Where Do the Men Go?

Muhammed Rafeeque VLegal : the law is simplified..!

A Thought about the ‘Gender Neutrality’ of the ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the 'PoSH Act')” on its ELEVENTH  Anniversary.

Let’s make the fact clear: today, we mark eleven years since the enactment of an exclusive law to address the sexual harassment of women in the workplace. As someone who has worked extensively in this field, I can confidently say that the corporate sector has made significant strides in raising awareness. However, despite these advancements, we must ask:

does the PoSH Act equip us to handle this menace inclusively?

The answer is a resounding no.

Do men experience sexual harassment in the workplace? Yes, numerous surveys in the public domain confirm this. My aim here is not to delve into these reports but to highlight a glaring issue:

Male employees have no recourse under the PoSH Act. A male employee cannot file a sexual harassment complaint with the Internal Committee (IC) established under this law. Why? The reasons for this lack of gender neutrality are not very clear.

Why Is the PoSH Act Not Gender Neutral?

One argument often cited is rooted in the 1997 Vishaka & Ors vs State Of Rajasthan & Ors judgment. The Supreme Court’s recommendations for a law against workplace sexual harassment were based on the safety of women, as the case centered on Bhanwari Devi’s unfortunate fate.

By the time the PoSH Act was framed sixteen years later, the original draft was reportedly gender neutral but was subsequently revised to focus solely on women. The rationale behind this shift remains unclear.

Why Not Change It Now?

Whenever the lack of inclusivity is discussed, a common response is that organizations can adopt gender-neutral anti-sexual harassment policy. Men’s complaints, under such policies, can be handled as “misconduct” under the code of conduct. While this may serve as a stopgap solution, it raises several issues:

1. Lack of Specialized Training for Inquiry Officers (IOs):Section 19 of the PoSH Act mandates skill-based training for IC members to equip them with tools for conducting inquiries and evaluating evidence. IOs handling complaints against male employees may not receive comparable training, leading to a potential gap in procedural rigor.
2. Absence of an External Member (EM):A critical feature of the IC is the inclusion of an External Member with expertise in the PoSH Act. This ensures neutrality, as internal members may have personal relationships with either party. Grievance redressal mechanisms or disciplinary inquiries typically lack this provision, which could compromise the impartiality.
3. No Time-Bound Appeal Mechanism:The PoSH Act provides a built-in, time-bound appeal process for aggrieved parties. Outside of government or PSU organizations, similar mechanisms are often absent in private grievance redressal systems.

The Need for Change

Acknowledging that male employees face workplace sexual harassment and that current makeshift arrangements are inadequate, it is imperative for authorities to consider introducing gender-neutral provisions under the PoSH Act. Progressive nations have already adopted inclusive frameworks; India must follow suit to uphold the fundamental right to equality.

What about the general law remedies?

Currently, women can file criminal complaints under Sections 74 to 79 of the Bharatiya Nyaya Sanhita (BNS) simultaneously, but these provisions apply exclusively to women.

In effect, Men, on the other hand, have no direct legal recourse against sexual harassment under the BNS or any other law.

Can men approach the police for sexual harassment complaints? No. The absence of specific provisions for men highlights a significant gap in the legal framework.

Transgenders are protected under the special law of Transgender Persons (Protection of Rights) Act, 2019

Moving Forward

After eleven years, it could be the time for the PoSH Act to evolve. Incorporating gender-neutral provisions would reflect the realities of modern workplaces and uphold the principles of equality enshrined in the Constitution.

Let us use this anniversary as an opportunity to initiate meaningful dialogue and drive change toward a truly inclusive law.