She-Box Portal And POSH Act, 2013 - Analyzing Its Effectiveness In Combating Workplace Sexual Harassment In India
Author: LawSphereX
Category: Labour & Employment
Published:
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SHE-BOX PORTAL AND POSH ACT, 2013: ANALYZING ITS
EFFECTIVENESS IN COMBATING WORKPLACE SEXUAL
HARASSMENT IN INDIA.
Mansi Sanjay Mandawgad, ILS Law College, Pune
ABSTRACT
Safer working conditions remain a challenge in achieving gender equality in many organizations. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, also known as the POSH Act, and the SHe-Box portal together form a legal framework to address sexual harassment and grievances through a digital platform. This research is done to understand the effectiveness and efficiency of the Posh Act and the SHe-Box portal. With the help of a mixed approach of qualitative methods, case studies, and analyses the research paper studies the POSH Act and the SHe-Box Portal in depth and with various associated factors. It also mentions the examples of cases that are related to the sexual harassment in the workplace and their analyses. The findings of the research state that the SHe-Box portal has ensured that access to justice is enhanced.
The success of the Portal and the Act would depend upon the awareness regarding the measures for sexual harassment at the workplace, the effective involvement of the IC in the process, etc. This research paper brings attention to the fact that an allinclusive strategy needs to be adopted to make and promote a gender-neutral environment in the workplace. Keywords: Sexual harassment, POSH Act, SHe-Box portal, workplaces, victim, Vishakha guidelines.
Introduction: Workplace sexual harassment is an unescapable issue that undermines gender equality, productivity, and workplace morale. Sexual harassment at the workplace is not just related to the violation of one's dignity but also undermines the aspects of fairness, equality, and most importantly respect at the workplace. Despite the fact that the POSH (Prevention of sexual harassment) Act of 2013 was implemented, some leakages were still found in its application, and mechanisms to address and redress these issues were challenging. A country like India which has a huge population of around 14 crores and almost half of it constitutes the female population with around 32. 8% of the female population in the workforce there needs to be proper access to justice for the offense of sexual harassment at the workplace.
Although there is awareness about sexual harassment in the workplace and the legal measures related to it, yet it is seen that a number of cases go unreported due to the fear of revenge, fear of social stigma, etc. Thus, recognizing these challenges, the Government of India's Ministry of Child and Women Development launched the "SHe-Box portal" on 29th August 2024, by Union Minister Smt. Annpurna Devi. This initiative not only enhances access to justice but also delves into leveraging technology for a safe and secure work environment. This research paper critically analyses the working, effectiveness, outcomes, accessibility, etc of the recent initiative and of the POSH Act.
Research Methodology: This paper is qualitative and analytical in nature so that a more comprehensive study could be obtained about the effectiveness of the SHe-Box portal and the POSH Act in addressing the issues related to sexual harassment in the workplace. The research methodology focuses on the collection of primary and secondary data with analysis and to understand the efficiency and effectiveness of the portal. Review of Literature: There are numerous studies done on sexual harassment and the problems associated with it worldwide. Sexual harassment, regardless of where it occurs – in the workplace, educational institutions, or public spaces – is not solely about sexual acts. It involves the offender displaying hostility or misusing their authority over the victim based on the victim's gender
identity. The problem of sexual harassment in the first place lies in the societal structure we have, the dominance of the patriarchal system, cultural norms, stereotypes, gender roles, power dynamics, etc. This paper will give a thorough and holistic understanding of various factors affecting sexual harassment in the workplace, and the development of regulations for the prevention of sexual harassment at the workplace both at the international and national levels to get a better understanding of the topic. History of sexual harassment as an issue: Sexual harassment has a long-standing history, although its formal acknowledgment and characterization as a workplace concern is a relatively new development. In the past, such behaviour was often considered normal or was overlooked, reflecting broader societal patterns of male dominance, gender disparity, and power imbalances in society.
During the pre-20th century, patriarchal societal norms were prevalent, women were considered subordinate to men which led to their mistreatment, and the harassment they faced was often unacknowledged. Later during the Industrial Revolution, women started entering the workforce where they faced exploitation and sexual harassment. However, these issues were not looked into, as these issues had societal acceptance and also there were no legal frameworks for the same. Moreover, during the late 19th century and early 20th century, the “first wave of feminism” ensued where the focus was on the women's suffrage movement which was related to; women’s right to vote, women's right to property, etc this further led to gender equality but the problem of workplace harassment was not addressed.
The “second wave of feminism” (1970s) addressed the issue of sexual harassment at the workplace and gender-based violence through various feminist movements. The term "sexual harassment" was coined by American activist Lin Farley in 1975 to describe women's workplace experiences. With more awareness and recognition, legal frameworks and regulations were developed which are discussed in the later part of the research paper What is Sexual harassment at the workplace? 1Sexual harassment can be termed as any unwanted sexual conduct that causes distress, fear, offense, or embarrassment to an individual. Sexual misconduct may arise in diverse contexts
1 Rape crisis, https://rapecrisis.org.uk/ (last visited Dec,11th 2024)
and take on various forms. The harasser can be of any gender and can have any kind of relationship with the person being harassed. It can be a colleague, teacher, peer, manager, maid, servant, etc. Sexual harassment can be in any form, a few are mentioned below. 2 • Verbal abuse in any form, including making comments or cracking jokes about sexual activities or sexual orientation. • Asking for sexual favours • Making conditions for work or promotion depending upon the sexual favours • Sending inappropriate digital messages • Intersectional harassment These are a few acts of sexual harassment at the workplace however there may be many other forms. The term "sexual harassment" encompasses a wide range of behaviours, including sexual assaults and misconduct.
These incidents can occur in various settings, such as workplaces, universities, informal gatherings of colleagues or employees, educational environments, and even during conversations outside of regular office hours. Socio-Cultural Factors affecting sexual harassment at the workplace: Sexual harassment at the workplace is not merely a legal or organizational issue but an issue that is entrenched in the socio-cultural factors that affect our mindset. These factors affect our attitude, and it has an influence over our responsibilities towards the issue and also the willingness of the victim to speak up for themselves. We can understand how these factors affect the issue in the following points • Patriarchy and Gender Roles: The patriarchal society structure shows male dominance and these power dynamics lead to harassment.
Women are in submissive conditions and are expected to be okay with the partial conditions and are often discouraged from challenging these partial
2 Rainn, https://rainn.org/ (last visited Dec, 11th 2024)
conditions. Gender stereotypes such as women being emotional, have normalized harassment and excused the wrongdoer. • Societal Stigma: Victims are often judged for their dressing, body language, intentions behaviour, etc. There is a constant fear of judgment by the society, therefore they are disinclined to report the issue. • Victim Blaming: It is often seen that victims are blamed in such cases. Their integrity is judged. All these things are done rather than focusing on giving justice and holding the wrongdoers accountable for their acts. • Lack of education and awareness: It can be seen that many individuals are not aware that certain acts are not appropriate and are sexual harassment this happens due to inadequate education. Even today discussions regarding sexual harassment are considered taboo in some conservative societies therefore these issues are ignored.
• Marginalization and intersectionality: Intersectionality is faced by many people in India from lower strata often face discrimination in workplaces and also harassment. Legal reforms and initiatives for workplace sexual harassment at the Global level. Addressing the issue of workplace harassment is on the agenda worldwide as the participation of women in the workforce is increasing there needs to be a safer and secure environment for women. Convention on Elimination of All Forms of Discrimination against Women (CEDAW) is one such example of a step towards eliminating women-related offenses. 3 In International Labor Conference 2009, adopted a resolution regarding the gender equality, and the prohibition 3 Inventory of United Nations Activities to End Violence against Women, https://evaw-uninventory. unwomen. org/en/agencies/ilo, (last visited 11th Dec 2024)
of gender-based violence in the workplace. Legal reforms in the Indian context With the increasing awareness and demands of society government of India has taken some legislative, judicial, and corporate initiatives to address the issue of sexual harassment in the workplace. There are various constitutional provisions, legislative frameworks, and judgments by the apex court in matters of sexual harassment at the workplace which have shown significant impact on combatting the issue. • Constitutional provisions 4 Article 14 grants equality before the law, Article 15 talks about the prohibition of discrimination based on sex, religion, race, caste, and place of birth. Article 19 talks about the right to practice any profession or occupation and the right to a safe working environment and Article 21 gives the right to live with dignity.
These are some provisions that are relevant in matters of sexual harassment at the workplace. • POSH Act 5 The POSH Act, formally known as The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, is legislation designed to safeguard women from workplace sexual harassment. This law applies to various workplace settings, including private, non-governmental, and governmental organizations. All entities are required to adhere to the act's provisions. The POSH Act was enacted to address existing legislative gaps and enhance women's safety in professional environments. According to the Act, Sexual harassment at the workplace includes the following by implication or directly, a. Making sexually coloured remarks
4 Constitution of India, Ar. 14;15;19;21, Acts of Parliament, 1950, (India)
5 The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, Acts of Parliament , 2013, (India)
b. Unwelcome physical, verbal, or non-verbal conduct of a sexual nature c. A demand or request for sexual favours d. Physical contact and advances e. Showing pornography Types of sexual harassment at the workplace a. Physical conduct b. Verbal conduct c. Non-verbal conduct Legally there are two types of sexual harassment recognized a. Quid pro quo harassment: “Quid pro quo” is a Latin term that essentially means “something for something”. This type of harassment occurs when someone who is in a powerful position demands sexual favours from subordinates in exchange for benefits at the workplace such as promotion, job security, a salary increase, etc. Example: A manager demands to engage in a sexual relationship if not done so victim’s promotion may be put on hold. b.
Hostile environment sexual harassment: Hostile environment sexual harassment means when an employee is subjected to any kind of behaviour that is offensive, intimidating, and unwelcoming sexual conduct. As in the case of ‘quid pro quo harassment’ which is related to specific work benefits. Hostile environment sexual harassment is different because it concerns with the overall working conditions of the workplace Example: Touching or patting the victim which may make the victim feel uncomfortable. Or displaying obscene posters, and images in shared spaces at the
workplace. Case studies related to sexual harassment at the workplace:
1) Vishakha vs State of Rajasthan and Ors (Bhanwari Devi Case) 6
Facts: This case is considered a landmark case when it comes to sexual harassment in the workplace. This incident took place in the year 1992 in the State of Rajasthan, wherein a woman (named Bhanwari Devi) from a lower caste who was part of a Women's Development Program in the state of Rajasthan was raped by five men from the upper caste because Bhanwari Devi was trying to stop child marriage in her village. She reported this incident to the police station but no strict investigation was performed. Issue: The issues raised in this case were regarding sexual harassment at the workplace and whether the employer has any kind of responsibility if sexual harassment has occurred to its employee or by its employee. What was held in the court: The trial court held the accused not guilty based on lack of evidence.
Many women groups and women organizations were distressed by this decision of the trial court so these organizations went for an appeal to the Honourable Supreme Court through Public interest litigation to address the issue of sexual harassment at the workplace The Supreme Court ruled that sexual violence in the workplace violates women's fundamental rights, including the right to life, gender equality, and other essential freedoms. The court further determined that such acts also infringe upon women's human rights. Impact of this case on legislation: • Along with the judgment guidelines for the prevention of sexual harassment at the
6 Vishaka v. State of Rajasthan, (1997) 6 SCC 241
workplace, these guidelines are to be followed by the employer, institution, or organization for both the public and private sectors. • These guidelines are popularly known as the “Vishakha guidelines”. • Later on, the Government of India enacted the “The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 also known as the POSH Act.”
2) Tukaram and Anr vs State of Maharashtra (Mathura rape case) 7
Facts: In this case, the tribal girl named Mathura was allegedly raped while she was in custody at the Desai Gunj Police Station. The custodial rape incident occurred on March 27, 1972. Issues: There were many issues involved in the case such as the burden of proof, consent, and twofinger test. What was held in the court: In the sessions court, it was held that there is a difference between ‘sexual intercourse’ and ‘rape’ and it also held that the victim gave consent voluntarily as she was habituated to sexual intercourse. Thus, the learned sessions court had held the defendants not guilty.
Bombay High Court during the appeal held that there is a major difference between ‘consent’ and ‘passive submission’ and said that the consent was not voluntary and hence the defendants were held guilty Later the case went to the Honourable Supreme Court and the court held that there were no injury marks on the body of the victim and no resistance marks of struggle. Also, there was no evidence that the girl was put under the fear of death or hurt. Thus, the consent was considered voluntary. And as she was habitual to sexual intercourse there is a possibility that she might
7 Tukaram v. State of Maharashtra, (1979) 2 SCC 143
have provoked the police. Hence the Supreme Court held the defendants not guilty and acquitted them. Mathura rape is a prime example of ‘custodial rape’ but we can also relate it the sexual harassment at the workplace as the harassment was done by a person in power at the workplace i.e. police station in the present case.
3) Kolkata rape-murder case
Facts: This incident is a recent example of the lack of women's safety in the workplace. On August 9, 2024, at R. G. Kar Medical College and Hospital in Kolkata, a junior resident doctor was raped and murdered by a civic volunteer. The crime occurred in a seminar room while the victim was resting after a 36-hour shift. 8 This incident has questioned the working conditions of doctors in India. What is held: The Honourable Supreme Court of India has taken a Suo moto cognizance of the case and the court proceedings are still going on (as of December 2024). SHe-Box portal: a new initiative to enhance the effectiveness of the POSH Act This is an initiative by the ‘Ministry of Women and Child Development’ of the Government of India to make the process of reporting cases related to sexual harassment in the workplace easier and accessible to all. It was launched on August 29, 2024.
The abbreviation “SHe-Box” means Sexual Harassment Electronic Box. 9 What is the SHe-Box portal? SHe-Box Portal is an online platform where in women can file their sexual harassment at workplace complaints. 8 Kavita Chowdhury, Kolkata Rape, and Murder Case Highlights Unsafe Working Conditions for Doctors in India, THE DIPLOMAT, Aug 22nd, 2024, https://thediplomat. com/2024/08/kolkata-rape-and-murder-casehighlights-unsafe-working-conditions-for-doctors-in-india/
9 PIB Delhi press release, https://pib.gov.in/ , (last visited, 11th Dec, 2024)
Who can use it? This portal can be used by any woman from any sector like private, public, organized, or unorganized. How to report a complaint on the SHe-Box portal? Step 1: Visit website https://shebox. wcd. gov. in Step 2: On the homepage click on the ‘Register your complaint’ button. Then this would direct you to the page of the complaint registration page. Then click on register complaint and start with the process. Step 3: Fill the required details asked about the incident. Information like personal information, contact details, age, employment status, etc Step 4: Give details of the incident such as dates, timings, and locations. Step 5: Provide any supporting documents or evidence related to the complaint. Step 6: Once all the data is filled make sure that everything is properly mentioned and accuracy is maintained. Step 7: Once satisfied click on the “SUBMIT” button.
After the submission of your complaint, the government will look into the matter. Regular updates will be provided to the complainant regarding the progress of the case. The procedure of the case-solving: Once the complaint is submitted the government takes action to solve the issue in the following manner; the government will act in two ways either through IC or LCC. 10 The time prescribed for the inquiry is 90 days.
IC:
10 Maya Sreenivasan, Local Complaints Committee under the POSH Act, 2013, eLearn POSH.com, ( 12th Dec, 2024), https://elearnposh.com/
The POSH Act, 2013 mandates every organisation that has 10 or more employees to have an Internal Committee (IC). It is a committee that is formed to look into the matters of sexual harassment in the workplace.
LCC:
Under section 6 of the POSH Act, 2013 a local complaints committee (LCC) is to be formed. This committee is established by the district officer to address cases of sexual harassment in workplaces, particularly in unorganized sectors like housekeeping staff, situations where an organization lacks an Internal Committee (IC), or instances where the complaint is against the employer themselves. So, the government, through either IC or LCC, starts the investigation, the case is further resolved, and updates are given on the portal. Effectiveness and Efficiency of the SHe-Box Portal: The portal is found to be effective and efficient for many reasons, • It increased awareness regarding the issue of sexual harassment at the workplace. • many women who were hesitant to report the incident can now report through online platform wherein their identity is not public.
• Complainants can monitor the progress of their report. • Transparency is maintained • Bureaucratic hurdles are reduced due to the online nature of the reporting system. • The portal helps the government to collect data and find the gaps in the implementation process of the policy and also provides data to further policy formation related to sexual harassment at the workplace. Challenges in the Portal: There are a few challenges in the portal such as awareness among the women in the
unorganized sector. For example, an uneducated woman working as a labourer at a construction site has faced any form of sexual harassment at her workplace, so she would not be able to complain through the online portal nor she would go to the police station to lodge a complaint due to fear of society and fear of being judged. The digital divide is also a concern, not everyone has access to the internet so reporting might be an issue. Methods: This research paper focuses on qualitative methods, case studies, and analytical methods to understand the issue of sexual harassment in the workplace. By understanding the social, cultural, and economic factors affecting the victims it can be seen how attitudes, beliefs, and motivations of people have an effect on the cases related to sexual harassment in the workplace.
By analyzing case studies, it is understood how the judgments of the courts have an impact on the legislation and formulation of guidelines to ensure justice and security of women in workplaces. Suggestions: Based on the research findings and analyses of the SHe-Box portal and POSH Act,2013 few suggestions are proposed those are, • Extensive awareness campaigns should be carried out the ensure that every employee across all sectors is well aware of the SHe-Box portal and their rights as protection under the POSH Act. • The portal should be more user-friendly and there should be a feature for multilingual support, easier navigation, etc. • Training programs related to the use of the portal should be conducted in the organizations.
• There is a need to make laws more gender-neutral and take into consideration the issues of not just women but also the LGBTQ+ community or any gender for that matter. These were a few suggestions that could be incorporated into the working of the portal and POSH act which would further enhance the efficiency and effectiveness of the
project. Conclusion: The SHe-Box portal and POSH Act,2013 together have formed a strong framework to combat the issue of sexual harassment in the workplace. The POSH Act looks into the legal foundation and the portal caters to the need for accessibility. However, the effectiveness and efficiency of the portal can be judged only when there is proper implementation and awareness about the issue. This research underscores the initiative taken by the government of India to tackle the issue of sexual harassment in the workplace and get the desired outcome. By uniting these two tools a positive step towards addressing and solving the issue of workplace sexual harassment is taken, further creating a safer environment for everyone to work.