Globalization has resulted in a more significant influx of women in the workforce in India, and so has sexual harassment. Sexual Harassment is gender discrimination that violates the right to equality and life enshrined in Articles 14, 15 and 21 of the Constitution. Sexual Harassment at the workplace reduces women’s working capacity by putting them through great physical and emotional suffering and also subjects them to a hostile work environment.
The first legislation in the country which addresses the issue of Sexual Harassment in the workplace is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter, POSH Act), enacted in 2013 by the Ministry of Women and Child Development. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, was subsequently notified by the Government. Further, the Criminal Law Amendment Act 2013 criminalized sexual Harassment, stalking and voyeurism.
The objective of the POSH Act is to prevent and protect women against Harassment in its various shades, including Sexual Harassment. It intends to provide all women with a safe and secure work environment irrespective of age or position. The Act extends to the entire country.
Evolution of POSH Laws in the Indian Jurisprudence
India has envisaged the elimination of gender discrimination in the Preamble, Fundamental Rights (Part III), Directive Principles of State Policy (Part IV) and Fundamental Duties (Part IVA). However, no significant laws or judicial precedents have been enacted on this pertinent gender inequality and discrimination issue. However, in the Landmark case of Vishaka v. the State of Rajasthan (1997), the Supreme Court, for the very time, formulated guidelines for combating the menace of sexual Harassment and directed the Government of India to enact appropriate laws for the same. It took the Government of India 16 years after the judgement to enact the POSH Act and POSH Rules!
In the Vishaka case, the victim, Bhanwari Devi, a Dalit woman and an unorganized sector employee, was brutally gang raped while she made efforts to prevent child marriage. Women’s Rights Activists and advocates filed a Public Interest Litigation in the Supreme Court under Article 32 demanding justice for Bhanwari. The Supreme Court lamented the legislative inadequacy and framed the Vishaka Guidelines by relying on the Convention on Elimination of All Forms of Discrimination against Women adopted by the United Nations General Assembly in 1979.
The Vishaka guidelines defines sexual Harassment as any unwelcome sexually determined behaviour, whether directly or by implication, such as physical contact and advances, demands for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical, verbal or non- verbal conduct which has a sexual character. Even if the victim has a reasonable apprehension in relation to the victim’s employment or work, such Act amounts to Sexual Harassment at the workplace.
In Apparel Export Promotion v. AK Chopra, the Court reiterated the need to create a safe, decent, dignified workplace for women. It ruled that sexual harassment is not only limited to physical contact but includes any form of gender discrimination, including unwelcome sexual favours, physical conduct with sexual overtones, and so on.
Internal Complaints Cell
The POSH Act envisages grievance redressal forums such as an Internal Committee (IC) at each office or branch with ten or more employees. In Global Health Private Limited v. Mr Arvinder Bagga and ors, it was held that if an organization fails to constitute an IC, a fine is levied under the POSH Act. The IC must be constituted such that not less than half of the IC members shall be women. The term of IC members is three years. While conducting an enquiry, a minimum of 3 members of the IC, including the Presiding Officer, who is a woman employed at a senior level of that workplace, should be present.
In the case of an unorganized sector or organization having lesser than ten employees, the Government is required to establish a ‘local committee’ (LC) to redress complaints of Sexual Harassment. The POSH Act prescribes the IC and LC to have the same powers as vested in a civil court under the CPC, 1908 in respect of summoning and enforcing the attendance of any person, examining him on oath, requiring the discovery and production of documents, or any other matter prescribed.
Prevention of Sexual Harassment at the Workplace (POSH), Nishith Desai Associates, December 2020, accessed at https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf