COMPLIANCE UNDER THE PREVENTION OF SEXUAL HARASSMENT ACT, 2013
WHAT IS POSH AND IT’S GENESIS?
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“POSH Act”) was enacted by the Ministry of Women and Child Development, India with effect from December 9, 2013. The POSH Act along with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”) upheld the rights guaranteed under Articles 14 (Right to equality before the law), 15 ( right to practice any profession) and 21(right to life with dignity) of the Constitution of India, 1950.
The POSH Act was enacted with the prime objective of protecting women from workplace sexual harassment. The glaring gap in the Indian legislation vis-a-vis sexual harassment at workplace, identified by the Vishaka judgement, was finally plugged by the POSH Act.
The Vishaka Judgement
Sexual harassment at the workplace was for the first time recognised as a human rights violation by the Supreme Court in the case of Vishaka & Ors. v. State of Rajasthan & Ors. (199 (7) SCC 323) (“Vishaka Judgement”). Bhanwari Devi, a social worker in a development programme initiated by the State government aiming to curb the evil of child marriage, tried to stop a child marriage from taking place in a Gujjar family. The marriage took place despite her protests and she was gang-raped by five men including the father of the infant who was married off. After the trial court acquitted the accused, an organization, Vishaka, along with other organizations, rallied for special measures to deal with sexual harassment inflicted in the course of employment. The Supreme Court accepted the petition filed by these NGOs and in absence of specific legislation laid down guidelines to be followed in cases of sexual harassment at workplaces.
In framing the Vishaka Guidelines, the Supreme Court placed reliance on the Convention on Elimination of All Forms of Discrimination against Women, 1979, which India had both signed and ratified. As per the Vishaka Judgment, the Vishaka Guidelines issued under Article 32 of the Constitution, would mandatorily be followed by all originations until a legislative framework on the subject has been drawn-up and enacted.
The legislative void continued and the Supreme Court in Apparel Export Promotion Council v. A.K Chopra ((1999) 1 SCC 759) reiterated the law laid down in the Vishaka Judgment. Dr. Medha Kotwal of Aalochana (an NGO) highlighted a number of individual cases of sexual harassment stating that the Vishaka Guidelines were not being effectively implemented. Converting the letter into a writ petition, the Supreme Court took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country. The Supreme Court asserted that in case of a non-compliance or non-adherence of the Vishaka Guidelines, it would be open to the aggrieved persons to approach the respective High Courts.
The Protection of Women against Sexual Harassment at Workplace Bill was tabled in the Lok Sabha in December 2010 and referred to the Parliamentary Standing Committee on Human Resources Development. The committee submitted its report on November 30, 2011. In May 2012, the Union Cabinet approved an amendment to include domestic workers. The amended Bill was finally passed by the Lok Sabha on 3 September 2012.
WHO FALLS WITHIN THE PURVIEW OF POSH?
The POSH Act is applicable to all workplaces whether a government body or a non- government entity that is situated in India irrespective of nature of work. The POSH Act is applicable to any establishment with more than 10 employees. The POSH Act is very much applicable even in cases where there are only male employees in the workplace.
WHY SHOULD YOU BOTHER?
It goes without saying that a safe working environment facilitates better output. Moreover, non- compliance of the provisions of the POSH Act is a punishable offence with a fine up to Rs. 50,000/-. This fine can be doubled in case of a repeat offence. Certain non-compliances may also lead to cancellation of licence or registration required for carrying on business in certain cases.
Apart from non-complaince fines, there is also the threat of penal damages in cases of sexual harassment. Recently, the Madras High Court directed a company to pay Rs 1.68 crore as damages for sexual harassment to an aggrieved woman. In another case, the Delhi High Court directed the Delhi Public School Society (DPSS) to pay Rs 8.50 lakh as compensation to four of its former women employees who were removed from their jobs, and for failing to take action against the school principal who sought sexual favours from them.
The Karnataka state labour department has also imposed a monthly penalty of Rs 50,000 for five years on a senior manager of IP Infusion Software India Private Limited, Bengaluru, who is facing charges of sexual harassment. The department also directed the company not to promote him or give him any hike for the next three years.
The POSH Act defines sexual harassment under Section 2(n) as (1) physical contact and advances; (2) a demand or request for sexual favours; (3) making sexually coloured remarks; (4) showing pornography; (5) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. The POSH Act also covers concepts of ‘quid pro quo harassment’ and ‘hostile work environment’ as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment.
It is not gender neutral legislation and protects only women. As per the POSH Act, an ‘aggrieved woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment.
An employer has been defined as any person who is responsible for management, supervision, and control of the workplace and includes persons who formulate and administer policies of such an organisation under Section 2(g).
The provisions of the POSH Act are applicable to workplaces that fall under Section 2(o) as private sector organisation / private venture / undertaking / enterprise / institution / establishment / society / trust / non-governmental organisation / unit or service provider and places visited by employee (arising out of or during the course of employment, including transportation provided by employer for undertaking journey). The POSH Act tries to give a wide meaning to the word workplace and goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve tele-commuting will get covered under the POSH Act.
COMPLIANCE UNDER POSH ACT
An employer faces certain duties under the POSH Act such as the following:
Internal Complaints Committee
The first directive that is given to an employer under the POSH Act is that of forming an Internal Complaints Committee (“ICC”) in case the organisation has 10 or more employees. If the number of employees is less than 10 then the complaint shall be directed directly to the Local Committee of that area.
Constitution of the ICC
Any workplace that has more than 10 employees or more is required to form an ICC where their office is situated. In case the office has branches at different locations than every branch is required to have an ICC. Therefore an ICC is required at every administrative unit or division.
The composition of the ICC requires a minimum of four members of whom at least half the members are women at any point of time. A presiding officer has to be appointed who must be a woman at a senior level in the office. At least 2 members from are to be appointed from amongst the employees, preferably those who have experience of working with women related causes or have legal knowledge. Further, an external member has to be appointed who is either a member from an NGO or an association that is committed to women’s cause or the cause of sexual harassment or an advocate.
The term of the ICC Members shall not exceed 3 years. And a minimum of 3 Members of the ICC including the Presiding Officer are to be present for conducting any inquiry.
Sexual Harassment Policy
The employers are responsible for complying with prevention, prohibition & redressal of sexual harassment at workplace. This requires that the employer shall have to frame policies for sexual harassment cases which will help them in prevention, prohibition & redressal of sexual harassment of women at the workplace.
Complaints under the ICC
An aggrieved woman can file a complaint within 3 months of the taking place of the incident. The ICC before starting with the inquiry should give both the parties a chance to reconcile between themselves.
If there is no reconciliation then in such a case the ICC should hear both the sides and decide the case within 90 days time limit and prepare a report giving its recommendations on the matter. The organisation shall then have to act upon the recommendations within 60 days. If the aggrieved person is not satisfied with the decision then they can appeal in front of the appropriate authority.
The employer is obligated to file a report every financial year. The Annual report should contain details of all the complaints of sexual harassment in the previous year. The Annual report has to be approved by the Board of Directors and shareholders with a declaration by them that necessary steps were taken in case of a complaint as directed under the POSH Act.
Section 19 of the Act incorporates a few other responsibilities that the employer has to perform to make the work environment for women safe and non-discriminatory-
The employer should provide protection from external persons to guarantee a safe environment,
The employer should ensure that all the employees are aware of the penal consequences of sexual harassment at workplace and that of ICC,
All the facilities for a smooth running of ICC or Local Committee should be ensured,
The employer should ensure that all the necessary details in case of an inquiry are provided for to the ICC or the Local Committee
The employer should assist the aggrieved women and ensure timely submission of reports by the ICC.
Penalty for Non- Compliance
Non-compliance of the Act shall result in a fine of Rupees 50,000 in the first instance and in case of repeated offence twice the fine and in some cases even cancellation or withdrawal of the business licenses or registrations.
Compliance with the Vishaka guidelines was mandatory. With the POSH Act coming in they have gained legislative backing, thus acquiring more teeth. Penalties and punishments can be levied on the employer for non-compliance. As a small business owner it would bode well to be compliant. From a legal point of view the employer would be safe and in the long run you would have laid the foundation for safe work conditions which would in turn bolster better output and strengthen your business. Make gender equality part of your core values to further your growth and attract the best talent!
(With research inputs from Ms. Mamta Bhadu, Army Institute of Law (AIL), Mohali)