Protection of Women from Sexual Harassment Act (POSH Act)-Significance and concerns- Explained Pointwise

Sexual Harassment at the workplace is one of the major issues faced by women in the modern world. Protection of Women from Sexual Harassment Act (POSH Act) was enacted to effectively counter the sexual harassment cases in India. While there has been a rise in the cases registered under this act, SC has also raised concerns regarding some serious lapses and uncertainties surrounding the Act.

What is the status of sexual harassment at workplace in India? 

According to a survey conducted by the Indian National Bar Association of over 6,000 employees in 2017. According to the survey, sexual harassment is widespread in different job sectors. The sexual harassment varies from vulgar comments to an outright demand for sexual favours.

According to the Ministry of Women and Child development between 2015-2017, a total of 1631 cases had been filed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. There has been a wide disparity among states, with Uttar Pradesh recording for nearly 25% of all cases, followed by Delhi (16%).

What is the POSH Act? What are the important provisions of the Protection of Women from Sexual Harassment Act (POSH Act)?

About the Act- The POSH Act is a legislation enacted by the Government of India in 2013 to address the issue of sexual harassment faced by women in the workplace. The Act aims to create a safe and conducive work environment for women and provide protection against sexual harassment.

Background of Enaction- The Supreme Court in the landmark judgment in the Vishakha and others v State of Rajasthan 1997 case gave the ‘Vishakha guidelines’ for prevention of sexual harassment at workplace.
India has also signed the CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) 1980. India has also ratified the convention later.

The POSH Act was enacted to give a statutory and a legal backing to these guidelines and Conventions.

Important Provisions of the POSH Act

1. Definition of Sexual Harassment- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) defines sexual harassment as one or more of the following unwelcome acts or behavior. Such as
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually colored remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

2. Prevention and Prohibition- The Act places a legal obligation on employers to prevent and prohibit sexual harassment in the workplace.

3. Internal Complaints Committee (ICC)- The employers are required to constitute an Internal Complaints Committee (ICC) at each workplace with 10 or more employees to receive and address complaints of sexual harassment. The Complaints Committees have the powers of civil courts for gathering evidence.

4. Duties of Employers- According to the Act, the employers must undertake awareness programs, provide a safe working environment, and display information about the POSH Act at the workplace.

5. Complaint Mechanism- The POSH Act lays down a procedure for filing complaints, conducting inquiries, and providing a fair opportunity to the parties involved.

6. Penalties- Non-compliance with the Act’s provisions can result in penalties, including fines and cancellation of business licenses.

What is the Significance of the Prevention of Sexual Harassment at Workplace Act in India?

1. Ensures Emotional Well-Being of women- Sexual harassment can endanger the victim’s emotional and mental health. It can lead to the loss of self-esteem, and it may even compromise personal relationships. Hence, the Act aims to ensure the emotional well-being of women in India.

2. Improved Physical Health- Weak emotional health often leads to physical health issues, such as loss of appetite, headaches, weight fluctuations, and sleep disturbances. Hence, the Act aims at improving the physical health of women in India.

3. Ensures protection of women against Financial hardships- Sexual harassment frequently leads to financial hardship and challenges due to loss of job references and hostile work environment. For ex- According to a study led by the ILO, lewd behaviour and threatening at workplaces were the most well-known reasons due to which women left the workforce in Uttar Pradesh.

4. Protection against economic losses- Low productivity, low employee turnover, low morale, and high legal costs arising from sexual harassment costs millions of Dollars. The economy also suffers due to premature retirement and higher insurance costs (paid if women left the job).

What are the challenges with the POSH Act cases in India?

The Supreme Court of India has recently raised several serious lapses and uncertainties in the implementation of the POSH Act. These are mentioned as followed-

1. Non-compliance of Companies and organisations- There are many private companies and organisations which have not constituted an Internal Complaints Committee (ICC) to look into the complaints of sexual harassment at the workplace. For ex- Only 16 out of 30 national sports federations had constituted Internal Complaints Committees (ICCs) as mandated.

2. Improper constitution of ICCs- The majority of the ICCs either have an inadequate number of members or lack mandatory external member. Most of the committees lack people who have knowledge about legal technicalities involved in conducting the inquiry, cross-examinations, and its importance.

3. Lack of Gender Neutrality- The law does not take into account sexual harassment faced by men, transgender, and transsexual individuals.

4. Exclusion of certain categories of women- The Act does not cover women working as agricultural workers and in the armed forces. These are largely male-dominated sectors.

5. Fear of Victimization- Victimization in sexual harassment often occurs, when a woman lodges a complaint against a superior. The POSH Act is silent on victimisation and has neither any preventive provisions nor any remedies. For ex- A survey revealed that nearly 70% of women did not complain due to fear, embarrassment, lack of confidence in complaint mechanism etc.

What are the other women initiatives for safety of Women?

What Should be the Way Forward?

Justice JS Verma committee has recommended several changes to the POSH Act. The important recommendations are as follows-

1. Wider definition of rape- The committee has recommended to view rape and sexual assault as not merely a crime but also as an expression of power. So, any non-consensual penetration of a sexual nature has to be included in the definition of rape.

2. Replacement of ICC with tribunal- The committee has recommended the establishment of a tribunal, instead of an ICC. Because dealing with such complaints internally could discourage women from complaining.

3. Inclusion of excluded women- POSH Act should be amended to include women in armed forces, agriculture to get their grievances redressed. The Act should focus on gender-neutral.

4. Punishment of companies for non-compliance- The government must form a committee to identify the companies not formed the ICC, companies victimizing the women. These companies must be financially penalized or name and shamed to make them compliant to the provisions of the Act.

5. Creation of Gender equity company index- The government should aim to create a Gender equity company index like LGBT+ workplace equality index. This will create a healthy gender-sensitive competition among companies to hire more women, and provide them with enough respect.

6. Raising awareness- Government needs to raise the awareness about gender-sensitive child-rearing practice. The government can also introduce a gender-equity syllabus at school level. Further, the Act must be enforced diligently to ensure the dignity and respect that women deserve at the workplace.