Development & Changes of Prevention of Sexual Harrasement at Workplace Act by Ankit Tiwari

 Contextualization

 Harassment is a societal inequality that covers any unwanted physical or verbal behavior that offends individuals or humiliates them. Collins dictionary defines harassment[1] as conduct intended to disturb or annoy anybody. Harassment is commonly a behavior that continues over time. Sometimes serious one-time instances can be considered harassment, too.

Harassment can be of different types, one of them is sexual harassment. The term first became codified in United State legislation as a result of continuous cases of sexual harassment in 1970-1980. Over a period of time, it has been appreciated and adopted by a number of legal systems. In 2005, United Nation via an International Labor Organization[2] defined sexual harassment as an unwelcome verbal or physical act of sexual nature which consequently effect unreasonable interfering with an individual’s work or creating an abusive or offensive working environment at the workplace. In plain language, Sexual harassment is any sort of unwelcoming, offensive, humiliating or intimidating sexual behavior. The term is being regularly broadened and expanded through laws, regulations, and statutes.

Sexual harassment can happen with anyone anywhere. However, addressing the sexual harassment situation through the simplistic lens of the ‘workplace harassment issue’ would significantly limit our conceptual understanding. Workplace sexual harassment is an offense through which leads women to compromise their emotional, physical and financial condition. As a result, it leads to problems such as loss of jobs, dignity, social status, and sometimes life loss.   Sadly, sexual harassment in the workplace is a regular curse affecting the individual predominantly women in India. Sexual Harassment at the Workplace is against the principle of Social Equality which is provided in Preamble of the Indian Constitution. [3] It also violates major Rights such as the Right to live and Freedom of work which is mentioned under Section III[4] . Therefore through legislation, it has been penalized in India.

Development of POSH, Act, 2013

The legal system of different countries has responded differently to this issue. The experience of the Indian Judiciary with sexual harassment at the workplace initiated with the case of Vishaka v. the State of Rajasthan. Bhanwari Dev was a social worker at Rajasthan brutally raped in the course of her employment[5]. The litigation was brought against the incident at the Indian Supreme Court. The court found a major missing of legal remedy through which women can protect themselves. In order to enable women from such action, the Supreme Court came up with guidelines for protecting women from sexual harassment at the workplace. Thus this move of the court was a big step in realizing equality among men and women at the workplace[6].

Based on Guidelines of Vishaka v. State of Rajasthan, there are other precedents such as Apparel Export Promotion Council v. A.K. Chopra[7], Francis Coralie v. Union Territory of Delhi[8] and D.S. Grewal v Vimmi Joshi[9] which strengthens the Right to Equal opportunity at the safe workplace. Subsequently, after twenty years ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act’ got enforced on 9th December 2013 in the pursuance of Vishaka Guidelines which were laid down by the Supreme Court in 2005. The purpose of the Act is to provide in to enable a safe workplace for women and protect her from sexual harassment. To achieve purpose act provide guidelines for making an internal complaint committee where the complaint can be redressed at the workplace. This Act is applicable to women who are subject matter to harassment at the workplace. Aggrieved Women[10] is the term that is used in an act for defining such women. According to act, an aggrieved woman covers women of any age who is either employed or not employed. The said definition also covers women who are working in domestic or dwelling house.

For protecting aggrieved women from unwelcoming act or behavior sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: — “(i) physical contact and advances; or (ii) a demand or request for sexual favors; or (iii) making sexually colored remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.”[11] Under Section 3, Act mentions acts from which women need to be prevented which include “(i) implied or explicit promise of preferential treatment in her employment; or (ii) implied or explicit threat of detrimental treatment in her employment; or (iii) implied or explicit threat about her present or future employment status; or (iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment likely to affect her health or safety.”[12]

Section 4 of the act provides guidelines for the establishment of the Internal Complaint Committee (ICC) for the redressal of aggrieved women.[13] The committee will act as a platform to record, enquire and prevent sexual harassment acts within the workplace. Future Section 10 states to conduct conciliation at the instance of aggrieved women. If a compromise is reached, the committee shall not conduct the inquiry of complaint. However, if the employer fails to honor compromise, the committee may conduct the inquiry. The aspect of confidentiality, penalties, interim relief, inquiry, and other such concerns is being enabled in the POSH, Act 2013.

Challenges

The Act through the above mentioned provisions ensures the best possible prevention process. This Act also resorts the lacunae which were present in the prevision legal system. But the Act came up with limitations which challenges mentioned execution present in the law. Challenges are divided into two sections that are mechanism shortcoming and legal inconsistency.

  1. Mechanism Shortcoming

The mechanism shortcoming deals with the procedural problem that individuals can face while accessing justice through the provided process. This section can be divided into three sub-sections.

  1. i) Definition Ambiguity – The Act mentions ‘aggrieved women’ under its preview which future defines it to ‘any women’. This implies that legal protection in this act is only provided to a limited section of the worker. Through which essential purpose of Act that is a holistic safe working environment for the worker cannot be achieved. This Act’s future restricts the geographical dimension of ‘workplace’, thereby framing numerous situations out of the act’s applicability. Consequently, if there is a case of sexual harassment between co-workers which happen due to outside workplace although relationship in build at the workplace. Then in that condition, the structural mechanism of Act falls down.[14] The definition of ‘Sexual Harassment’ in itself is outdated as it does not cover electronic means through which it can happen.
  2. ii) Composition of Complaint Committee- Internal and Local Complaint Committee are bodies prescribed by the act through compliant can be addressed and redressed. It is mentioned that the complaint committee should have women who have previously shown ‘commitment to the cause of women’. No requirement has been laid down to explain whether to what extent there is a need to commit to the cause or what work should they have done in that specific field. Additionally, the act mentions ‘expert in the field of law’ as a qualification for a member. Having expert knowledge of the law should be considered as too broad standards for an Act like sexual harassment.                      

iii) Monetary loopholes- This Act provides no legal liability on the employer to maintain a safe workplace environment. Under Chapter VI of the Act put employer under duty but there is no such mandatory provision for adhering prescribed duties, i.e. no penalty in case of non-compliance.

  1. Legal Complexity-

 i) Legislature Drafting Issues- The language which is used in Act is vague, subjective and incoherent. Act mentions ‘ unwelcome’ and ‘reasonable man’ which allows a large scope of subjective interpretation. Consequently, subjective interpretation will lead to the non-uniform application of the law. This shows carelessness in legislature drafting of the act.

  1.  ii) Legal Protection to victimizer- The Act does not have legal protection provided for the victim. This takes the victim to the position where there is a dilemma of whether to file a complaint or not. The absence of protection provision can itself de popularize the use of POSH mechanism at workplace

iii) Right to Equality- The intend of this act is to enable women with legal protection so to avail right to work with safety. With the development  of society and its aspect, the nature of sexual harassment is not left limited to women. The same offense can be committed by same-sex employee and employer or by a woman against men. The recent development in liberal law and societal morality has changed the nature of sexual harassment from gender-specific to gender-neutral. For this reason, private companies for their workplace are implementing gender-neutral POSH Policies. In 2015, the University Grant Commission enabled gender-neutral POSH Guidelines for Universities. Through Precedents, Corporate Policy and Institutional Guidelines for Gender Neutral treatment of Sexual Harassment at the workplace, the need for enlarging the scope of the POSH Act, 2013 should be taken into consideration.

Conclusion 

The right of work is one of the core rights which is granted to an individual by the state. It has direct nexus with Right to Life with Dignity which itself is Fundamental Right. In Prevention of Sexual harassment Act case journey initiated from the need of society on which present and later legislature develop. But the presence of a static legal system is not enough; the changes regarding governance and administration of the POSH Act mechanism at the workplace also need to be updated. It is also required that the law should be internalised in human behavior through awareness and campaign, in order to have equal work culture. Lastly, the Legal system, in this case, needs to match the progress of society and should be upgraded. Gender-specific law might be a need for the 1990s through which the Right to Equality can be achieved but to avail Right to Equality in the present era needs the law of gender-neutral.  Through these many suggestions, the state can make ensure that through legal system Equality at the workplace will be achieved to the individual.

[1] Harassment, Collins English dictionary, Chicago, 15th ed.

[2] Deirdre McCann, Sexual harassment at work: National and international responses, ISBN 92-2-112680-3 (softcover), International Labor Organization, Retrieved on December 2, 2019, Retrieved from (https://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—travail/documents/publication/wcms_travail_pub_2.pdf).

[3] The Constitution of India, 1950, Preamble (Justice, social, economic and political).

[4] The Constitution of India, 1950, Art. 14, 19(1)(a) and 21.

[5] Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241, AIR 1997 SC 3011, (1998) BHRC 261, (1997) 3 LRC 361, (1997) 2 CHRLD 202.

[6] Gibran Naushad and Susanah Naushad, The Sexual Harassment of Women at Workplace: An Unmanned territory, India Law Journal, Retrieved from at 15-2-2020, Retrieved from (https://www.indialawjournal.org/archives/volume8/issue-1/article9.html).

[7] 1999 (1) SCALE 57, AIR 1999 SC 625, [2000] 1 LRC 563, (1999) 2 C.

[8] 1981 AIR 746, 1981 SCR (2) 516.

[9] (2009)2SCC210.

[10] S. 2(a), The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013.

[11] S. 2(n), The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013.

[12] S. 3, The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013.

[13] S. 4, The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013.

[14] RupanDeol Bajaj v. K.P.Singh Gill, AIR 1996 SC 309.

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