Sexual harassment of women, finds its roots in the regressive patriarchal notion that women are subservient to men, women must be controlled and are incapable of independent functioning. In recent decades when the “public – private” divide in a woman’s life is blurring, they still face a challenge that often goes unreported, preventing them from matching up to their male counterpart.
Sexual harassment of women at work place is a grave violation of the basic human right to life and to work with dignity. In India, the preamble of the constitution seeks to secure justice, liberty and equality amongst its citizens. Part III of the constitution of India provides for fundamental rights of a justiciable nature i.e. an aggrieved person can approach a competent court for relief if such rights are infringed upon. Under articles 14, 15 and 21 women have the right to equality, right against discrimination where the state may also provide special provisions for advancement of women, right to life and personal liberty respectively. Such rights exist to provide women the opportunity to practice any profession, trade or business in a safe environment that is conducive to their growth, free from harassment.
Despite such protection, in 1992, Bhanwari Devi, a social worker in Rajasthan working to prevent the practice of child marriage was gang raped by a group of high caste men to punish her for continuing on her endeavour to stop the marriage of a nine month old girl. Lack of local legislations and domestic laws relating to the offence caused several delays even while filing a complaint. Criminal proceedings initiated against the accused were dismissed and they were acquitted by the trial court without a proper trial. Horrors from this instance led many women groups , Vishaka and others to file for a Public interest litigation (PIL) in the supreme court of India recommending sexual harassment to be recognised as violative of women’s fundamental right , demanding all workplaces and establishments be made accountable and answerable in prohibiting, preventing and redressing the issue of sexual harassment. With no nationally recognised law on sexual harassment, the supreme court in the case of Vishaka and Ors vs. State of Rajasthan, using provisions under article 253 of the constitution of India, enabling the parliament to make laws for the whole or a part of the territory of India for implementing any treaty or convention, created legally binding guidelines from the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) which had been signed by India in 1980, ratified in 1993. Thus making it a duty of the employer to protect the safety of their employees and other people who might be affected by their business, this came to known as Vishaka Guidelines.
In 2013, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act also called Posh Act was enacted as India’s first legislation comprehensively addressing harassment at workplace. It is a preventive act containing 8 chapters and 30 sections.
In section 2(n) of POSH act sexual harassment is defined as any one or more of the following unwelcome acts or behaviour,
- physical contact and advances
- a demand or request for sexual favours
- making sexually coloured remarks
- showing pornography
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Section 2(o) of POSH act defines workplace,
- any department, organisation, establishment, enterprise, office, owned or controlled by the Government or the local authority or a corporation or a co-operative society
- any private sector organisation trust, non-governmental organisation, service provider carrying on commercial, professional, vocational, educational etc activities
- hospitals or nursing homes
- any sports institute, stadium, sports complex
- a dwelling place or a house or an unorganised sector.
Offences under this act are non-cognizable i.e. those where a police officer can arrest the convict without a warrant. There is an available option for conciliation at the request of the aggrieved woman between her and the respondent however no monetary settlement must be made as a basis of conciliation.
Complaints will be enquired by a committee specially constituted with external expertise. Section 4 and section 7 provide for the constitution two types of complaint committees, internal complaint committee (ICC) and a local complaint committee (LCC).
Members of both ICC and LCC hold office for a term of 3 years from the date of their appointment with a 50% women representation. Any aggrieved woman can in writing file a complaint of sexual harassment at workplace with the Internal Committee or the Local Committee, in case the former has not been constituted. A period of three months from the date of incident is given to file a complaint or if she is unable to do herself due to any physical or mental incapacity or death, any other person may do so on her behalf. Non adherence to the setting up of the complaint committee by the employer in an establishment containing more that 10 workers or if the employer has contravened any provision of this act, will attract punitive action in the form of monetary punishment with fine up to Rs fifty thousand under section 26 of POSH act.
Internal complaint mechanism- Every employer of a work place must constitute an ICC via a written order. It consists of a Presiding Officer who must be a woman employed at a senior level at workplace, if not available she must be nominated from other departments or units of the same employer. A minimum of two members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge. A member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. At least one-half of the total members nominated must be women. If the administrative units of a workplace are located in different places or divisions an ICC must be set up at every such unit or office.
Local Compliant Committee– Constituted by the district officer , a LCC receives complaints of sexual harassment from establishments where an Internal Committee has not been constituted due to less than ten workers or if the complaint is against the employer himself or relating to domestic workers. LCC consists of a chairperson who is nominated from amongst the eminent women in the field of social work committed to the cause of women, one member must be nominated from amongst the women working in block or municipality in the district, along with two other members out of whom at least one shall be a woman, who is familiar with the issues relating to sexual harassment and committed to the cause of women. One nominee, if possible to have a background in law, least one of the nominees to be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority. An officer dealing with the social welfare or women and child development in the district, shall be an ex officio member.
External members in this act refers to those persons who possess required knowledge and skill in dealing with issues of sexual harassment and women empowerment .They must have the required legal knowledge and practice in labour, criminal or civil law or be a part of an NGO for the same. In 2018 , Ruchika Singh Chhabra vs. Air France India and Ans, appellant Ruchika Chhabra an employee for Air France India complained to ICC that she was sexually harassed by another employee of the company. Mr Michael Dias was chosen to be an external member of the ICC, the appellant not convinced with the independence of such an appointment claimed it contrary to the rules of the POSH act 2013 as the external member was not associated to any NGO nor were his credentials informed to the appellant. The Delhi high court ruling in favour of the applicant stated that the parliamentary intent for proving an NGO member as part of ICC was to ensure impartiality and independence. Stating the Latin phrase “nemo debet esse judex in propria causa” which means no man shall be a judge in his own cause, the Court thus expressed the deciding authority must be without any bias thereby declaring such appointment invalid, the ICC must be reconstituted with strict adherence to the law within thirty days, conducting its inquiry afresh. Also mentioned, it is crucial that the woman making such claims feels safe, comfortable and has faith that justice will prevail during this period ICC or LCC can make recommendations for interim measures to the employer such as to transfer the aggrieved woman or respondent to any other workplace, granting leave to the aggrieved woman.
While making inquiries the ICC or the LCC has the same powers as that of a civil court while trying a suit under the Code of Civil Procedure 1908, such includes, summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of documents etc.
Several times rights under the act have been misused for frivolous litigation and for threats, in Anita Suresh v. Union of India & Ors, Delhi high court took a strong stance against the filing of false sexual harassment complaint thereby imposing a fine of Rs. 50,000 on a woman as she could not recall the names of any person present in office at that time even though she previously mentioned others were present. During enquiry, the entire complaint appeared to be false and was filed due to some ulterior motive. The petition was dismissed and the court further stated the employer may initiate appropriate action against the petitioner for filing false sexual harassment complaint against the respondent in accordance with law.
Scope and effectiveness of POSH act is ever changing, new and effective ways have been devised to tackle issues of justice deliverance, prevention and punishment. One such policy launched by the ministry of women & child development in 2017 was the complaint management portal called Sexual Harassment electronic – box or Shebox to register complaints related to sexual harassment at workplace online as an easy and hassle free way to file complaints.
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Janaki Kumari, Law Student |
