PREVENTION, PROHIBITION AND REDRESSAL (POSH) ACT, 2013
News: On sexual harassment in the workplace
What is in the news?
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Ten years after the
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 (PoSH) came into force, the Supreme Court Bench of India has said
there are “serious lapses” and “uncertainty” regarding its implementation.
History of the formation of PoSH act:
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In 1992, Bhanwari Devi, a social worker with the Women’s Development
Project of the Rajasthan government was gangraped by five men after she tried
to prevent the marriage of a one year old girl.
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In this case the SC,
noting the absence of any law “enacted to provide for effective enforcement of
the basic human right of gender equality” guarantee against “sexual harassment
at workplaces”, laid down a set of guidelines in 1997, christened the Vishakha Guidelines, to fill the
statutory vacuum till a law could be enacted.
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These were to be
“strictly observed in all workplaces'' and were binding and enforceable in law.
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The act came into force
on December 9, 2013, as the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) or PoSH Act.
Prevention of Sexual Harassment at Workplace Act 2013:
1. Definition of sexual harassment:
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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 nonverbal conduct of a sexual nature".
2. Definition of women employee:
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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 employed without the knowledge of the principal employer.
3. Definition of workplace:
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The law expands the
definition of ‘workplace’ beyond traditional offices to include all kinds of
organizations across sectors, even non-traditional workplaces.
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It applies to all public
and private sector organizations throughout India.
4. Internal Complaints Committee:
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The law requires any employer with more than 10 employees to
form an Internal Complaints Committee (ICC) which can be approached by any
woman employee to file a formal sexual harassment complaint.
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It 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, familiar with the challenges of sexual harassment.
5. District local committees:
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The Act mandates every
district in the country to create a local committee to receive complaints from
women working in firms with less than 10 employees and from the informal
sector, including domestic workers, home based workers, voluntary government
social workers and so on.
6. Annual audit report:
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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.
7. Penalties:
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Non-compliance with the
Act's provisions can result in penalties, including fines and cancellation of business licenses.
Hurdles to the Act's implementation:
1.Defunction
of internal complaints committee:
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The Supreme Court in its
recent judgment called out the lacunae in the constitution of ICCs, citing a newspaper report that 16 out of
the 30 national sports federations in the country had not constituted an ICC to
date.
2. Lack of members:
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The judgment also flagged
the improper constitution in cases where the ICCs were established — pointing
out that they either had an inadequate number of members or lacked a mandatory
external member.
3. Lack of accountability:
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Act does not
satisfactorily address accountability, not specifying who is in charge of
ensuring that workplaces comply with the Act, and who can be held responsible
if its provisions are not followed.
4. Inaccessibility to informal workers:
● The law is largely inaccessible to women workers in the informal sector because of the poor reach of the act and lack of legal literacy.
5. Underreport of cases:
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Additionally, experts
have noted that in workplaces sexual harassment cases are hugely underreported
for a number of reasons.
6. Lack of clarity:
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However, the inefficient
functioning and the lack of clarity in the law about how to conduct such
inquiries have ended up duplicating the access barriers associated with the
justice system.
7. Victimization:
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Victimization in sexual
harassment often occur especially when a woman lodges a complaint against a
superior. The Act is silent on victimization and has neither any preventive
provisions nor any remedies.
8. Not Gender Neutral:
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The law does not take
into account sexual harassment faced by men, transgender, and transsexual
individuals.
9. Fear of job loss:
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Most importantly, the
power dynamics of organizations and fear of professional repercussions also
stand in the way of women filing complaints.
WAY FORWARD:
1. Constitution of Internal Complaint
Committees:
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As per the act's mandate
It is important to have a well-constituted Internal Complaint Committees (ICCs)
that includes both men and women as members and is chaired by a senior female
employee.
2. Make it gender neutral:
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Further, the amendment
should also include women in armed forces, agriculture to get their grievances
redressed. The Act should focus on gender-neutral.
3. Spreading of awareness:
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It's important for
employees to be aware of their rights and the procedures for filing a complaint
of sexual harassment.
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Employers should conduct
regular training sessions and workshops to raise awareness about the law and
the redressal mechanisms available.
4. Implement Verma Committee Recommendations:
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It had recommended a tribunal, instead of an ICC. Because
dealing with such complaints internally could discourage women from
complaining.
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Rather than functioning
as Civil court, the tribunal may choose its own procedure to deal with each
complaint. The Committee believed that this will result in speedy disposal of
complaints.
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The employer should pay compensation to the woman who has
suffered sexual harassment.
Government measures to secure the safety of the
working women:
1. One stop center scheme:
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One Stop Centers (OSC)
are intended to support women affected by violence, in private and public
spaces, within the family, community and at the workplace. Women facing
physical, sexual, emotional, psychological and economic abuse, will be
facilitated with support and redressal.
2. She- Box:
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The Ministry of Women
& Child Development has launched Sexual Harassment electronic Box
(SHe-Box).
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It is an effort to
provide a single window access to every woman, irrespective of her work status,
whether working in organized or unorganized, private or public sector, to
facilitate the registration of complaint related to sexual harassment.
3. Working Women Hostels scheme:
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The Working Women Hostels
scheme is implemented by the Ministry of
Women and Child Development.
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It aims to ensure safe
accommodation for women working away from their place of residence.
4. Convention on the Elimination of all Forms
of Discrimination against Women) 1980:
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India has signed the
CEDAW (Convention on the Elimination of all Forms of Discrimination against
Women) 1980. India also ratified the convention later.