POSH ACT 2013-A SAFETY NET for WOMEN AT WORK
An article on “POSH ACT 2013-A SAFETY NET for WOMEN AT WORK” has been written by Dr. Abhilasha Khare, Assistant Professor of MIES R M Law College, which is an excellent law college in Bengal. MIES R M Law College is one of the best law colleges in West Bengal, situated at Sonarpur, South Kolkata. MIES R M Law College, Kolkata has completed many years of its glorious journey in the field of law education. This College is one of the best legal education providers in India. MIES R M Law College is one of the topmost Law Colleges in West Bengal under Vidyasagar University and is approved by the Bar Council of India.
POSH ACT 2013- A SAFETY NET FOR WOMEN AT WORK[1]
Abstract
Every human being has a right to live with dignity without facing harassment of any kind including sexual harassment. But, time and again we witness incidents of sexual harassment and women are a victim of such abuse in the domestic as well as workplace domain. Above all, Sexual harassment is unwelcome sexual behavior done by anyone towards the victim which leaves a long-term physical. As well as a psychological adverse impact on the sufferer. This article aims to briefly discuss the sexual harassment of women which takes place in the workplace and the legal provisions regarding it.
Keywords- Sexual Harassment, Sexual Harassment of Women, Sexual Harassment of Women at Workplace, Vishakha Guidelines, POSH Act, 2013.
Introduction of A SAFETY NET for WOMEN AT WORK:
Women are a vulnerable section of society who suffer from various atrocities like sex trafficking, female infanticide, sexual harassment, etc. Sexual abuse of women takes place in the domestic arena as well as their workplace. Sexual harassment of women at the workplace can be defined as an unwelcomed behavior of sexual nature towards a woman at her workplace. Such sexual behavior can be of any nature physical, verbal, written, etc. Whenever the term ‘unwelcome’ is used, it does not always denote a nonconsensual act, it is also related to a consensual act where the consent of the women is not given freely. Acts of physical contact, physical advances, sexually colored remarks, showing or making pornography, and request for sexual favors. Or any other sexual act done at the workplace comes under the category of sexual harassment at the workplace.
The Protection of Women from Sexual Harassment at Workplace Act, 2013 is popularly known as POSH Act, 2013 (hereinafter referred to as the POSH Act, 2013). This is a landmark legislation that aims at protecting women from any kind of sexual harassment in the working arena. Moreover, This Act provides for a safe and secure working environment for women and also talks about the mechanisms and redressal for sexual harassment in the workplace.
A SAFETY NET for WOMEN AT WORK – Background of the Act
The POSH Act, 2013 has superseded the Vishaka Guidelines which have laid down procedures that are to be followed in cases of sexual abuse in the workplace. The Vishaka and Others v. State of Rajasthan[2] is a landmark judgment regarding sexual harassment of women in the workplace. This case was brought before the Supreme Court of India owing to the impotence of the High Court of Rajasthan in providing justice to a brutal gang rape victim Bhanwari Devi. She was a member of a Women’s Development Program of the Rajasthan Government who was gang raped for stopping child marriage.
The Supreme Court of India had made it mandatory for all workplaces to adhere to the Vishaka Guidelines till the enforcement of legislation to this effect. A Bill regarding the protection of women from sexual harassment in the workplace was first introduced by Krishna Tirath, the Women and Child Development Minister in 2007. The Bill received the Cabinet approval in the year 2010. Domestic workers were included in it in the year 2012 and the amended bill was finally passed by the Lok Sabha on September 03, 2012. In the year 2013, the Bill was passed by the Rajya Sabha and the President gave the assent on April 23, 2013.
Description of the Act:
The POSH Act, 2013 is specific legislation safeguarding women from sexual harassment at workplaces and makes it mandatory for employers to provide a safe working environment to female employees. The Act also provides for the establishment of the Internal Complaints Committee (ICC) in every organization for the redressal of sexual harassment complaints.
The Preamble of the Act says that it is,
“An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;
AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognized human rights by international conventions and instruments such as the Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June 1993 by the Government of India;
AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.”
The POSH Act, 2013 in a Nutshell:
The Act provides a definition of Sexual Harassment under Section 2(n) as any act which “includes any one or more of the following unwelcome acts or behavior[3] namely:-
- physical contact and advances; or
- a demand or request for sexual favors; or
- making sexually colored remarks; or
- showing pornography; or
- any other unwelcome physical, verbal, or non-verbal conduct of sexual nature;
The Vishakha Guidelines defined the workplace as a traditional office set-up where the employer-employee relationship was clearly stated. The POSH Act, 2013 goes into a deeper parlance to establish a definition of workplace including organizations, departments, offices, and branch units in the public as well as private sectors. Hospitals, nursing homes, sports institutes, educational institutes, sports complexes, stadiums, and any places visited by the employee during the course of employment are also included under the definition of workplace.[4]
The POSH Act – A SAFETY NET for WOMEN AT WORK
The Act provides that an aggrieved woman[5] protected under the Act shall cover all women irrespective of their age, employment status, and working sector[6] and covers clients, customers, and domestic workers.[7]
The definition clause also provides a clear definition of the employer as any person responsible for management, supervision, and control of the workplace. Therefore, It also includes people who are entrusted with the formulation and administration of the policies.[8]
The Act of 2013 – A SAFETY NET for WOMEN AT WORK
The Act of 2013 provides for the formation of an Internal Complaints Committee[9] at each office and its branch with a constitution of 10 or more employees. The District Officer shall constitute a Local Complaints Committee at each district and block level. The committee shall conduct a confidential inquiry and complete it within 90 days and its report shall be sent to the employer or the District Officer. Such employer or district officer shall take action on the report within 60 days. Such Committees are entrusted with the powers of civil courts for gathering pieces of evidence. Moreover, They are also required to initiate a Conciliation proceeding before an inquiry if requested by the complainant.
Creating awareness about the provisions of this Act is also given utmost importance and thus it requires employers to organize education and sensitization programs. Banners, posters, and e-learning courses are the aids that can be used for creating awareness among the employees, managers, and committee members. Classroom training sessions and communication of the Organizational Sexual Harassment Policy shall be done in the primary communication language of the employee. Making policies regarding sexual harassment is a mandate for employers under the Act. Non-compliance with the provisions of the Act is punishable with a fine of up to Rs 50000/- and repeated offenses shall be punished with higher penalties and may even lead to cancellation of the license or deregistration of the business.
Loopholes in the POSH Act, 2013:
The POSH Act, 2013 is basically structured to focus on women’s issues. It only caters to cis-gendered, heterosexual women leaving aside transwomen and queer women. Moreover, the benefits of the Act are being provided only to the privileged women in the formal sector and the marginalized ones are neglected. Due to such reasons, the cases go unreported thereby leading to a weak justice provision mechanism.
Conclusion and Suggestions:
Conclusively, the POSH Act, 2012 is a crucial step taken by the legislature to curb the menace of sexual harassment in the workplace. It ensures a safe and harassment-free environment at the workplace for employees all over India according to International standards. The Act follows a zero-tolerance policy towards sexual harassment in the workplace. It has created a significant impact at the workplaces in India providing the victims with proper legal protection.
Nevertheless, Some drawbacks in the present Act have been highlighted by the author and the suggestions to deal with them are also being provided hereunder-
- The enforcement of the POSH Act, 2013 has to be strengthened.
- The proper implementation of the Act in the organized as well as unorganized sectors shall be done.
- A healthy environment shall be created in the organizations where the victims can bring their complaints without any fear.
- The ambit of the Act shall be increased so as to include transwomen and queer women victims.
- A proper checks and balances mechanism shall be created to work with the organizations to ensure proper implementation and accessibility of the POSH Act, 2013.
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References 1:
[1] Dr. Abhilasha Khare, Assistant Professor, MieS RM Law College, Kolkata (West Bengal)
[2] AIR 1997 SC 3011.
[3] Whether directly or by implication.
[4] Section 2(o) workplace includes- (i) any department, organization, 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 organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, 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.
References 2:
[5] Section 2(a)- 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 dwelling place or house, a woman of any age who is employed in such a dwelling place or house.
[6] Organized or unorganized, public or private.
[7] Section 2 (e) domestic worker means- a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part-time, or full-time basis, but moreover, does not include any member of the family of the employer.
[8] Section 2(g) employer means- (i) in relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit of the appropriate Government or a local authority, the head of that department, organization, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf; (ii) in any workplace not covered under sub-clause (i), any person responsible for the management,
supervision, and control of the workplace. Explanation- For the purposes of this sub-clause “management” includes the person or board or committee responsible for formulation and administration of policies for such organization; (iii) in relation to the workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees; (iv) in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of a domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker.
[9] See Section 4 of the POSH Act, 2013.
