Prevention of Sexual Harassment (PoSH) Act

• Context (IE | TH): The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act or PoSH Act has completed ten years of its implementation.

About PoSH Act

• The Prevention of Sexual Harassment (PoSH) Act or Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act was enacted in 2013 to implement the Vishakha guidelines.
• The PoSH Act covers concepts of quid pro quo (a favour or advantage granted in return for something) harassment and hostile work environment as sexual harassment.
• Under the Act, an employee is defined not just in accordance with the company law.
  • All women employees, whether employed regularly, temporarily, contractually, on an ad hoc or daily wage basis, as apprentices or interns, or even without the knowledge of the principal employer, can seek redressal for sexual harassment in the workplace.
• Applicability: Public and Private sector, government and non-government sectors and organised and unorganised sectors. Even non-traditional workplaces and places visited by employees for work are covered under the Act.
• A woman can file a written complaint to the internal or local complaints committee within three to six months of the sexual harassment incident.
• It also makes the employer duty-bound to organise regular workshops and awareness programmes to educate employees about the Act and conduct orientation and programmes for ICC members.
• If the employer fails to constitute an ICC or does not abide by any other provision, they must pay a fine of up to ₹50,000, which increases for a repeat offence.
• The PoSH Act defines sexual harassment to include
  • Unwelcome acts such as physical contact and sexual advances,
  • A demand or request for sexual favours,
  • Making sexually coloured remarks,
  • Showing pornography and
  • Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
• It also lists down five circumstances that would constitute sexual harassment if they are connected to the above-mentioned acts
  1. Implied or explicit promise of preferential treatment in employment
  2. Implied or explicit threat of detrimental treatment in employment
  3. Implied or explicit threat about present or future employment status
  4. Interference with work or creating an intimidating offensive or hostile work environment and
  5. Humiliating treatment likely to affect health or safety.
• The Act mandates regular workshops and awareness programmes by the employer to educate employees about the Act and conduct orientation and programmes for ICC members.
• Penalties: Non-compliance with the provisions of the Act shall be punishable with a fine upto Rs 50,000, cancellation of registration to conduct business in case of repeated violations.

District Officers under the PoSH Act

• The PoSH Act mandates States to appoint an officer in every district who would play a “pivotal” role in implementing the Act.
• Sections 5 and 6 of the POSH Act detail that the District Officers would constitute Local Complaints Committees (LCCs).
• LCC will receive complaints from women employed in small establishments with less than 10 workers or cases in which the assailant is the employer himself.
• A District Officer’s responsibilities included appointing nodal officers under the Act in rural, tribal and urban areas.

Safeguard mechanisms under the PoSH Act

Internal Complaints Committee (ICC)

• The law requires any employer with over ten employees to form an ICC.
• Any female employee can approach ICC and file a formal sexual harassment complaint.
• ICC has to be headed by a woman, have at least two women employees, another employee, and a third party such as an NGO worker with five years of experience.
• The ICC has powers similar to civil court, and the inquiry process complies with the “principles of natural justice.”

Local Area Committee (LAC)

• The Act mandates the Local Area Committee (LAC) in every district to receive complaints from women working in firms with less than ten employees and from the informal sector, including domestic workers, home-based workers, voluntary government social workers, etc.
• There are two ways to resolve the issue by the committee:
  1. Conciliation: Between the complainant and the respondent (which cannot be a financial settlement),
  2. Inquiry: Committees could initiate an inquiry, taking appropriate action based on the findings.

Annual Audit Report

• The employer has to file an annual audit report with the district officer about the number of sexual harassment complaints filed and actions taken at the end of the year.

Successes of the PoSH Act

• Increase in the number of complaints filed.
• Increased conviction rate (increased about 5 times from 2014-21).
• Increased compensation to victims of sexual harassment.
• Increase in the number of ICCs (increased more than 1.5 times from 2014-21).

Lacunae of PoSH Act

• Gender Neutrality: The PoSH act is not Gender Neutral. The safeguards under the POSH Act do not apply to ‘men victims’.
• Appointment of District Officers: The SC directed appointing district officers in each district within their territorial jurisdiction, as contemplated under Section 5 of the PoSH Act.
• This was due to the realisation that treating Section 5 as a directory would leave a gaping hole in the otherwise clearly delineated workflow and redressal mechanism.
• Lack of awareness: The lack of clarity about how to conduct inquiries, lack of awareness about ICC and whom to approach have ended up duplicating the access barriers associated with the justice system.
• Fear of retaliation by women, lack of confidence in the process and its outcome.
• No centralised data maintained regarding cases of harassment of women at workplaces.
• Inquiry Process: Many a times, the inquiry process has been done in a “hurry” without adherence to the principles of natural justice.
• Unorganised nature of workforce: Law is largely inaccessible to women workers in the informal sector as more than 80% of India’s women workers are employed in the informal sector.
• Legal and procedural complexities: The PoSH Act and its procedures involve legal complexities that can be challenging for victims to navigate.

Credits: Economic Times

Way Forward

Recommendations of Justice Verma Committee (2013)

• An Employment Tribunal must be set up instead of ICC. The tribunal need not function as a civil court but may choose its own procedure to deal with each complaint.
• Removing time limit of 90 days and imposing penalties for wrong complaints.
• Broaden the definition of sexual harassment by including stalking, cyber-harassment, and unwanted physical contact.
• Establish a Separate Forum for the adjudication of cases of sexual harassment composed of experts on sexual harassment and independent of the employer.

Other Recommendations

• Defining workplace: The PoSH policy should clearly define a ‘workplace’, which today extends to an employee’s home and should cover employees, clients, vendors, and trainees of the organisation.
• Inclusion of Both Genders: Companies should review the policy to include men and women.
• Clear Articulation for Filing a Complaint: The policy should clearly articulate how the aggrieved can file a complaint (via e-mail or phone) and provide a strict timeframe to investigate the same.
• Awareness Generation: Companies can generate awareness for preventing sexual harassment by conducting regular training and workshops.
• Helpline Support: Providing helpline support via phone or e-mail to employees by a third-party counsellor can be beneficial.
• Zero-tolerance policy: Advocating a zero-tolerance policy can give way to a safe working environment.
• Strengthen ICCs by providing training and resources to ICC members, streamline the appointment process, and empowering them to take interim measures during the inquiry.
• Simplified Complaint Mechanisms: Establish user-friendly platforms for reporting incidents, ensuring confidentiality and protecting the complainant’s identity.