16 JUNE 2022
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
by Jai Chauhan: O.P. Jindal Global Law School, Sonipat
Introduction:
The Protection of Women Against Sexual Harassment at Workplace Bill, 2010, was introduced on December 07, 2010. The above act, majorly known as POSH Act, passed in 2013, It underlines the; definition of sexual harassment in the workplace, and it is aimed at; catering to the interest of women in the workplace. The act came into force on 9th December 2013. The act contains 8 Chapters and 30 Sections.
The act has clauses that; read that every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level. Several such clauses are included in the act to safeguard women from sexual harassment in the workplace.
The above superseded and broadened the previous provisions and guidelines laid down by; the Vishakha V. State of Rajasthan [AIR 1997 SC 3011], which is a renowned case of sexual harassment in the workplace. In the above case, the Supreme Court laid down; the guidelines, known as ‘Vishakha Guidelines.
The discussion for such a law came in India in the above case only, “The Supreme Court determined that; every organization should have an ethical code in place, as well as a system for implementing the code in situations that; fall under its purview.”
The above act not only provides the punishments for the wrongful act committed by one but also states; the guidelines for the procedures required to file a complaint and also how an inquiry must be held in the organization.
Timeline
Below is the timeline of the POSH Act, 2013
| Date/ Year | Steps Taken |
| 2007 | A draft is approved by Union Cabinet, named Protection of Women against Sexual Harassment at Workplace Bill, 2007 |
| 2010 | The Bill is introduced in Lok Sabha |
| 2012 | The Bill, after amendments, is re-introduced in Lok Sabha |
| Sep 03, 2012 | The Bill named The sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 is passed in Lok Sabha. |
| Feb 26, 2013 | The Bill is passed in the Rajya Sabha |
| Apr 23, 2013 | President’s assent is received |
| Dec 09, 2013 | The act comes into force. |
Amendments
| Year | Amendments |
| 2016 | In May 2016 an amendment was brought in sections 6,7 and 24:
The words “Local Complaints Committee,” wherever they occur, the words “Local Committee” shall be substituted. Also, the words “Internal Complaints Committee,” wherever they occur, the words “Internal Committee” shall be substituted.” It was also made clear that the committees will also work on prevention and other measures as well. They must provide the employees with a workplace with a no-tolerance policy. |
What is defined as Sexual Harassment?
Under the law, sexual harassment is defined as an act that includes:
Physical contact and advances, A demand or request for sexual favors, sexually colored remarks, showing pornography, or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The presence of any one of the above acts/behaviors constitutes sexual harassment in the workplace. Also, a handbook is released by the Ministry of Women & Child Development.
Procedure for filing the complaint:
Under the law, a complaint to the Internal Committee (IC) is not required for him/her to act upon any incidence of the harassment. Under the Act, the complaint must be made “within three months from the date of the incident”. However, the ICC can “extend the time limit” if “it is satisfied that; the circumstances were such which prevented; the woman from filing a complaint within the said period”.
The IC may provide that “no monetary settlement may be reached as a basis of conciliation takes efforts to settle the dispute between her and the respondent through conciliation” before inquiry. IC may either refer the victim’s complaint to the police or initiate an investigation that; must be concluded within 90 days. The IC has the same authorities as a civil court in terms of calling and interrogating someone under oath, as well as mandating the discovery and production of documents.
When the investigation is over, the IC must present the employer with a report on its findings within 10 days. Both parties are also given access to the report. Also, the identity of any person involved in the proceedings and also the respondent and the victim should not be made public.
Background for the Act:
The act came from the case Vishakha & Ors. V. State of Rajasthan, where Bhanwari Devi, who brutally gang-raped for stopping a child marriage being conducted in a town. This was a part of her duties as a member of the Development Program to stop any illegal activity conducted against children and women. Moreover, this Act uses the definition of sexual harassment laid down by the Supreme Court. This case was the basis on which; the act developed, but the guidelines set up by the supreme court too lacked; some aspects, which were later introduced in the act, and it resulted in the act superseding the court’s guidelines.
Justice Verma’s Report:
Verma, CJ committee constituted, and it submitted its report on January 23, 2013, it constituted to recommend the amendments to the criminal law, to provide a quicker trial and enhanced way to deal with; the crimes committed concerning the sexual assault against women. In his report Verma, CJ committee also visited the above act and recommended the below changes:
- Domestic workers should be included within the purview of the Bill.
- Under the Bill, the complainant and the respondent are first required to attempt conciliation. This is contrary to the Supreme Court judgment in Vishakha vs. State of Rajasthan which aimed to secure a safe workplace for women.
- The employer should pay compensation to the woman who has suffered sexual harassment.
- The Bill requires the employer to institute an internal complaints committee to which complaints must be filed. Such an internal committee defeats the purpose of the Bill and instead, there should be an Employment Tribunal to receive and adjudicate all complaints.
Issues:
The above act still includes some issues which were also recommended by; the standing committee report. the act does not explore the view of sexual harassment against the male at the; workplace, no specific definition of ‘hostile work environment is not included in the act, making it a vague term. The option of filing a complaint at the State Women Commission is also lacking in the act as on LCC (Local Complaining Committee) is the option in case an ICC (Internal Complaint Committee) is not available to the employee. Also, the option of Suo moto is not available with the Complaint Committee.
Conclusion:
The influence of the posh act as a viable legal recourse for women who are experiencing sexual harassment in the workplace may be observed in growing no. Every year, there are thousands of complaints about similar incidents. The statute designed primarily to address situations of sexual harassment of women in the workplace. It is based on the instructions made in the Vishaka case. The decision exemplified the true definition of judicial activism.
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