the rights of women.
  • Disciplinary action – In the case where any complaint of sexual harassment has been received, the employer must initiate disciplinary action.
  • Complaint mechanism – It was mandatory that there must be a complaint mechanism within every workplace to ensure time-bound treatment of complaints. Moreover, having a complaint mechanism within the workplace makes it easier for the victim to make a complaint.
  • Complaints committee – As per the complaint mechanism, there must be a complaints committee in every workplace. The complaints committee must be headed by a woman and at least half of the members of the committee must be women. There must be one external member or a third party in the committee.

Transformation from the Vishakha Guidelines to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or the POSH Act

The Vishakha Guidelines were temporary procedural guidelines which were formulated by the Supreme Court in 1997 in the absence of any law to protect women from sexual harassment at their workplace. The guidelines were set because the process of enacting a law would take a considerable amount of time. But these guidelines lacked legislative backing. They were not as powerful as expected. Organizations did not set up proper complaints mechanisms to resolve the complaints of the victims. The non-adherence of the guidelines necessitated the formulation of a new law. There was a need for a more comprehensive, all-inclusive and detailed framework with a legislative backing for the protection of women from sexual harassment at their workplace. It took quite a long time for the transformation from the Vishakha Guidelines in 1997 to the POSH Act in 2013.

The Act: The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ( POSH Act)

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is more commonly known as the POSH Act.

Equality is a fundamental right of every human being and sexual harassment or assault to a woman is a violation of the fundamental rights which is enshrined in Article 14 and Article 15 of the Indian Constitution 5. Everyone has a right to life and liberty under Article 21 of the Constitution of India 6. Hence there arises a need for a law which protects the fundamental rights of women and for the protection of women from sexual harassments at their workplace by ensuring their safety. These rights are globally accepted and recognized in CEDAW 7 (Convention on the Elimination of All Forms of Discrimination against Women).

Key features of the POSH Act

Some of the main features of the POSH Act include:

  • Definition of sexual harassment – Sexual harassment includes one or more of the following unwelcome acts such as unwelcome sexually determined behaviour such as physical contact or advances, demand or request for sexual favours, sexually coloured remarks, showing pornography and any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.
  • Definition of workplace – The POSH Act expanded the scope and application of the Act by including organized sector as well as unorganized sector. The Act defines an unorganized sector as a workplace, or any enterprise owned by any individual or self-employed people for production or sale of goods or services where the number of employees is below 10.
  • Constitution of an Internal Complaints Committee – As per the POSH Act, every organization or enterprise having more than 10 employees must constitute an Internal Complaints Committee. It must be formulated by the employer to protect women from sexual harassment and to address the complaints filed by such victims in the workplace. The Internal Complaints Committee must have at least 4 members, headed by a woman and at least half of the members of the committee must be women. They shall hold office for up to three years and may be removed if he/she contravenes any provision, abuses their position or found guilty in any disciplinary proceedings.  
  • Constitution of a Local Complaints Committee – As per the POSH Act, every district officer must constitute a Local Complaints Committee, commonly known as the Local Committee, consisting of 4 members, headed by a women, to protect women from sexual harassment and to address the complaints filed by such victims. The district officer may be a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector.
  • Complaints – If any woman has faced sexual harassment at her workplace, she can file a complaint to the Internal Committee (if the number employees at the workplace is above ten) or the Local Committee (if the number employees at the workplace is below ten) as the case might be, within a period of 3 months of such incident. If a person is unable to make such a complaint due to physical or mental incapacity, any other person may make a complaint on behalf of her.
  • Annual report – The internal committee must submit the annual report to the employer, who then submits it to the district officer to maintain transparency and to ensure proper implementation of the Act.
  • Penalty for non-adherence with the provisions of the act – If an employer fails to set up an internal committee or refuses to take in a complaint then he or she shall be punishable with a fine which may extend to up to fifty thousand rupees and for a subsequent offence, there will be twice the punishment.

Substantial differences between the POSH Act and the Vishakha Guidelines of 1997

Some of the major differences between the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Vishakha Guidelines include –

  • Legal framework – One of the most significant changes brought in by the POSH Act is the statutory backing. The Vishakha Guidelines did not have any legislative endorsement.
  • Enhancement of scope of application of the Act – The POSH Act expanded the definition of workplace by including the organized sector as well as the unorganized sector.
  • Penalty for non-compliance of the Act – The Act introduced penalties or punishments for failure to comply with any provision of the Act.
  • Mandatory formation of internal complaints committee or local complaints committee – The Act has made it mandatory for every organization or enterprise to constitute an Internal Complaints Committee or a Local Complaints Committee as the case might be.
  • Time bound inquiry into the complaints – The Act has made it compulsory for the committee to inquire into the complaints within 90 days in order to ensure timely resolution.

Conclusion

The journey of transformation from resorting to the laws under Section 354 and Section 509 of the IPC, 1860 before 1997 to the formulation of the Vishakha Guidelines in 1997 and to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 for addressing the issues of sexual harassment at their workplaces has been nothing short of spectacular. It has been a journey of growth, change and progress. This journey has ensured women a safe, secure and a more respectable work environment.

There is no doubt whether the changes brought in by the POSH Act have been beneficial. The Act has reduced the number of cases due to the fear of punishments, and it has reduced the number of cases that would have gone unspoken of. Having complaints mechanisms set up within the workplace made it easier for the women to come forward and speak up about the harassments that they face within their workplace.

Still, many incidents remain undisclosed. Many women refrain themselves from complaining just in the fear of the consequences that they might need to face in their career if the things are revealed. They are anxious about the effect that it might have on their career advancement and professional reputation. Moreover, a lack of trust in the system is pretty evident. Some women lack awareness about the options they have in front of them or might be unaware of the remedies that they can resort to. The ineffective Internal Committees prevalent in many organizations, followed by poor follow up processes on the cases reported by the victims is one of the reasons why the victims go silent.

There is a long way to go for one to finally say that all women are safe at their workplaces. We need to work together to try and create a safe and respected work environment for all women.  

Bibliography

  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
  • The Constitution of India
  • Vishakha Guidelines – cag.gov.in
  • The Indian Penal Code, 1860 (Act of 45 of 1860)

Footnotes

  1. Vishakha & Ors v. State of Rajasthan, AIR 1997 SC 3011 ↩︎
  2. The Constitution of India, 1950, Article 14, 15, 19, 21 ↩︎
  3. The Indian Penal Code, 1860 (Act 45 of 1860), Section 354 ↩︎
  4. The Indian Penal Code, 1860 (Act 45 0f 1860), Section 509 ↩︎
  5. The Constitution of India, 1950, Article 14,15 ↩︎
  6. The Constitution of India, Article 21 ↩︎
  7. UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women ↩︎

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