Introduction


The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [Prevention of Workplace Sexual Harassment ACT] was made effective from December 09, 2013 by the Ministry of Women and Child Development, India.  The ACT has been enacted with the objective of preventing and protecting women against sexual harassment at workplace and for the effective redressal of complaints of sexual harassment. The statute seeks to fill the legislative void on the subject and provide every woman, irrespective of her age or employment status, a safe and secure working environment free from all forms of harassment.

The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 (“Criminal Law Amendment Act”) which criminalized offences such as sexual harassment, stalking and voyeurism.

The ACT provides an alternative to filing a criminal complaint with police, instead mandating employers to set up committees in case of a private company, or local government officials in case of the informal sector, to hear complaints, conduct inquiries, and recommend action to be taken against perpetrators. This can range from a written apology to termination of employment.

Women can still file police complaints under the Indian Penal Code dealing with sexual harassment or assault. But unlike a criminal case that could drag on for years, the complaints committees are expected to offer quick and effective remedy.



Bhanwari Devi case


The movement that pushed for these mechanisms has its origins in the sexual harassment and gangrape of Bhanwari Devi, a Dalit woman employed by the Rajasthan government’s Women’s Development Programme. As a “saathin”, as workers in the programme were called, it was Devi’s job to spread awareness about hygiene, family planning and the necessity of educating girls, along with campaigning against female foeticide, infanticide, dowry and child marriages. Harassed in the course of her work, Devi was raped by five Gujjar men as “punishment” in 1992 for stopping the wedding of a nine-month-old Gujjar girl.

A nation-wide network of women’s organisations decided to support Bhanwari Devi’s fight for justice. Led by groups in Rajasthan, the movement recognised that Devi was attacked at what was essentially her workplace. In the absence of a law that tackled such harassment, four women’s organisations filed a writ petition in the Supreme Court asking for guidelines that would help institutions recognise, prevent and redress sexual harassment in the workplace. These groups were Vishakha and Women’s Rehabilitation Group from Rajasthan and Jagori and Kali for Women from Delhi.



Vishaka Guidelines


In 1997, the Supreme Court introduced the Vishakha guidelines, since that feminist women’s collective was the first party listed on the petition. “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right,” the court said.



Provisions under Prevention of Workplace Sexual Harassment Act

Applicability and Scope

The Prevention of Workplace Sexual Harassment Act extends to the ‘whole of India’ and stipulates that a woman shall not be subjected to sexual harassment at her workplace. It is pertinent to note that the statute protects only women and is not intended to be a gender-neutral legislation.

As per the statute, an ‘aggrieved woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment. Further, the Act applies to both the organized and unorganized sectors in India.

Sexual Harassment –Definition

‘Sexual harassment’ includes unwelcome sexually tinted behaviour, whether directly or by implication, such as

  • physical contact and advances,
  • demand or request for sexual favours, making sexually coloured remarks
  • Showing pornography, or
  • any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

Presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment; threat of detrimental treatment in employment; threat about present or future employment; interference with work or creating an intimidating or offensive or hostile work environment; or humiliating treatment likely to affect the lady employee’s health or safety could also amount to sexual harassment.

Employee: The definition of an ‘employee’ under the POSH Act is fairly wide and covers regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, contract labourers, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.

Workplace:  Recognising that sexual harassment of women may not necessarily be limited to the primary place of employment, the POSH ACT has introduced the concept of an ‘extended workplace’. As per the statute, ‘workplace’ includes any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment.

The POSH Act widened the definition of the workplace and covered the informal sector, including domestic workers. It provides protection to all workers in the public and private sectors including health, sports, education, or government institutions.


Complaints Committee

An important feature of the POSH ACT is that it envisages the setting up of grievance redressal forums for both organized and unorganized sectors.

Under the POSH Act, every employer is required to constitute an Internal Committee (IC) at each office with 10 or more employees. For establishments where the IC has not been constituted because they have fewer than 10 employees, or if the complaint is against the employer, or for women working in the informal sector, the state government’s district officer or collector is required to form a Local Committee (LC) in each district and, if required, at the block level. The government is also responsible for developing training and educational materials, organizing awareness programs, monitoring implementation of the law, and maintaining data on the number of cases of sexual harassment filed and resolved in the workplace.

Constitution of the ICC: Presiding Officer: Woman employed at a senior level at the workplace from amongst the employees. Members: Not less than 2 members from amongst employees. Preferably committed to the cause of women or who have had experience in social work or have legal knowledge.

External member: From an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment.

Not less than half of the ICC Members shall be women. The term of the ICC Members shall not exceed 3 years A minimum of 3 Members of the ICC including the Presiding Officer are to be present for conducting the inquiry.


Powers of the ICC

The POSH ACT stipulates that the ICC shall, while inquiring into a complaint of workplace sexual harassment, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of:

  • summoning and enforcing the attendance of any person and examining him on oath;
  • requiring the discovery and production of documents; and


Complaint Mechanism

An aggrieved woman who intends to file a complaint is required to submit six copies of the written complaint, along with supporting documents and names and addresses of the witnesses to the ICC within 3 months from the date of the incident and in case of a series of incidents, within a period of 3 months from the date of the last incident.

The ICC can extend the timeline for filing the complaint, for reasons to be recorded in writing, by a period of 3 months.  The law also makes provisions for friends, relatives, co-workers, psychologist, psychiatrists, etc. to file the complaint in situations where the aggrieved employee is unable to make the complaint on account of physical incapacity, mental incapacity or death.


Interim Reliefs

The ICC is also empowered to, at the request of the complainant, recommend to the employer interim measures such as:

  • transfer of the aggrieved woman or the respondent to any other workplace
  • granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement
  • restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, which duties may be transferred to other employees.


Punishment and Compensation

The statute prescribes the following punishments that may be imposed by an employer on an employee for indulging in an act of sexual harassment:

  • punishment prescribed under the service rules of the organization;
  • if the organization does not have service rules, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service;
  • deduction of compensation payable to the aggrieved woman from the wages of the respondent. The statute also envisages payment of compensation to the aggrieved woman.


The compensation payable shall be determined based on:

  • the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee;
  • the loss in career opportunity due to the incident of sexual harassment;
  • medical expenses incurred by the victim for physical/ psychiatric treatment;
  • the income and status of the alleged perpetrator; and
  • feasibility of such payment in lump sum or in instalments.
  • In the event that the respondent fails to pay the aforesaid sum, ICC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.


Confidentiality

The statute specifically stipulates that information pertaining to workplace sexual harassment shall not be subject to the provisions of the Right to Information Act, 2005.

The statute further prohibits dissemination of the contents of the complaint, the identity and addresses of the complainant, respondent witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the ICC and the action taken to the public, press and media in any manner.


False or malicious complaints

During the inquiry process laid out above, should the IC conclude that (1) the allegation against the respondent is malicious; (2) the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false; or (3) the aggrieved woman or any other person making the complaint has produced any forged or misleading document, then the IC may recommend to the employer to take action against the woman or the person who has made the complaint. However, a mere in- ability to substantiate a complaint or provide adequate proof need not attract action against the complainant as being malicious or false. 

Further, should the IC conclude that any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness to take action against the witness. 


Conciliation process

The Law also provides for conciliation between the interested parties in its provisions. This option is commonly seen as an attempt by the legislature to ensure the aggrieved woman and the respondent are able to settle the incident(s) of alleged sexual harassment in an amicable manner. On a practical level, such conciliatory efforts are ordinarily adopted when the complaint of sexual harassment is centered around a misunderstanding, rather than an egregiousness error of the respondent. 

On the conciliation process itself, the IC, may, before initiating an inquiry and at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation. However, no monetary settlement shall be made as a basis of the conciliation.