Effectiveness Of Sexual Harassment Act (2013) And The Gaps In Addressing Issues Like Workplace Inequality
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Category: Labour & Employment
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EFFECTIVENESS OF SEXUAL HARASSMENT ACT (2013)
AND THE GAPS IN ADDRESSING ISSUES LIKE WORKPLACE INEQUALITY
Bhumika Jain, Bharti Vidyapeeth New Law College, Pune
ABSTRACT
India is facing a lot of crimes against women recently, and this is clearly evident from the heinous cases of R. G Kar Medical College Rape case, Nirbhaya Case, Hyderabad gang rape case and many others. At the same time, the false prosecution against men, by women is on a rise. In this research paper, we look into these matters in the background of present laws like the POSH Act and other social scenarios, comprehensively. It aims to look into the evolution, rules, effectiveness and challenges of the Act along with the gaps in addressing issues like workplace inequality and what all could be done about the same. The main objective of this paper is to improve the current scenario and make sure that justice isn’t delayed or denied to any human being.
Also, the better implementation of this Act is the need of the hour because the Justice system of India and its legitimacy is being highly questioned, now. Hence, we look into the ways to improve the situation, herein. Keywords: Sexual Harassment of women at workplace (prevention, prohibition and redressal) Act (POSH Act), Gender inequality at workplace, Vishaka Guidelines, DEI approach to management, #MeToo Movement
Introduction
Historically, women were bound to the household chores and the four walls of their homes. But, with time, the scenario changed and women came out to the workplace in order to support their families financially. But, little did they know that the workplace would become a new place for the crimes against them. The patriarchal mindset and the gender-based discrimination prevalent in the society led to the legal and social issue of sexual harassment at workplace. Hence, to fight this, the Government of India’s Ministry of Women and Child Development notified the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act) in 20131.
In this research paper, we will look into the effectiveness of this act and its implementation along with the gaps in addressing the issues of gender inequality which is a major contributing cause of the sexual harassment at work place. The objectives of this research are-to assess the awareness of this provision, analyse its impact and identify the gaps in its current framework and redressal mechanism. Lastly, it is followed by a few suggestions to improve the current scenario. This Act is very important, in order to prevent crimes at the workplace and provide women with the human rights that they have been longing for. “No woman shall be subjected to sexual harassment at any workplace. ” states Section 3(1) of the Act.
2 It un-welcomes direct or implied acts of physical contact, demand for sexual favours, making sexually coloured remarks and showing pornography or any other unwelcoming remarks of sexual nature. It recognises the right of every woman to a safe and secure workplace environment. It states that an Aggrieved woman is the one who either visits a workplace, or is a student or is a working lady whether in the capacity of regular, temporary, ad hoc, or daily wages basis. Whereas, a workplace is defined as any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey3. It includes both organised and unorganised sectors.
1 POSH Act,No.14 of 2013,§2 (Ind.)
2 POSH Act,No.14 of 2013,§3(1)(Ind.)
3 POSH Act,No.14 of 2013,§2(o)(Ind.)
Vishaka Judgement and other cases This Act was enacted 16 years after the Vishaka Judgement, i. e. , the landmark case of Vishaka and others v. State of Rajasthan4. In this case, in 1992, Bhanwari Devi, a social worker with the Women’s Development Project of the Rajasthan government was gang-raped by five men after she tried to prevent the marriage of a one-year-old girl. As a result, the court laid down the guidelines in 1997, mandating every employer to provide a grievance redressal mechanism relating to workplace sexual harassment and enforcing the right to gender equality of working women. The term ‘sexual harassment’ was first defined, herein. 5 In framing these guidelines, the SC had relied on the Convention on Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of United Nations, in 1979, which India has both signed and ratified.
These Guidelines issued under Article 32 of the Constitution are to be mandatorily followed by all the organisations. 6 Further, this case was followed by a case, wherein, the superior officer of the Council was held guilty of harassing a subordinate female employee at the workplace. Through this, the Court widened the definition of sexual harassment as not necessarily limited to physical contacts. 7 This Act was a response to the growing impact of sexual harassment in Indian workforce. This is evident from the statistics of National Crime Records Bureau (NCRB) which state that India has seen more than 400 cases of sexual harassment at workplace each year from 2018 to 2022, with 1160 complaints reported by companies in the year 2022-23, i. e. , the highest in the past decade.
8 In another case , the court clarified that not all physical forms of contact from a man towards a woman can be constructed as sexual harassment. It is crucial to gauge the undertone and
4 Vishaka and others v. State of Rajasthan,(1997) 6 SCC 241(Ind.)
5 Diksha Munjal , What is POSH Act and why has the SC flagged lapses in its implementation, THE
HINDU(May 21,2023)https://www.thehindu.com/news/national/explained-the-indian-law-on-sexualharassment-in-the-workplace/article66854968.ece
6 Pallavi Pareek, POSH Act
11 key notes from judgements in sexual harassment cases since
2013.,UNGENDER(January 10,2020)https://www.ungender.in/posh-act-11-lessons-from-judgments-sexualharassment-cases-since-2013/
7 Apparel Export Promotion Council v A.K Chopra,(1999)S.C.625(Ind.)
8 Ashli Varghese, Over 400 cases of sexual harassment at work logged every year since 2018 ,BUSINESS
STANDARD ( Aug. 5, 2024)https://www. business-standard. com/india-news/over-440-sexual-harassment-casesin-indian-workplaces-a-year-during-2018-22-124081401697_1. html intent of sexual behaviour. 9 Further, in one of the cases, the Court clarified that a verbal statement from a man towards a woman with a negative undertone alone can not suffice as a complaint of sexual harassment10. In yet another case , the Court stated that sexual harassment at the workplace can also mean a hostile and oppressive work environment for a woman employee when power and authority from a male member of the organization are being used to force her to accompany him on his outstation travels and late-night meetings. 11 Research Methodology In this research paper, we look into the description of the POSH Act and the idea of gender inequality in the workplace, qualitatively.
Firstly, we understand the rules and the requirements of the Act, then we look into the need, objectives, effectiveness and the criticism of the same. This is done through a proper fact-based analysis which includes the reference of various case laws, a few statistics and landmark judgements. The current social scenario is also viewed to derive proper solutions for filling the gaps of implementation of the Act. Lastly, the paper is concluded with a few suggestions to improve the current scenario. Review of Literature 1. Handbook on Sexual Harassment at Workplace by Government of India’s Ministry of Women and Child Development12 This handbook states that the key elements of Workplace Sexual Harassment include an unwelcome (feels bad, is illegal and unwanted) sexual act whose experience is subjective in nature.
Herein, it is the impact and not the intent that matters and it is often in the matrix of power that such acts occur. Such an inappropriate behaviour has an impact on both personal 9 Shanta Kumar v. Council of Scientific and Industrial Research and Ors,(2018)156 FLR 719 Delhi High Court (Ind. )
10 K.P.Anil Rajagopal v. State of Kerala,(2018)1 KLJ 106 Kerala High Court(Ind.)
11 Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust and Ors.,(2015)SCC OnLine Del
11026(Ind.)
12 n.d., “Handbook on sexual harassment of women at workplace act,2013.”,MOSPI.GOV.IN
https://mospi. gov. in/sites/default/files/main_menu/POSH_Act/Handbook_Sexual_Harassment WomenWorkplace. pdf and professional lives of women which includes anxiety, depression, withdrawal, decreased work performance, increased absenteeism and defamation, etc. In 2010,the High Court of Delhi endorsed the view that sexual harassment is a subjective experience and should be analysed from the viewpoint of complainant along with the analysis of the perspectives of men and women.
13 Workplace sexual harassment includes two common forms of inappropriate behaviour: Quid Pro Quo or ‘this for that’ experience (implied or explicit promise of preferential/detrimental treatment in employment; implied or expressed threat about her present or future employment status) and Hostile Work Environment (Creating a hostile, intimidating or an offensive work environment; humiliating treatment likely to affect her health or safety). In the Act, it is stated that an Employer is a head of a workplace of government or local bodies; manager, or controller of a private workplace; or an employer of a dwelling house. Such an employer must act as a preventive authority, i. e. , should create a detailed policy, ensure awareness on issues and constitute a trained Complaints Committee.
The employee can expect a trained, skilled and competent complaints committee that responds to the grievance fairly. The Complaints Committee include Internal Complaints Committee (ICC), Local Complaints Committee (LCC) and External members on the Complaints Committee. These committees are mandatory as per the Vishaka Guidelines. This is evident from the case in which the Madras High Court awarded damages to an employee for non-constitution of a complaints committee by the employer.
14 The ICC includes a Chairperson (Women working at senior level as employee; if not available then nominated from other office/ units/ department/ workplace of the same employer), minimum 2 members (from amongst employees committed to the cause of women/having legal knowledge/experience in social work) and other members (from amongst NGO/associations committed to the cause of women or a person familiar with the issue of Sexual Harassment). The Act states that, for redressal, an aggrieved woman who intends to file a complaint should submit six copies of the written complaint, along with supporting documents and names and
13 Dr. Punita K. Sodhi v. UOI and Ors. W.P.(2010)
14Ms. G v. ISG Novasoft Technologies Limited,Madras High Court addresses of the witnesses to the ICC or LCC, 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/ LCC 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, psychologists, 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. The ICC must complete the inquiry within 90 days and issue the report within 10 days from the completion of the inquiry. Next, the management must act on the ICC report within 60 days of receipt.
Further, the statute prescribes the punishments and compensation that may be imposed by an employer on an employee for indulging in an act of sexual harassment. Also, the confidentiality of the aggrieved must be maintained. The Act states the consequences of non-compliance to the Act wherein an employer fails to constitute an ICC or does not comply with the requirements prescribed under the Prevention of Workplace Sexual Harassment Act, a monetary penalty of up to INR 50,000 may be imposed. A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses. It is also pertinent to note that all offences under Prevention of Workplace Sexual Harassment Act are non-cognizable. 2.
IMD Blog on Gender Inequality in Workplace15 Furthermore, gender inequality is still evident in all levels of businesses in the form of wage disparities, lack of representation of women in leadership, gender stereotype, sexual harassment, difficulty in work life balance, and etc. The consequences of workplace gender equality affect both the professional and the personal lives of the lady. These include economic drawbacks wherein women are subjected to no promotion or low compensation; mental health implications wherein the women feel drained and burnout as a result of sexism and discrimination in the work environment. Also, if the women are not included in key decision-making processes relating to innovation, then the
15 n.d., Leadership Gender inequality in the workplace ,IMD(May
2024)https://www. imd. org/blog/leadership/gender-inequality-in-the-workplace/ modern approach to management of gender diversity, equity and inclusion is hindered, leading to the stunted innovation in the company. Hence, there is a need to combat this gender inequality at work by taking steps like providing equal pay and transparency, development and mentorship programs, flexible work arrangements, anti-discrimination policy and addressing unconscious bias. In New York, there are transparency laws which require employers to list salary ranges in job description in order to benefit employees. This can be followed in India to support the idea of DEI. Apart from this, the companies can support women through leadership programs. Also, the idea of flexible work hours for women obliged with family responsibilities and paternal leave for men can be of great help. 3.
Evolution and the need for the Act Earlier, the legal provisions regarding sexual harassment of women at workplace was largely limiting and there was no proper redressal mechanism for the same. Hence, with the increasing roles of women and the crimes against them in the working sectors, there was a need for strong legislation for them. 4. Effectiveness of the Act This Act was brought in, and it positively impacted society by raising important conversations about gender equality and workplace safety. This Act mandated awareness campaigns and establishment of Complaints Committee.
5. Challenges16
The challenge faced by the Act is the lack of implementation of the rules, specifically in the small-scale industries and the unorganised sectors. The fear of social stigma and retaliation leads to a great number of cases going unreported. This states that the legislation has not been able to bring about a proper and positive social 16 Ikshitha2629 , Navigating the legal terrain: an in-depth analysis of judgements related to prevention of POSH Act , 2013, LEGALSERVICEINDIA https://www. legalserviceindia. com/legal/article-14722-navigating-thelegal-terrain-an-in-depth-analysis-of-judgments-related-to-the-prevention-of-sexual-harassment-posh-act. html change yet. The social and cultural barriers impact the scenario negatively.
Also, the lengthy legal processes and delay in complaint resolution is a big problem along with inadequate reporting of the instances, which is a widespread concern. Next, there are concerns regarding digital communication and the related online harassment, also. It has been observed that women are misusing their rights under this Act, which can be highly detrimental against men and their rights. This was observed in a case and therein the court levied a fine on the complainant for filing a false complaint17. Hence, it’s very necessary to prevent such practices which can be ensured only when women stand for and stand by other women in fair terms. This states that the burden of proof in such trials is a sensitive subject since there must be a balance between safeguarding of victim’s rights and maintaining fairness to the accused.
Lastly, it fails to consider harassment experienced by men and the LGBTQ+ Community. This states that this law is gender biased. This is a reason for the gender inequality in the workplace. Most of the time, the LGBTQ Community faces a lack of job opportunities. The harassment cases against them, and men, go unnoticed and un-reported. Hence, the major difficulties with the Act include legal interpretations, procedural complications and societal dynamics. Different courts and tribunals interpret this law differently which leads to confusion and ambiguity for both employer and employees in adherence to the laws. 6.
National Government Portal of India This portal acts as a major site for the implementation of the Act, as it involves many links through which a complainant can find details regarding Contacts of State and National Commissions for Women, suggest tags, comment and share the same. 7. Impact of #MeToo Movement In 2006, civil rights activist Taran Burke used the phrase ‘Me Too’ to raise awareness about sexual harassment. This picked up popularity in 2018 wherein a lot of people started speaking
17 Anita Suresh v. UOI and Ors. in W.P.,Delhi High Court
about their experiences of being harassed by male co-workers. This movement impacted the implementation of this Act in the workplace as it not only brought awareness, but also brought justice to a lot of ladies. Method This is a qualitative-research which is descriptive in nature. Suggestions Over the years, the international community has developed benchmarks that provide guidance on what the laws regarding workplace sexual harassment should look like in practice. These include-the recognition of workplace sexual harassment as a form of human rights violation and gender specific violence. These aim at advancing women’s equality and providing the domestic workers with the right to enjoy effective protection against all forms of abuse, harassment and violence.
Converting these concepts into practice along with constant monitoring and adaptation to changes can help in improving the scenario. Every organisation must make sure that their policy relating to the POSH Act, has been effectively communicated to all workers, details of both formal and informal ways of complaining is available to the workers, a competent complaints committee has been set up and men and women are included in building a tolerant work culture. Also, the implementation mechanism should be strengthened, awareness and education should be enhanced, multistakeholder collaboration should be encouraged and periodic audits, marginalized groups should be empowered and evaluation should be incorporated. 18 Now, in order to empower a future of gender equality in the workplace, a multifaceted approach should be used.
A strong DEI approach is a must along with continuous evaluation and adaptation in order to fill the gaps in addressing issues like workplace inequality. Hence, the companies must have zero tolerance policy towards sexual harassment. Also, the employee must understand the company policy, be conscious of inappropriate behaviour, seek help as soon as possible and document every incident in detail and keep all evidence.
18 Sharanya Kashyap, Effectiveness of the sexual harassment of women at workplace act,2013. INDIAN
JOURNAL OF LAW AND LEGAL RESEARCH https://3fdef50c-add3-4615-a675a91741bcb5c0.usrfiles.com/ugd/3fdef5_8574da8daef949f7b0dc8789fcfe3caf.pdf
Conclusion
Prioritising prevention and establishing a redress mechanism, which comprises of 50 per cent women, a woman chair and an external third-party expert, is India’s innovative model in responding to working women’s experience of sexual harassment. This method can be of great help if implemented properly along with adequate changes, in both law and practice to meet global benchmarks. To get there, workplaces in India today must rise to the requirement of promoting gender equality. Hence, it can be concluded that though this Act has improved the scenario, there is a long way to go to achieve a safe workplace for all the human beings in India.