In 2023, a writ petition was filed in the High Court of Madras by seven petitioners in the case XYZ v. K. Foundation. The petitioners requested that the High Court direct K. Foundation (hereafter “the Foundation”) to develop a gender-neutral policy aimed at preventing sexual and other forms of harassment of students. The petition also sought to establish a support system aligned with several key laws and guidelines, including the Protection of Children from Sexual Offences (POCSO) Act, 2012; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) (POSH) Act, 2013; the Tamil Nadu Prohibition of Harassment of Women Act, 1998; the University Grants Commission’s Regulations on Prevention of Sexual Harassment in Higher Educational Institutions, 2015; and other relevant guidelines from central and state authorities, the National Commission for Children, and the Central Civil Services Rules. Furthermore, the petition asked the Foundation to take action on harassment complaints reported by students.
The petitioners, who remained anonymous, were all students from the RD College of Fine Arts (referred to here as “the College”), an institution managed by the Foundation. They reported various forms of harassment, including sexual harassment, allegedly perpetrated by the College faculty. The case brings attention to a troubling reality: even prestigious institutions often fall short in implementing measures that ensure a safe and equitable environment. According to a recent report, there has been a startling 96% increase in reported cases of sexual violence against children between 2016 and 2022.
Sexual Harassment in the Workplace
Sexual harassment in the workplace is a pervasive issue, affecting industries and workplaces worldwide. This problem becomes even more serious when the victims are minors. The POCSO Act was enacted in 2012 as specialized legislation to protect minors from sexual abuse. This law defines any individual under 18 years of age as a child and establishes strict penalties for sexual offenses and abuse involving minors.
The Role of the POSH Act
When students in educational institutions report cases of sexual harassment, the POSH Act becomes crucial. The POSH Act requires organizations to establish a robust anti-sexual harassment mechanism within their workplaces. Significantly, the POSH Act applies broadly to all types of organizations, whether organized or unorganized, government or private. Its coverage extends to educational institutions, including schools, colleges, coaching centers, sports facilities, stadiums, and various other industries. This wide scope, defined under Section 2(o) of the POSH Act, ensures that any place where individuals interact in an organizational setting is subject to regulations designed to prevent sexual harassment.
1. Purpose and Scope of the POSH Act
The POSH Act was introduced in response to the landmark 1997 Vishaka Guidelines, which highlighted the need for a structured mechanism to address sexual harassment of women in workplaces. The Act mandates that every organization establish an Internal Complaints Committee (ICC) to address sexual harassment complaints. It applies broadly across all workplaces, covering both organized and unorganized sectors, including government and private offices, educational institutions, and sports centers.
Under the POSH Act, any woman, regardless of her age or employment status, has the right to file a complaint against harassment experienced at a workplace. The Act encompasses not only sexual harassment incidents but also stipulates preventive measures and awareness programs within organizations to foster a safe working environment.
2. Purpose and Scope of the POCSO Act
The POCSO Act, enacted in 2012, serves as a special law aimed at protecting children from sexual abuse and exploitation. According to the Act, any individual below the age of 18 is classified as a child, and the Act defines various forms of sexual abuse—ranging from physical acts to exposure to sexually explicit material—that are punishable under its provisions. One of the Act’s unique features is its gender-neutral approach, protecting both male and female minors equally from abuse.
The POCSO Act emphasizes confidentiality in reporting, special procedures during trials, and faster judicial processes to minimize further trauma for child victims. The Act imposes strict penalties on offenders, with certain offenses carrying severe punishments to deter such crimes.
3. The Interplay of POSH and POCSO: Addressing Overlapping Cases
The need for a coordinated approach between the POSH and POCSO Acts becomes apparent in cases involving minors who may be sexually harassed or abused within educational or other organizational settings. Here are some scenarios illustrating the overlap between these Acts:
Educational Institutions as Workplaces: Educational institutions, particularly those with boarding facilities or high levels of interaction between staff and students, can be seen as workplaces under the POSH Act. When a minor is harassed by an adult within such settings, both the POSH and POCSO Acts may apply.
Minor Female Employees: In rare cases, if a minor girl is employed, either formally or informally, she could be protected by both Acts. Sexual harassment complaints in this context would require the involvement of the Internal Complaints Committee (ICC) under POSH and the mechanisms under POCSO.
Workplaces with Child Visitors: Certain public-facing organizations, such as coaching centers or libraries, might interact with minors regularly. If sexual harassment occurs in such cases, the organization must determine which Act applies based on the nature of the incident and the status of the victim as either a “woman employee or visitor” or a “child” under POCSO.
4. Key Provisions of POSH and POCSO: Complementary and Distinctive Aspects
While the POSH and POCSO Acts both aim to protect individuals from sexual misconduct, they address distinct categories of victims and operate under different premises:
Age as a Factor: The POCSO Act explicitly covers individuals below 18 years of age, while the POSH Act does not have a similar age restriction and is primarily focused on the harassment of women in workplaces. If a minor is a victim of harassment in a workplace setting, the POCSO Act’s provisions take precedence.
Legal Obligations of Employers: Section 19(g) of the POSH Act mandates that employers assist an aggrieved woman in filing a criminal complaint if needed. In cases involving minors, the employer may need to cooperate with authorities under both POSH and POCSO, ensuring proper reporting and support for the minor.
Non-Derogation Clause: Section 28 of the POSH Act clarifies that its provisions are supplementary to other laws, ensuring that it does not override the POCSO Act or any other legislation. This clause reinforces that in cases involving minors, both the POSH and POCSO Acts can be invoked together, with the POCSO Act taking primary precedence.
5. Challenges in Implementing POSH and POCSO Together
Ambiguity in Jurisdiction: Determining whether a case falls under POSH, POCSO, or both can be challenging, especially in educational settings. Organizations must be clear on their reporting and compliance obligations under both Acts to avoid potential conflicts or delays in addressing complaints.
Awareness and Training: Many organizations may not be well-versed in the provisions of both Acts, which can lead to gaps in implementation. Comprehensive training for ICC members and awareness programs for employees on how to handle complaints involving minors can help bridge this gap.
Privacy and Confidentiality: While the POSH Act emphasizes confidentiality, the POCSO Act goes further, with stringent rules to protect the identity of child victims during the trial and investigation process. Balancing these requirements and ensuring sensitivity in handling complaints involving minors is essential to avoid causing additional trauma.
6. Recommendations for Effective Implementation
To ensure the protection of minors in workplace environments, including educational institutions, certain steps can be taken:
Establishing Clear Guidelines: Organizations, especially educational institutions, should have clear policies to handle cases under both the POSH and POCSO Acts. This may include protocols for reporting, investigating, and supporting victims.
Integrated Training Programs: Regular training programs can help employees and ICC members understand the provisions of both Acts. Awareness initiatives can also educate staff about recognizing and preventing sexual abuse involving minors.
Cooperation with Authorities: Organizations should work closely with law enforcement and child protection agencies to handle POCSO cases. This ensures swift action and adherence to the procedural requirements of the POCSO Act.
Providing Support Systems for Minors: Schools and workplaces should create a supportive environment where minors feel safe to report any harassment. Psychological counseling and support mechanisms can assist in their recovery and overall well-being.
POSH Act not in derogation of any other law applicable
When age becomes a determining factor, and the minority status of the victim is prioritized over the application of the POSH Act, the distinction between the POCSO and POSH Acts may appear somewhat ambiguous. However, there remains no ambiguity regarding the well-defined applicability of the POSH Act to all organizations. Under Section 19(g) of the POSH Act, it is explicitly mandated that the employer has a duty to assist the aggrieved woman in filing a complaint regarding an offense under the Indian Penal Code or any other applicable law currently in force. Additionally, Section 28 of the POSH Act clarifies that the Act operates supplementary to, and not as a substitute for, any other law currently in force.
Conclusion
The POSH and POCSO Acts, while different in scope, intersect in cases involving minors in workplace environments. Their interplay allows for comprehensive protection, addressing both workplace harassment of women and the protection of children from sexual offenses. By understanding and implementing the provisions of both Acts, organizations can create a safer environment for all individuals, irrespective of age or gender. Clear policies, regular training, and sensitivity towards the needs of minor victims are essential for realizing the full protective intent of these laws.