Authored By: Kanika Arora

Understanding POSH

Introduction

For a lot of years, women’s rights activists and organizations have been fighting to have the Indian Constitution amended in order to include laws that protect women’s rights. In India, being a patriarchal society, women’s rights need additional protection. This is why many legislations have been created to achieve this objective. One of them is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, whose purpose is to protect working women from any threat of sexual harassment.

A Brief Overview of the frequency of harassment in the workplace

Sexual harassment and sex-based harassment have been distinguished from one another. Sahgal and Dang (2017) emphasize that sexual harassment is not always indicative of sexual desire, but can also be used as a means of asserting one sex’s dominance over the other. A woman’s emotional health suffers as a result of these behaviors and acts, which impedes her ability to advance both personally and professionally. According to numerous studies, a sizable portion of women in employment have experienced sexual harassment, and a disproportionate amount of these incidents go unreported. Girls have been trained to be quiet victims of the patriarchal onslaught because of the culture of silence that has been fostered in their education (Sahgal & Dang, 2017).

When the gender power dynamics of a patriarchal society are combined with the unequal power dynamics created by the hierarchical structure of the workplace, the woman who is lower in rank in this hierarchical structure suffers because she is forced to choose between filing the complaint and keeping her job. The most likely outcome of reporting the offender is that they will either lose their employment or face similar repercussions. It goes beyond this point; if a woman deviates from socially acceptable gender norms, she is held accountable for the sexual harassment of which she has been a victim. Attending late-night events, consuming alcohol, or donning short clothes are considered deviations from traditional gender roles.

History of harassment at work

The turning point in the movement towards workplace harassment legislation could arguably be the Bhanwari Devi gang rape case that happened in 1992. As a social worker with the Woman and Child Development Department under Haryana government, Bhanwari Devi was employed by Haryana government as a social worker in its Woman and Child Development Department. At that time she was trying to stop child marriage when some members from wealthy Gurjar community powerfully raped her. Following an acquittal by the lower court on behalf of defendants, this incident received wide coverage from media houses. Many non-governmental organizations filed a writ petition before Supreme Court in 1997 seeking protection for women’s fundamental rights under Articles 14 , 19 , and 21 . In response to this incident as well as other violations against women workers’ dignity and human rights claimed on it sexual harassment particularly at work place However given that there was no domestic law on these matters, The supreme court decided to issue Vishakha Guidelines pending enactment of suitable legislation.In fact, it has been sixteen years since Vishakha guidelines were released by judiciary while POSH Act entered into statute books.

ACT’S APPLICATION AND SCOPE

The Prevention of Sexual Harassment Act addresses unwanted sexual advances, requests for the same, and other similar physical or verbal behavior. The Act’s provisions cover the following three categories of physical harassment:

Interaction or harassment
Harassment in words or deeds, such as remarks and gestures;
display any such suggestive content.

Both behaviors and conduct fall within the Act’s definition of sexual harassment.

This means that whether size or formality does not matter; all workplaces must follow the POSH Act regardless if they belong to public or private sectors.Why this section should be highlighted is that the POSH Act applies to all workplaces regardless of their size or nature. In other words, whether big or small scale businesses, there is need for all employers to adhere to the Act and ensure women work in environments free from any harm. The Act defends every woman irrespective of how old she is, her status in society, and even religion. Consequently, every woman has a right to be protected against sexual harassment at workplace. Additionally, formal as well as informal working places such as offices, factories and business premises; and even homes are covered by the POSH act.This means that it also offers protection.

Clauses About the avoidance of workplace harassment

By Section 2(n), any unwanted physical touches and advances; sexually suggestive comments; demands for sex favors; pornography displays or any other physical behavior either verbal or non-verbal which is of sexual nature is considered as sexual harassment (Section 2(n)). Further definition of “workplace” has been provided under section 2(o) which includes public and private establishments.

Section 3 , which forbids sexual harassment, depends on these two phrases . Cf . Section 3(2) lists situations that may qualify as sexual harassment if they are proven to be linked with or connected to any act or conduct constituting sexual harassment . Examples include implied promise for privileges , express threat to cover up disadvantages , threats of employment consequences , interference with work-related activities , unwarranted creation of hostile intimidating workplace environment offensive inappropriate treatment endangering health life safety at risk.

Techniques of implementation

Complaining about something

According to Section 9 of the POSH Act[8], the resentful lady must submit a written complaint to the Local Committee or the Internal Complaints Committee (ICC) to initiate the redressal system. The presiding officer or members of the ICC, or the chairperson or any member of the Local Committee in the case of the latter, will provide her with every reasonable assistance to register a written complaint if, for any reason, she is unable to do so on her own.

A written complaint must be made with the committee within three months of the last incident date, or three months of the last incident date in the case of a series of incidents. If the ICC, or local committee, determines that the women’s circumstances prohibited them from making the complaint within the allotted time, they have the authority to extend this period. If the committee receives written justification, it may decide to grant such an extension.

Investigation of the Grievance

Section 11 gives the ICC and the Local Committee to investigate the matter as per the service rule terms for respondents. If there are no such regulations, any guidebook that is applicable should be used during the inquiry. After establishing whether there is a case of domestic workers involved, local committee must transmit it to police within seven days if they are to register it under section 509 of IPC with other relevant provisions.

In case a woman who has been offended tells this to a committee, which has heard them say that none of the terms and conditions have been observed as per a settlement arrived at pursuant to Section 10(2); she ought to make sure however that she has spoken in confidence. This clause’s proviso which mandates that both parties must be given an opportunity throughout the hearing by this panel before concluding its findings into each one for example, illustrates natural justice.

When you appear before this commission during trials; through paragraph 11(3) (a-c) of civil court, use these powers:

• calling someone to appear, making them testify under oath,
• demanding provision of any relevant documents including but not limited too those referred in section X above;
• any other authorized action.

To ensure timely justice by Section 11(4), some investigations shall last for up-to three months only.

Establishments Governed by the PoSH Act:

1. Corporate Offices: Since most harassment cases are reported from corporate environments as well, this act applies therein. To handle complaints effectively and promptly organizations should establish Internal Complaints Committees (ICCs).
2. Government Offices: The PoSH Act does not apply to government agencies. Just like private sector offices need ICCs to provide conducive working environment.
3. Educational Institutions: Due to students’ and staff’s vulnerability many acts applied at educational institutions e.g. schools colleges universities fall under ‘PoSH Act’. Institutions are required to set up ICCs for quick complaint resolutions.
4. Non-Governmental Organizations (NGOs): Even if some NGOs work in very sensitive areas, the PoSH Act does not apply to them. To secure these organizations, ICCS must be created.
5. Hospitals and Healthcare Facilities: The PoSH Act recognizes healthcare settings and underscores the necessity of safe working environment for both support staff and medical professionals. For this industry, ICCs are indispensable when dealing with harassment charges.
6. Factories and Manufacturing Units: The Act covers various kinds of workplaces including factories or manufacturing units. These settings must have ICCs to handle sexual harassment charges.
7. Informal Sectors: This law applies to small businesses who sell on streets among other things due to awareness that any workplace in this country is infested with this problem

Case Laws

Vishaka & Ors. v. Rajasthan State & Ors.[12]

The Honorable Court had no option but to consider international treaties as our nation lacked any such laws on sexual harassment; reference was made to provisions of Convention on Elimination of All Forms Against Women (CEDAW) and Beijing Statement of Principles on the Independence of Judiciary by LAWASIA area among others.

Pramati Barua V. Ranjit Barthakur[13]

In the absence of specific jurisdiction, this case demonstrated the importance of having a well-functioning mechanism to deal with sexual harassment. The court emphasized the need for an employer to put in place measures to prevent and address sexual harassment at work.

Pune Municipal Corporation v. Harakchand Misirimal Solanki[14]

Bombay High Court reiterated on the importance of ICCs to deal with complaints and it is mandatory for every employer to implement PoSH Act. According to the court, employers can face legal consequences if they don’t abide by this Act.

Conclusion

The Prevention of Sexual Harassment (PoSH) Act in India is a vital legislation that addresses a widespread problem of gender-based violence at workplaces. Its wide application ensures protection of employees across industries and sectors. To create safe and welcoming workspaces, both employers as well as workers should understand what the PoSH Act protects against in terms of work environments. These case laws demonstrate not only the pressing need for strict implementation and compliance with PoSH law but also show how Indian law surrounding sexual harassment has changed over time.

India’s enacted Prevention of Sexual Harassment Act has greatly reshaped workplace dynamics. Understanding its scope for various sectors through case studies while appreciating its comprehensiveness can help us better comprehend such provisions that are written in complex language that covers most types of workplaces within which people could be sexually violated by their colleagues or bosses; thus restoring our faith in such legislation due to our hopes that it would safeguard human dignity within all relationships existing at workplaces where we spend most hours of our lives except when we are asleep or on vacations. The statute may also serve as an instrument promoting non-hostile working conditions conducive to everyone’s welfare and professional growth alike although this involves some costs associated with violation claims filed thereunder. Legal framework laid down by PoSH act seeks to make working environments in India safer and more inclusive than before.