Protection of Women from Sexual Harassment Act (POSH), 2013
Background:
The POSH Act was passed in 2013. It was quite late since it took parliament 16 years to put into effect the ruling that was handed down by the court in the historic Visakha v. State of Rajasthan case in 1997. Where the laws and regulations protecting women at work came from. Since being late is preferable to being never, this act was created.
According to the legislation, the delay was caused because lawmakers did not want to add further new jurisdiction to an already overburdened judicial system. In order to implement the act and protect women at work, it was decided to form committee known as Internal Complain Committee.
The IPC was also amended and new section 354A was inserted to make sexual harassment a criminal offence.
Case behind the formation of this act.
Bhanwari Devi case: Bhanwari Devi worked as a social worker for the Rajasthani government’s Rural Development Programs. In 1992, upper-caste males’ gang-raped her in front of her husband after she tried to prevent child marriage in their family. They were furious by her efforts. Following this incident, there was a significant public uproar, which paved the way for new regulations preventing sexual harassment of women at work. In a Public Interest Litigation (PIL), social activists asked the Supreme Court to order businesses to always safeguard their female employees and provide safer workplaces for them. The Supreme Court addressed the glaring deficiency and created the Vishakha principles in the 1997 decision Vishakha v. State of Rajasthan.
What the act defines:
- The definitions of ‘employer’ and ‘workplace’ under the Act are wide enough to cover every possible organisation and workplace in the private and public sectors.
- under the Act, an ‘aggrieved woman’ is a woman of any age, whether employed or not, alleged to have been subjected to the act of sexual harassment.
- This act also tells us about that the sexual harassment allegations are maintainable against an individual of the same gender as well.
What new established under this act:
- According to the Act, every organisation must have a minimum of a four-member IC, of which one must be the Presiding Officer and one must be an external member from a non-governmental organisation who is knowledgeable about sexual harassment issues and has at least five years of social work experience.
- According to the Supreme Court’s clarification, there is also a requirement for an external member, whose goal is to guarantee that an impartial person is on hand to support, counsel, and aid the IC.
- constitute an IC with five members in order to prevent a tie or stalemate in the event of disagreements. The IC should also have two external members, at least one of whom should have legal or judicial experience. According to the Rules, the IC must have a quorum of three members or more, including the presiding officer. Strangely, neither the presence of an external member at the IC meeting, nor the presence of a majority of women members, are necessary requirements for the quorum.
- It is advisable to form an IC with five members in order to prevent a deadlock in the event of disagreements.
- the IC is required to adhere to the principles of natural justice while making an inquiry
Problems In implementation of the POSH Act:
•Inadequate of the Internal Complaints committee
The Civil Court has granted the IC jurisdiction to conduct the investigation and evaluate the evidence, and the law has charged it with the responsibility of upholding the Act and Rules. Members of the IC lack significant practical experience in handling such formal and complex matters. As a result, countless inquiry reports are challenged in the High Courts through writ petitions filed in accordance with Article 226 of the
Constitution.
• Confidentiality
Employer must maintain strict discretion. The Act prohibits disclosing any investigation-related material to the press, general public, or media. Information always leaks, either to the media or within the organization, which puts undue pressure on all parties involved, including the IC members.
• Absence of gender neutrality
Unfortunately, the Act has no provisions for other employees who may encounter sexual harassment at work. In Section 2(a)[3], a woman who alleges to have experienced sexual harassment is referred to as an aggrieved lady. Section 3[4] states that no woman shall be the target of sexual harassment at any job. The Act thereby forfeits any chance for the redress of issues raised by men or LGBTQ+ individuals by limiting its application to only women.
•Fear of Retaliation
Most people believe that speaking out against the harasser could result in social stigma, embarrassment, and even more harassment. If the woman complains about a senior employee, these difficulties are exacerbated, raising the likelihood of animosity from coworkers or supervisors, a poor reference for potential employers, or even job loss. This archaic practice of “victim blaming and silencing” fosters an atmosphere in which the victim feels defeated, afraid, and suffers long after the terrible crime has taken place. The list of activities that the employer may conduct while the investigation is ongoing is found in Section 12 (5). These include moving the offended woman, giving her leave for up to three months, or providing any other proposed relief. However, there seems to be a lack of measures to promote a healthy environment and secure the working conditions of the woman in case she chooses to continue her tenure in the same place as the incident.
• Lack of expertise of the IC
The IC has been given the authority of the Civil Court to conduct the inquiry and review the evidence, and the law has placed the burden of enforcing the Act and Rules on it. Members of the IC have little to no practical expertise in dealing with such delicate and formal issues. Because of this, numerous enquiry reports are contested in the High Courts via writ petitions submitted in accordance with Article 226 of the Constitution.
Many of these reports are rejected because they don’t adhere to natural justice’s standards, which the IC members may not even be aware of. It appears that the Act and the Rules have a fundamental design problem in this regard. The IC is in charge of conducting an investigation, the findings of which could have a profound effect on both the accused and the aggrieved.
• Corner Office Harassment
When a complaint is made against a member of the company’s senior management, such as the CEO or CFO, the IC members have occasionally shown reluctance to undertake a fair investigation. This is a practical issue with putting the Act into practice, because it casts doubt on the impartiality and objectivity of the IC members.
• Confidentiality
Employer is required to uphold strict discretion. According to the Act, no information pertaining to the investigation may be disclosed in any way to the press, public, or media. In reality, it has been discovered that information always leaks within the organization or to the media, putting undue pressure on all parties, including the IC members.
• How to deal with electronic evidence?
One key concern is how the IC should handle electronic evidence, such as WhatsApp conversations between the victim and the accused, video recordings, etc. The ICC frequently receives printed copies of the exported WhatsApp conversations between the victim and the accused.
The rigorous standards relating to the admissibility of electronic evidence established under Section 65B of the Indian Evidence Act, 1872 would not apply to the IC proceedings because they are not strictly “judicial” in nature. Therefore, it will not necessarily be necessary to get a “certificate” when secondary copies of electronic records are made (such as email copies of WhatsApp discussions).
However, if the accused has not questioned the validity or reliability of the email copies in question, may the ICC in such circumstances automatically rely upon them? Will the IC be required to independently confirm that the WhatsApp conversation snippets are accurate and unaltered? Another concern is whether the IC will be required to independently confirm the legitimacy of such secondary copies before or after the accused disputes it.
Given the importance of electronic evidence in the modern day, it is essential that the SC issue a definitive ruling that resolves these open-ended issues.
Conclusion:
The Act has been crucial in ensuring that victims report alleged instances of sexual harassment with more confidence. Given the consequences to their finances and reputation that come with improperly processing complaints under the Act, businesses should make every effort to raise knowledge of their POSH Policy and to ensure that it is followed throughout the whole company. Organisations must routinely implement training and awareness campaigns that target both IC members and female employees.
Since the IC is the centre of the Act, it is crucial that it receives legal training and education in order to fulfil its quasi-judicial duties. This will ensure that the Act and Rules are implemented effectively. A positive step would be to amend the Act to require the appointment of at least one IC member with legal experience.
Rapid change in the workplace has made a zero-tolerance stance for sexual harassment of women at work even more necessary. The Vishaka recommendations have witnessed considerable developments by the government in India, where the POSH Act represents a crucial turning point in the evolution of gender equality law. All businesses are now legally expected to prevent sexual harassment, protect female employees from it, and support them in filing complaints if it occurs. It is evident that the Act has not taken into account the fact that the majority of women are employed in the informal sector, in contrast to the scenarios covered above. Most of them have been kept outside the protective cover of this law. This includes the women employed in rural areas, small enterprises, unorganised sectors, flexible workplaces, self-employed and those working in home-based industries.
