This article has been written by Vikash Singh, 4th year Student of B.A.LL.B of the IIMT College of Law, Greater Noida, Uttar Pradesh.
PREFACE:
After the independence of India, the condition of women is good but not absolutely the best because the women of India are facing much trouble, and sexual harassment in the workplace is one of them trouble. It is true that women in most workplaces are facing sexual harassment which is an attack on their dignity. The women of India don’t get an environment that is free from fear and sexual harassment.
The right to life is given to us by the Constitution of India. And the constitution gives us a right to equality. The right to life contains the right to live with dignity and respect. Women face sexual harassment in the workplace, it is, a violation of the constitutional rights of women in India. It is also a violation of natural rights and it is also considered as discrimination. Women suffer due to harassment in working place. The Indian parliament passed the act named Sexual Harassment of Women at Workplace Act, 2013 to tackle the menace of sexual harassment in the workplace.
The following definition is given under section 354A of the Indian penal code A man committing any of the following acts ∙ Physical contact and advances involving unpleasant/unwelcome and unequivocal sexual preludes; or ∙ A demand or request for sexual favours; or ∙ Showing pornography against the will of women; or ∙ Making sexually multi-coloured reflections, shall be the shame of the offense sexual importunity. There were three sections in the Indian penal code S.94, S.354 and S.509 to deal with such types of crimes like sexual harassment of women. illustration of sexually draining geste include: ∙ Unwelcome/unpleasant touching ∙ Suggestive comments/commentary or jokes ∙ Sexually explicit picture or posters ∙ Staring or leering ∙ Requests for coitus or sex ∙ Unwanted invitations to go out on dates ∙ Sexually explicit emails or SMS text messages ∙ Sexually explicit physicals contact ∙ Insults or taunts based on sex ∙ Unnecessary familiarity, similar as deliberately brushing up against a person ∙ protrusive question about a person’s private life or body
OBJECTIVE OF THE ACT
The objective of the act is to provide safe, secure and enabling environment to every woman at the workplace and her employment status free forms of sexual harassment. As it is defined under section 10 of Indian penal code that a woman a female human being of any age. Another object is to correct the responsibility of the employer as well as the district officer by laying down a statutory redressal medium. Thus, the objectives can be summarized as under:
- Protection against sexual harassment of women in the workplace.
- Prevention of sexual harassment at the workplace.
- Redressal of complaints of sexual harassment.
- To deal with the matters connected therewith or incidental thereto.
FEATURES OF THIS ACT
- The Act describes in detail sexual harassment at the workplace and makes a medium or system for redressal of complaints. It also provides safeguards against false or vicious charges.
- The Act also covers generalities of ‘quid pro quo importunity’ and hostile work terrain’ as forms of sexual harassment if it occurs in connection with an act or gesture of sexual harassment.
- The description of “aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of their age or employment status, whether in the organized or unorganized sectors, public or private, and covers guest/clients, customers, and domestic workers as well.
- An employer has been defined as any person who is responsible for the operation/management, supervision, and control of the plant and includes persons who formulate and administer programs of such an organization under Section 2(g).
- While the “plant of workplace” in the Vishakha Guidelines is confined to the traditional office set-up where there is a clear employer-worker relationship, the Act goes much further to include organizations, departments, offices, branch units, etc.
- The commission is needed to complete the inquiry within 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are commanded to take action on the report within 60 days.
- Every director demands to constitute an Internal Complaints Commission at each office or branch with 10 or more workers. The District Officer is demanded to constitute an original Complaints Commission at each district, and if needed at the block position.
- The Complaints panels have the power of civil courts to gather substantiation.
- The Complaints panels are needed to give for conciliation before initiating an inquiry if requested by the plaintiff.
- The inquiry procedure under the Act should be nonpublic and the Act lays down a fine of Rs 5000 on the person who has infringed confidentiality.
- The Act requires employers to conduct education and sensitization programs and develop programs against sexual harassment, among other obligations. The objective of mindfulness structure can be achieved through Banners and bills displayed in the premises, eLearning courses for the workers, directors, and Internal Committee members, Classroom training sessions, Communication of Organizational Sexual importunity Policy through emails, eLearning or Classroom Training. It is recommended that the eLearning or Classroom Training be delivered in the primary communication language of the hand.
- Every association must file an annual report to the District Officer every timetable time as specified in Rule 14 of the Sexual Harassment of Women at Workplace Rules, 2013.
- Penalties have been specified for employers. Non-compliance with the vittles of the Act shall be punishable with a fine of up to ₹ 50,000. Repeated no peace may lead to higher penalties and license cancellation or deregistration to conduct business.
- The government can order officers to check plants and records related to sexual harassment in any association.
- Under the Act, which also covers scholars in seminaries and sodalities, as well as cases in hospitals, employers, and original authorities, will have to set up grievance panels to probe all complaints. Employers who fail to misbehave will be penalized with a forfeiture of over Rs. 50,000.
DOWNSIDES OF THE ACT
Every piece of statute has its pros and cons, just like any other law. The POSH Act was introduced in India in 2013 to produce a safe and secure plant for women and help resolve cases of sexual harassment. However, as with any law, there are some lacunas or fields where the POSH Act could be bettered.
In order to estimate the POSH Act loopholes, a thorough analysis of the law and its perpetration in colorful jurisdictions is necessary. The following are some of the downsides that need to be addressed:
Gender inequality: One of the main reviews of the posh act is that it doesn’t involve sexual importunity cases related to men. PoSH Act 2013, rather than driving gender equality at the plant is driving an unnoticeable wedge between the two genders.
If a business wishes to set up a commission to interrogate into sexual harassment claims against men, they need to set it up separately as well as create a separate policy on sexual harassment claims by men.
However, it may prove tedious and expensive, and can come infeasible for launch-ups or businesses with several votes or services or units spread across different regions.
False Complaints: Another review of posh act is that, Men have a lot of anxiety against the POSH Act. They feel that the law could be used by unconscionable women to settle scores in the plant against individuals whom they disliked.
Men are now solicitude of speaking with their female associates. They feel scared about giving feedback to female hands alone. Clear signs of undetermined discomfort and thus disinterest among men led to reduced efficacity in the perpetration of POSH across associations..
Anonymity: No complaint regarding sexual harassment can be made anonymously. Although the SHE Box, does not allow for filing anonymous complaints which may be largely necessary for a country wherein women face a lot of smirch when they have to identify a perpetrator.
External member: As per the PoSH Act and rules thereunder, an external member of the IC may be a person familiar with the issues relating to sexual importunity. still, the participation of a counsel as an external member of the IC was successfully challenged before the Rajasthan HC, leading to confusion on who could be an applicable external member.
Monetary Penalty: In the case of any sexual harassment by the aggrieved person, complaint has been proved, the criteria for determining a monetary fine under the PoSH Act remains vague and remains. In the absence of clarity, the ICC would find it grueling to arrive at a precise monetary quantum to be paid by the replier to the plaintiff.
Annual Report: Further according to the Companies (Accounts) Amendment Rules, 2018, now the board of a company has to mandatorily expose in its report that it has complied with vittles relating to the constitution of Internal issues Commission under the Act. This increases the Directors’ burden and can lead to businesses not incorporating themselves.
CASE-LAW RELATING THIS ACT
- Vishakha vs. State of Rajasthan:
- Apparel Export Promotion Council vs. A.K. Chopra
- Poornima Advani vs. Union of India
- Sanchayani Sharma vs. National Insurance Company Ltd:
- Madhu vs. State of Kerala
- Anjali Bhardwaj vs. Union of India
- CICI Bank vs. Vinod Kumar
- Kamaljeet Kaur vs. Punjab and Sind Bank
CONCLUSION
In India, we see women from different classes (advanced, middle, and lower). They may be educated or uninstructed, stepping out of their houses daily for work. We are apprehensive that we live in a patriarchal society, though it is changing, but the change is extremely slow. Managing both family and work is a delicate task, but despite that, she takes care of multiple effects at a time and tries to do everything impeccably. This multitasking provides a large amount of physical as well as mental stress. Hence, it is her right to have a plant terrain where she faces no discrimination, feels secure, has a positive atmosphere, and, overall, no sexual harassment. If she is not handed all these, it is a violation of her fundamental rights of gender equality and the right to life and liberty. We need to produce mindfulness among the women and encourage them to come forward and complain. Society needs to change its way of thinking, and they need to support the victim and not restrain her and put restrictions on her. Most of the time, incidents are not reported due to shame, family pressure, smirch, fear, and numerous other reasons. Family support is the first step if she is facing harassment; secondly, the terrain at work should also be probative. It is compulsory to be conveyed to their that it was not their mistake. Prompt action in similar cases is the key and no way should the need arise where women have no other option other than to quit their work at workplace.
