LAPSES IN POSH ACT ENFORCMENT

Content Created by Intern Kumar Nishant

INTRODUCTION

In the recent judgement of Aureliano Fernandes v. State of Goa & Ors., Supreme Court expressed deep concern regarding lapses in the POSH Act, 2013 enforcement even after a decade of its enactment, leaving many working women no choice but to leave their jobs.

Many States and Union Territories were failed to comply those rules. There is a provision for employer having more than or equals to 10 employee to make an internal complaint committee (ICC) in the organisation itself but many institutions are failed to do so1.

Being a victim of sexual harassment not only dents the self-esteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at workplace, they are reluctant to report such misconduct, many of them even drop out from their job.

POSH ACT, 2013

The Bhanwari Devi case is one of the most significant cases among the cases of women’s safety as it paved the way to the Vishakha guidelines which further lead to enactment of POSH Act, 2013.

Bhanwari Devi was a Dalit government employee who was engaged in spreading awareness about hygiene and education and running campaigns against dowry and child marriage. In a protest to stop a child marriage of a girl in a village she was get raped by the some of the villagers. Later on group of Non-Profit Organisation filed a PIL by the name of Vishakha seeking Justice for Bhanwari Devi. They also sought a new set of guidelines for the protection of women. The judgement was given by a 3 Judge bench which held that the fundamental rights provided under Article 14, Article 15, Article 19(1)(g) and Article 21 of the Constitution of India are violated by the act of sexual harassment.

The court brought out the Vishaka guidelines for the protection of women at their workplaces and providing a safer working environment to the women.

The Vishakha guidelines were a set of guidelines that were intended to protect women at the workplace. These were instituted by the Supreme Court of India in the year 1997. These are procedural in nature and state the method that is to be followed while dealing with cases related to the sexual harassment of women.2

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, commonly known as the PoSH Act, was passed in 2013 gave legislative backing to what are known as the Vishakha Guidelines, which were laid down by the Supreme Court in a judgment passed in 1997. It defined sexual harassment, lay down the procedures for complaint and inquiry, and the action to be taken in cases of sexual harassment.

Under the 2013 law, sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:

• Physical contact and advances
• A demand or request for sexual favours
• Sexually coloured remarks
• Showing pornography
• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.3

A ‘Handbook on Sexual Harassment of Women at Workplace’ published by the Ministry of Women & Child Development contains more detailed instances of behaviour that constitutes sexual harassment at the workplace.

BENEFITS OF POSH COMPLIANCE

• Creating a safe work environment: By implementing POSH policies and procedures, businesses can create a safe and inclusive workplace where all employees feel respected and valued.
• Reducing legal liability: Compliance with POSH regulations can help businesses avoid legal disputes related to sexual harassment, which can be costly and damage a company’s reputation.
• Improving employee morale and productivity: Employees are more likely to be productive and satisfied with their work when they feel safe and supported.
• Enhancing organisational reputation: A commitment to POSH compliance can improve an organisation’s reputation as a responsible and ethical employer.

LAPSES AND THE GUIDELINES

It is often seen that when someone faces sexual harassment at the workplace, they are reluctant to report the misconduct and one of the reasons for this reluctance to report is that there is uncertainty about whom to approach for redressal of grievances.

Another reason is lack of confidence in the process and outcome. Many doesn’t know where they have to register the complain, to whom they have to contact, what they have to prove and many more thing by which the complainant got confused and some time they also lack confidence and have fear of losing the job or they think it it will become more worse.

It is often seen that when women face sexual harassment at workplace, they are reluctant to report such misconduct, many of them even drop out from their job.

The way to ameliorate this is by robust and efficient implementation of the PoSH Act. Therefore, it is imperative to educate the employees about the import and working of the PoSH Act;

• how a complaint can be registered;
• the procedure that would be adopted to process the complaint;
• the objective manner in which the committee is expected to function under the PoSH Act;
• the nature of consequences that the delinquent employee can be visited with if the complaint is found to be true;
• the results of lodging a false or malicious complaint; and
• the remedies available if the complainant is dissatisfied with the report of the
• committee.

It has been seen that there were lot many organisation who were failed to comply the rules of POSH Act like not following the procedure, failed to establish the Internal Complaint Committee (ICC), etc. But the problem is that the organisation are failing to establish the ICC which is the very serious concern directly seems disobeying the law and by which they are not providing women a safe and secure place, it directly leads to their safety. If they are having genuine complain they can’t complain about it, they have to a long procedure.

Also earlier there are no ways to find out whether an organisation is formed an Internal Complaint Committee or not but in the recent judgement of Aureliano Fernandes v. State of Goa & Ors4, SC directed the Union, States, and Union Territories to conduct a time-bound exercise to determine whether Ministries, Departments, government organizations, authorities, public sector undertakings, institutions, bodies, and so on had established Internal Complaints Committees (ICCs) and Local Committees (LCs) under the Act. These organizations have been directed to post information about their respective committees on their websites. They were given eight weeks to comply and file affidavits in the Supreme Court.The PoSH Act subsequently mandated that every employer must constitute an Internal Complaints Committee (ICC) at each office or branch that had 10 or more employees.

The ICC “may”, before inquiry, and “at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation” provided that “no monetary settlement shall be made as a basis of conciliation”.

The ICC may either forward the victim’s complaint to the police, or it can start an inquiry that has to be completed within 90 days. The ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath, and requiring the discovery and production of documents.

Now we see that many organisations are failed to established the Internal Complaint Committee (ICC) even government organisations itself are failed to comply that, An investigation published on Thursday (May 4) in The Indian Express revealed that more than half 16 of India’s 30 national sports federations in which India has participated in the 2018 Asian Games, Tokyo Olympics in 2021 and last year’s Commonwealth Games do not meet this mandatory compliance and do not have an Internal Complaints Committee (ICC), a legal requirement under the Prevention of Sexual Harassment (PoSH) Act, 2013.5

The government’s committee headed by boxer M C Mary Kom that looked into the allegations of the wrestlers who have been protesting at Jantar Mantar in New Delhi against Brij Bhushan Sharan Singh, who runs wrestling in India, has flagged the absence of the ICC at the Wrestling Federation of India (WFI).

This is a sorry state of affairs that reflects poorly on all State functionaries, public authorities, private undertakings, organizations, and institutions that are duty bound to implement the POSH Act in letter and spirit.

The Apex Court has issued certain guidelines regarding the proper the functioning and the enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The guidelines are:

• The appropriate Governments must undertake a time-bound to verify whether all organizations have constituted Internal Complaints Committees (ICCs), Local Committees (LCs), or Internal Committees (ICs) in compliance with the PoSH Act.
• The concerned organizations must ensure that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, contact details of the designated person(s), the procedure for submitting a complaint, as well as relevant rules, regulations, and internal policies are readily available on their website.
• Authorities/managements/employers must take immediate and effective steps to familiarize members of the ICCs/LCs/ICs with their duties and the proper manner in which an inquiry ought to be conducted upon receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is concluded and the report submitted.
• Authorities/managements/employers must regularly conduct orientation programmes, workshops, seminars, and awareness programs to up skill members of the ICCs/LCs/ICs and to educate women employees and women's groups about the provisions of the Act, the Rules, and relevant regulations.
• Appropriate Governments have eight weeks to comply with these directions and inform the SC about their compliance through an affidavit.

CONCLUSION

The fundamental rights of women to “gender equality and right to life and liberty”, bestowed under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India.

Courts underscore the importance of recognizing and addressing power imbalances within the workplace, where women are often subjected to harassment and discrimination. By actively addressing the gaps in POSH Act enforcement, the court acknowledges that sexual harassment is not only an individual issue but a systemic problem that demands collective action. This highlights the need for broader societal change and an examination of deep-rooted gender biases that perpetuate harassment and hinder women’s progress in the professional sphere. Moreover, the Supreme Court’s directives serve as a reminder to employers and society at large that women’s safety and well-being are non-negotiable rights that must be upheld. The court’s stance reinforces the notion that workplaces should be spaces where individuals can thrive, free from the fear of harassment or intimidation. This creates a positive ripple effect on the overall social fabric, fostering a culture of respect, equality, and inclusivity. It also encourages women to enter and remain in the workforce, empowering them to achieve their full potential and contribute meaningfully to society.

The Supreme Court’s efforts to strengthen the enforcement of the POSH Act are a commendable stride towards ensuring women’s safety and dignity in the workplace.

However, it is crucial for all stakeholders, including employers, employees, and the judiciary, to wholeheartedly embrace these directives and actively work towards creating a transformative work environment that upholds the principles of gender equality and respect.

By doing so, we can pave the way for a society where women can thrive professionally, unburdened by the pervasive threat of sexual harassment, and where workplaces become true bastions of empowerment, inclusivity, and security for all.

1 Aureliano Fernandes Vs. State of Goa and Ors. [Civil Appeal No. 2482 of 2014]

2 Vishaka & ors. V. State of Rajasthan & ors. (1997) 6 SCC 241

3 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

4 Aureliano Fernandes Vs. State of Goa and Ors. [Civil Appeal No. 2482 of 2014]

5 Indian Express, Investigation on ICC dated 04.03.2023