Celebrating 10 years of PoSH Act

Celebrating 10 years of PoSH Act

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act 2013 (PoSH Act) successfully completes 10 years in December 2023.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act 2013 (PoSH Act) successfully completed 10 years in December 2023. As a nation, India should be proud of its achievement in being one of the few countries to enact a special law to define and address this important and highly sensitive area concerning the workplace.

The law was enacted in the backdrop of certain untoward incidents that necessitated proactive legal measures to contain harassment of women at the workplace. The Supreme Court pursuant to the Bhanwari Devi case (aka the Vishaka judgment) consistent with an individual’s fundamental right to equality and other rights guaranteed by the Constitution of India, had issued certain guidelines for employers on prevention of sexual harassment. The progressive approach adopted by the Ministry of Women and Child Development through enactment of PoSH Act and rules, amendment of the Indian criminal laws(by way of the Criminal Law (Amendment) Act, 2013), and the introduction the Sexual Harassment Electronic Box, has witnessed massive success. Coupled with the #MeToo movement, the awareness of this topic in India has been significant.

The PoSH Act introduced some unique and interesting concepts, as below.

Extended Workplace

As per the POSH Act, ‘workplace’ includes not only the office space but also any place visited by the employee arising out of or during the course of employment. It also includes a dwelling place or house. This expanded definition was even more relevant during the Covid-19 lockdown as work shifted to remote and the workplace was no longer a physical location. Accordingly, there emerged new challenges such as cases of online harassment.

Neutrality ofInternal Complaints Committee (IC)

The law requires every employer having at least 10 employees at its workplace to constitute an IC. In order to ensure its independence, IC must have an external member who is froman NGO or association committed to the cause of women or a person familiar with issues relating to sexual harassment.

Additionally, the IC’s term is limited to 3 years in order to ensure that the member does not stay on the committee forever.

Local Committee (LC)

The government is required to set up an LC in each district to investigate and redress complaints of sexual harassment. This is relevant in cases where the IC has not been constituted (in case of fewer employees) or if the complaint is directly against the employer.

Interestingly, both the IC and LC have the same powers as vested in a civil court under the Code of Civil Procedure, 1908 in matters of investigation.

Conciliation

The PoSH Act allows the aggrieved woman to request the IC to settle the matter through conciliation, prior to initiating inquiry. It is an informal method of resolving complaints. If successful, it eliminates the need for a formal inquiry / investigation process. Luckily, the law makes it clear that monetary settlement should not be a basis of conciliation. This ensures that mala-fide complaints are not filed for monetary gains.

In addition, the law prescribes certain interim measures that the aggrieved woman may request during the inquiry process.

Confidentiality

Recognising the sensitivity of matters pertaining to sexual harassment, the PoSH Act mandates that such complaints and connected information remain confidential, with penalty for non-compliance. It stipulates that information pertaining to workplace sexual harassment shall not be subject to the Right to Information Act, 2005. It encourages an aggrieved individual to speak-up without fear of reputational loss.

Penal Consequences for Non-Compliance

If an employer fails to constitute an IC or does not comply with the requirements prescribed under the PoSH Act, a monetary penalty of up to Rs. 50,000 may be imposed. However, interestingly, repetition of the same offence could result in the punishment being doubled and cancellation / non-renewal of the company’s business registrations. There is also a requirement under corporate laws for the company to confirm its compliance with the PoSH Act. Hence, there is a significant emphasis to ensuring compliance with the law.

It is also pertinent to note that all offences under the POSH Act are non-cognizable.

Case Law

In the 10 years, there has been considerable developments in terms of case laws on PoSH Act which should be carefully analysed by employers and their ICs. In a first of its kind judgment, the Bombay High Court issued guidelines to ensure confidentiality of hearings pertaining to matters of workplace sexual harassment of women. The guidelines issued by the court, in the matter of P v. A & Ors. (PoSH Confidentiality Guidelines), relate to inter alia the manner in which such cases should be heard and handled, how decisions should be recorded, pronounced and communicated and the precautionary steps to be followed while reporting such matters including by the media.

The PoSH Confidentiality Guidelines serve as a working protocol

for the courts. The objective is to protect the identities of the parties from even accidental disclosure. The Bombay High Court also pointed out that these arebare minimum guidelines to be followed by the courts and are subject to necessary revisions or modifications.

Recently, the Supreme Court in the matter Aureliano Fernandes v. State of Goa focused on strict enforcement of the PoSH Act. The court deliberated on requirement to educate women at workplaces about the law, process of complaint and investigation, consequences for sexual harassment and lodging malicious complaints and remedies against dissatisfactory investigation reports. Employers must upskill their ICs and familiarise them with their duties and investigation process.

Conclusion

The PoSH Act aims at providing every woman (irrespective of her age or employment status) a safe, secure and dignified working environment, free from all forms of sexual harassment, whether quid pro quo or hostile work environment. However, this is only the beginning - more work is needed by both the employers and the government in further promoting the law and ensuring that robust and well-experienced ICs and LCs are appointed. This will ensure correct, speedy and confidential redressal of grievances.

As India celebrates the 10th anniversary of the PoSH Act, we continue to lead the world by example.

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.