1. Introduction
Man and woman are born equal but are not often treated equally. In the earlier times, women were only considered as robots for household work and self satisfaction. It was from the starting of the 20th century when the government started passing special laws and acts for women, and then they started coming out of their houses and started to create their position in every stream of life whether it is politics, army, science or technology. It is pretty natural for the society when a man steps his feet out for work but when the women were often ill treated and judged by the society when she started going out of their household for work.
Moreover the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) adopted by the General assembly of United states also prohibits sexual harassment of women at work place, and since India is party to CEDAW. Since India signed CEDAW in 1980 and ratified it in 1993, it has become the duty of India to make strict laws for the prohibition of disicrimination of women at the workplace.
So, by passing the POSH Act, India has fulfilled its obligation.
Moreover, the guidelines given by the supreme court in the case of ‘Vishaka vs State of Rajasthan[i]’ forms the basis of this act. This act is also popularly known as POSH Act.
2. Vishaka vs State of Rajasthan
The guidelines given in the vishaka case by the Supreme Court forms the basis of POSH act, 2013. In this case, a class action suit was filled by a group of NGOs and Social workers under article 32 of the Indian Constitution to enforce gender neutral rights for the safety of working women.
Bhanvari devi, a government social worker was gang raped in rajasthan as she stopped the child marriage in her village. Therefore, some social workers, NGOs filed a class action suit in the court by the name of Vishaka seeking the attention of the court about the need for legislation in our Indian statutes[ii]. However this case was a separate subject matter of another case but this case helps the court to find the difficulties and problems faced by women at the workplace. The court issued the writ of mandamus in this case.
The court in this case has said that in case of absence of any legislations in the Indian Statues for effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, the court laid down certain guidelines which should be followed by every work place and institutions till the time any law came in to force by the parliament for this cause. Moreover, the court also cleared that by Section 32 of the constitution[iii], the court has the right to enforce fundamental rights and these guidelines will be treated as law declared by court as per section 141 of the constitution[iv].
Definition of Sexual harassment as per defined in the POSH Act
Sexual harassment of Woman at Work place((Prevention, Prohibition & Redressal) Act (The POSH Act) cleary says that no women shall be subjected to sexual harassment at workplace.[v]
According to the provisions provided in the POSH Act, Sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:— (i) physical contact and advances; or (ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature[vi].
So, in short it could be concluded that sexual harassment doesn’t only include sexually harassing a woman physically or verbally, it also includes making non verbal remarks as well. Non- verbal remarks could include harassing a woman by displaying something on the computer or by sending vulgar messages to women. This Defination of Sexual harassment was derived from the guidlines given by the court in Vishaka vs State of Rajasthan[vii].
The word unwelcome here used above is not defined in the POSH Act but in common language the word unwelcome means something which is not welcomed by someone, i.e. without the permission or will of the person. If such kinds of acts are being done by a man and woman is proved to be welcoming these kinds of happenings or is happening by her will, it will not amount to sexual harassment.
Moreover the occurrence of any of the following circumstances among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:- (i) implied or explicit promise of preferential treatment in her employment; or (ii) implied or explicit threat of detrimental treatment in her employment ; or (iii) implied or explicit threat about her present or future employment status; or (iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment likely to affect her health or safety[viii]
3. Applicability of the POSH Act
The POSH Act is applicable to every Workplace including
(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, environmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
(vi) a dwelling place or a house[ix]
Does Work from Home also come in the ambiguity of the POSH Act?
Yes
4. Complaint Procedure under the POSH Act
By the provisions given in the POSH Act, it is the duty of every employer to constitute a Internal Complaints Committee at the workplace(where there are 10 or more than 10 employees), Local Committee to be constituted by district officers where there are less than 10 employees, for unorganised sectors.
Any aggrieved woman[x] who faces any act of sexual harassment can file a written complaint can file a complaint under the act to the local committee or internal committee as the case may be[xi]. The complaint needs to be in writing only. Moreover, if a woman is unable to file a complaint due to physical or mental incapacity, her legal heir or her co worker or a member of NCW or state Women commission or any person who has the knowledge of the incident, with her written consent can file a complaint on her behalf[xii].
The complainant needs to file 6 copies of the complaint in writing to the Internal Committee or local committee as the case may be along with the supporting documents and the names and addresses of the witness[xiii]. However, the act don’t provide any specific format for filing a complaint, but one should adhere with some points while filing a complaint, some of them are: always address the complain to IC/LC as the case may be, always try to mention the date, time and location of the incident, the respondent name, respondent’s designation.
4.1. When the complaint is regarding the employer itself.
When the complaint is regarding the employer itself, it becomes the duty of the district officer to constitute a local committee as per section 6(1) of the POSH Act.
5. Time limit of filing complaint after the happening of incident
The complaint should be filed within 3 months of the date of the incident. In case there is a series of incidents followed, the complaint can be filed within 3 months of the happening of the last incident. This time limit can be exceeded on the discretion of the internal committee or local committee as the case may be ( but only by 3 months extension time for by recording the reasons in writing for the delay in filing the complaint)[xiv].
6. Constitution of Internal Committee[xv]
By the provisions of the POSH Act, it is compulsory for all premises with 10 or more than 10 employees to establish an Internal Committee in their premises. An aggrieved can directly make a complaint to the committee if she face or experience any kind of act of sexual harassment which is prohibited under the provisions provided in the POSH Act.
Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices[xvi].
6.1. The Internal Committee shall consist of the following members:-
● A presiding officer- The presiding officer should be among the employees and should be a senior level employee. Moreover if a senior level employee at one of the offices of the employer is not available, then a senior level woman employee from the other office/unit/department of the workplace of the same employer shall be nominated. It is crucial that the presiding officer should be women only.
● One Member(Minimum)- Minimum one member should be there from among the NGO/ associations committed to the cause of women/ a person familiar with the issues relating to sexual harassment.
One half of the total members of the committee should be women[xvii].
● Two Members(Minimum)- Minimum two employees should be there from the employees. It is mandatory that those two members should be committed to the cause of women/had experience in social work/have legal knowledge,
6.2.Submission of report by the Internal Committee
As per section 21 of the POSH Act read with rule 14 of the POSH Act Rules, the Internal committee shall submit the annual report in each calendar year to the employer and the district officer.
The annual report which the Complaints Committee shall prepare under Section 21, shall have the following details.
● number of complaints of sexual harassment received in the year.
● number of complaints disposed off during the year .
● number of cases pending for more than ninety days.
● number of workshops or awareness programme against sexual harassment carried out.
● nature of action taken by the employer or District Officer[xviii].
7. Local Committee
The local Committee shall be constituted by the district officer at the district level. The local committee shall be constituted at the places where there are:-
● Less than 10 workers at any workplace.
● Or the complaint is regarding the employer itself.
The local Committee shall consist of the following members:-
Chairperson- An eminent woman to be nominated who is committed to the cause of women and in the field social work.
Local Women Member- One Woman member to be nominated working in block, taluka or tehsil or ward or municipality in the district.
Other Member- Among other members, atleast one shall be a woman to be nominated from a NGO or an association committed to the cause of women or a person familiar with issues pertaining to sexual harassment *At Least one of the members should have a background in law. * At Least one of the members should be a woman belonging to the Scheduled Castes or Scheduled Tribes.
Ex- officio Member-the concerned officer dealing with the social welfare or women and child development in the district.[xix].
8. Method of reaching the complaints to Local Committee
The Complaint shall reach the local committee through:-
● nodal officer in every block taluka
● tehsil in rural or tribal area and ward or municipality in the urban area
to receive complaints and forward the same to the concerned Local Committee within a period of seven days[xx].
9. Power of complaints committee
As per the provisions of POSH Act, 2013, under section 11 sub- section 1[xxi], of the POSH Act, the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are given to a civil court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.[xxii]
The inquiry under sub-section (1) shall be completed within a period of ninety days[xxiii].
10. Other remedies available if a woman don’t want to lodge a complaint to Local committee or Internal Committee or is not satisfied by the relief sought by these committees
A woman can lodge a FIR against the wrong-doer if she wants to proceed with the criminal proceedings against the wrongdoer because the remedy given under the POSH Act is a civil remedy and not a criminal one. Moreover, if a person is not satisfied by the recommendations made by the committee, an appeal can also be made in the appeal tribunal[xxiv].
11. Conciliation/ Settlement between the parties before initiation of Inquiry
The Internal Committee or the local committee also has a right to settle or consolidate the matter between the parties before the initiation of enquiry against the respondent. But, this can only be done on the request of the aggrieved woman. Provided that no monetary settlement shall be made in conciliation[xxv].
12. Actions that can be taken during the pendency of the enquiry
The following recommendations can be made by the Internal Committee or the local committee as the case may be during the pendency of the enquiry:-
●transfer the aggrieved woman or the respondent to any other workplace or
● grant leave to the aggrieved woman up to a period of three months or
●grant such other relief to the aggrieved woman as may be prescribed.
The Employer shall implement such recommendations given by the Local Committee or Internal Committee as the case may be and send the report of such implementation to them[xxvi]
13. Report of inquiry done by the Committee
The Local Committee or Internal Committee as the case may be needs to send the findings of the report to the district officer in case of Local Committee and to the Employer in case of Internal Committee and also to the concerned parties(Complainant and Respondent) within 10 days to the completion of such inquiry. Moreover, on the recommendation send by the Local Committee or Internal Committee as the case may be, the district officer in case of Local Committee and to the Employer in case of Internal Committee shall take actions recommended by the respective committees[xxvii] or can take action as per prescribed in section 13 of the POSH Act.
14. SHOR APP
This app was launched by the district administration of Gautam Buddha Nagar, Uttar Pradesh for making the complaints of Sexual Harassment at work place in Noida, Greater Noida Uttar Pradesh. The app was launched in 2019 with a motive to keep an eye of the sexual harassment cases in the District. Moreover, it becomes mandatory for all the institutions with 10 or more than employees in the district of Gautam Budhha Nagar to register themselves under the app and submit the report about the cases received regarding the Sexual harassment. The Aggrieved woman can file a complaint online and can view the status of the complaint also through the app. The app is easily available at google play store.
15. Conclusion
Providing a safe and healthy environment for working to its employees is the duty of every employer. So, the POSH Act was implemented with the purpose so that there can be no hindrance when a woman starts working. Moreover, POSH Act also provides for the punishment(in the form of disciplinary action) against a woman who makes frivolous complaints to the committee. It’s all because the laws and statutes provided by our Government, women are able to work freely nowadays.
ENDNOTES AND REFERENCES:-
[i] (1997(7) SCC 323)
[ii] Judgement, Vishaka vs State of Rajasthan, (1997(7) SCC 323)
[iii] Section 32 of the Constitution of India, 1949- (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ), (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this constitution.
[iv] Para 24 of Vishaka vs state of Rajasthan, 1997
[v] Section 3(1) of the POSH Act.
[vi] Section 2(n) of POSH Act, 2013
[vii] (1997(7) SCC 323)
[viii] Section 3 of the POSH Act
[ix] Section 2(o) of the POSH Act.
[x] “Aggrieved woman” means. – i. in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent; ii. in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.
[xi] Section 9 of the POSH Act
[xii] Section 9(2) read with Rule 6 of the POSH Act.
[xiii] Rule 7 of the POSH Act
[xiv] Section 9 of the POSH Act.
[xv] Amendment 2016, word ‘Internal Complaints Committee’ substituted by ‘Internal Committee’
[xvi] Section 4(1) of the POSH Act.
[xvii] Section 4(2) of the POSH Act.
[xviii] Rule 14 of the POSH Act
[xix] Section 7 of the POSH Act.
[xx] Section 6(2) of the POSH Act.
[xxi] Section 11(1)- Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable: Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police: Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
[xxii] Section 11(3) of the Act
[xxiii] Section 11(4) of the POSH Act.
[xxiv] Section 18 of the POSH Act
[xxv] Section 10 of the POSH Act
[xxvi] Section 12 of the POSH Act
[xxvii] Section 13 of the POSH Act
[xxviii]http://ncwapps.nic.in/pdfReports/Sexual%20Harassment%20at%20Workplace%20(English).pdf
[xxix]https://www.iitk.ac.in/wc/data/Handbook%20on%20Sexual%20Harassment%20of%20Women%20at%20Workplace.pdf