Posh Act - A Blessing To Working Women
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Category: General Law
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POSH ACT: A BLESSING TO WORKING WOMEN
Akshay Kumar S B, School of Law, SASTRA University
ABSTRACT
By nature women are multi-faceted, that is they have the capacity to manage both domestic and professional spheres. However, circumstances have proved that a woman cannot be safe in both those spheres which take up most of her life; thus the law has a duty to protect her. In the case of the domestic sphere, the offences against women in the household inflicted by the family members or the relatives, are taken care of by legislations like the Domestic Violence Act and further penal provisions provided in the criminal laws of the land. In the case of the professional sphere, there was no provision or law to protect a woman in her work environment. This vacuum in law was recognised in the landmark judgement provided by the Apex Court in the case - Vishaka v. State of Rajasthan.
The Supreme Judicial Authority has recognised the lacuna in law regarding the protection of women in the work place and thus granted the Vishaka Guidelines. The guidelines served as the foundation for making the POSH Act of 2013. This article delves into the circumstances which led to the mandated the need for laws regarding protection of women from sexual harassment at workplaces. An analysis of the Vishakha Guidelines and the POSH Act has been made in this article. Thus, the law has once again ensured that Article 15(3) of the Constitution is upheld and protection is provided for women in the professional places.
INTRODUCTION
Women have become one of the major components of the working population of our nation, thus securing a healthy work environment for them to work was deemed a necessity; thus the Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act,
2013 was enacted. The main principle behind this act is that every woman has a right to work
and she should be able to do so without fear of harassment and violence. On the 3rd of September 2012, this act was passed in the Lok Sabha by the Ministry of Women and Child Welfare. The Supreme Court in the landmark judgment of Vishakha & ORS v State of Rajasthan framed the ‘Vishakha Guidelines’ that laid the cornerstone for this particular act. The POSH Act was passed by the Parliament after seventeen of the framing of the guidelines by the Apex Court in exercise of its power of judicial activism. Subsequent to the passing of this act, it was put into effect on 9th of December 2013. The Government further stated that strong actions will be taken against those who fail to comply with the POSH Act. VISHAKA’S STORY In 1985, Banwari Devi, a Rajasthani woman from the Bhateri district, was employed by the Women Development Project.
In the initial stages, as a part of her work she took up an issue of attempted rape of a woman from the neighbouring village and other similar issues. Following those issues, she started a Government Campaign to stop and prevent the incidence of child marriages. The people in the community and society were not supportive and not acceptive of her campaign. One such Ram Karan Gurjar had arranged for the marriage of his minor daughter with the help of his family. Bhanwari as a part of her job struggled to persuade and convince the family to not move ahead with the marriage of their minor daughter. The attempts on her part were futile. The marriage was cancelled on 5th of May, 1992 by the Sub-Divisional officer and the DSP. Somehow, the marriage took place the following day, and the police paid no notice to the marriage and remained silent.
Later on, the locals learned that it was Bhanwari's action had prompted the police visit. This information provided the Gujjar family with the motive to seek revenge. The mere action of Bhanwari carrying out her work initiated the Gujjar family to act on their vengeance and on September 22, five members of the Gujjar family and Shravan Sharma savagely attacked her and her husband, after which she was raped. The police were hesitant to file the case, which caused a delay in the inquiry which should have been conducted at the earliest post the filing of the case. The tardy medical examination took place after 52 hours of occurrence of the incident, and the medical examiner did not file any commission of rape in the medical report. Due to an absence of adequate evidence and political acutance, the accused succeeded in getting an acquittal from the trial court.
This caused a huge uproar from many organizations and women's rights activists. These organizations clubbed together to get justice for the aggrieved woman. A PIL was filed by a women's rights group known as “VISHAKA”. THE LEGAL BATTLE OF VISHAKA The PIL concentrated on enforcing women's fundamental rights as stated in Articles 14, 15, 16,
19 and 21 of the Indian Constitution. This brought up the subject of how important it is to shield
women from sexual harassment at work. An important question which was raised was whether sexual harassment of women at work place was a violation of the woman's right to life, liberty, and equality; it also questioned what the employer should do when one of his employees is a victim of sexual harassment. The strain was that there was no specific legislation regarding the specific problem of sexual harassment of women at work place. The petitioner claimed that there is a legal escape pertaining to the provisions for a safe workplace for women. THE EVOLUTION OF LAW TO PREVENT SEXUAL HARASSMENT Sections 354 and 354 A of the Indian Penal Code, 1860 discuss the offences of sexual harassment. The concern is that the particular situation of sexual harassment at work place is not addressed by these provisions.
Thus, the need for a definite legislation that is appropriate and effective for this specific situation. Thus the Hon’ble Apex Court referred to international norms because of the absence of legislations regarding the particular circumstances of the case. Beijing's statement of principles said that the Court of law has the role as the defender of law through which it exercises its independent authority, thus the Hon’ble Supreme Court is the provider of justice and remedies for those who approach it seeking the remedies thereby taking independent actions while functioning as the guardian of law. The court referred to the prohibitions found in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This is found in Article 11 (1) (a) and (f), which mandates that the government take all reasonable steps to end discrimination against women in the workplace.
This resulted in the Supreme Court formulating the Vishaka Guidelines, which were the basis for the 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act. These guidelines were to be regarded as law declared under Article 141 of the Indian Constitution.
AN
ANALYSIS
OF THE VISHAKA GUIDELINES (1997) The Vishaka Guidelines lay down a huge emphasis on the employer's responsibility and duty to prevent sexual harassment before it happens. This requires formulating guidelines, offering instruction and training, and cultivating a respectful work environment. If an incident does occur despite the preventive strategy taken by the employer, the organization ought to have protocols in place for handling it. This covers non-legal as well as legal channels like mediation or counselling and making complaints or pursuing legal action. This includes informing law enforcement officials or agencies about the occurrence, starting an internal inquiry, and taking disciplinary action or suing the harasser.
The word Sexual harassment was defined as disagreeable sexually determined behaviour direct or indirect as physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcoming physical, verbal, or non-verbal conduct of a sexual nature. The guidelines primarily focus on preventive measures, proceedings for misconduct in cases where the offenses fall under the jurisdiction of the Indian Penal Code, 1860, appropriate disciplinary action in the event that a violation of service rules occurs, and redressal mechanisms such as a redressal committee headed by a woman and comprising half of its members as women. Every year, the government must receive a report from the committee detailing the progress of the problem and raising public awareness.
A DIVE INTO THE POSH ACT, 2013 The Parliament passed the Act seventeen years after Vishaka Guidelines was issued emerging from its profound sleep. Although the Act's scope of application is far broader than that of the Vishaka Guidelines but the fundamental structure was provided by the Vishaka Guidelines. The term "workplace" refers to both corporate and private settings as well as the organized and unorganized sectors, whereas the term "aggrieved women" refers to a broad spectrum of women regardless of age or employment status. The legislation stipulates specific deadlines for disobedience, with fines up to Rs. 50,000. The statute creates an Internal Compliance Committee, with a senior female employee serving as the chair, for businesses with ten or more employees. The committee that handles complaints from businesses with fewer resources is the Local Compliance Committee.
When a complaint is directed towards the employer, the Local Compliance Committee handles complaints from businesses with less than ten employees. Section 6 of this Act mandates this. The Civil Procedure Code grants the committee the authority equivalent to that of a civil court. It will start an investigation into that claim. Should there be a preliminary indication of sexual harassment; the committee will forward its conclusions to the police station. The report must be finished and given to either the district officer or the employer. MISUSES AND DISADVANTAGE The Act is being abused a lot because according to section 10 of the act, the individual has been able to exploit a legal loophole, and at the behest of the ladies who have been wronged, the parties reach a conciliation agreement.
Threats against the women who feel wronged may occur, and although a settlement has been reached because of the threats, it is typically onesided. Women are also abusing the statute by filing fictitious lawsuits in order to benefit from them. Notwithstanding the fact that section 14 of the legislation penalizes the false complaint. In certain instances, women take use of the act for their own benefit, but the person filing the complaint is not given any compensation for the losses they have suffered.
CONCLUSION
The POSH Act is a real blessing to working women this Act has ensured a safe and healthy working environment for women. The development of our country is when women contribute significantly towards our economy. Hence, we require an Act to legislate harassment done to women at work. The POSH Act was passed with the concept of a safe working environment for women but this Act is also being misused by women in some degrees. The misuse of the Act must be strictly punished to stop any such further acts. The Act is a real success because it has helped reduce harassment of women at work and has created a safe and healthy working environment.
REFERENCE:
1. THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION,
PROHIBITION AND REDRESSAL) ACT, 2013
2. THE CONSTITUTION OF INDIA
3. INDIAN PENAL CODE, 1860
4. https://www.thehindu.com/news/national/explained-the-indian-law-on-sexualharassment-in-the-workplace/article66854968.ece