AUTHOR: Samhitaa Prakash, Symbiosis Law School , Pune
ABSTRACT
India's Prevention of Sexual Harassment (POSH) Act is an important legal framework developed to protect workers from the predatory behaviors that time and again exist within professional workplaces, especially at a time when workplace safety and equality are of the greatest importance. The POSH Act, which was passed into law in 2013, was elicited by the dire need to splinter the disturbingly prolonged taboo around sexual harassment in the workplace. The law, which has its inception in the Vishaka Guidelines, represents India's ongoing struggle to establish safer, more welcoming workplaces. The fray against workplace predators is still difficult, nonetheless, despite its existence. This article weighs up the rarity of India's Prevention of Sexual Harassment (POSH) Act, passed in 2013, as a legal framework for the Battle against workplace harassment and protecting women's rights. The article, titled Unmasking the Silence: India's POSH Act and the Battle Against Workplace Predators, digs into the Act's origins, the key Vishaka Guidelines that served as its core, and its role in tackling the persistent issue of sexual misconduct in professional settings. The paper critically studies the implementation issues that organizations come up against and focuses on major occurrences that have affected legal interpretation. Despite the advancement made, it demonstrates persistent gaps in assent, awareness, and reporting, focusing on the demand for stronger enforcement measures and cultural change to boost safer workplaces for all.
KEYWORDS
POSH , ICC , Vishaka , Workplace.
INTRODUCTION
The workplace culture of the organization is likely to become unpleasant and unsuitable for employment because sexual harassment is still a taboo topic in our society. Anytime someone is sexually insulted or humiliated by another, it is considered sexual harassment. A systematic type of aggression against people of either gender might be called sexual harassment in the workplace. Since gender equality is a priority in our nation, it is regrettable that such strange behaviours are common. Every woman is impacted by the practice of sexual harassment, regardless of whether she works in an industry with male co-workers, supervisors, or factory owners; in the service industry, where she may interact with senior staff, clients, and colleagues; in higher education, she may interact with male co-workers, faculty, or students; or she may engage in domestic work with male partners. However, the precise meaning of the word has not been established, it was laid out in the landmark decision of Vishakha v. the State of Rajasthan1 :-
“Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
physical contact and advances;
a demand or request for sexual favours;
sexually coloured remarks;
showing pornography;
any other unwelcome physical verbal or non-verbal conduct of sexual nature.”
There are no precise limits or standards for defining sexual harassment in terms of classification. Mackinnon's exposition in the book "Sexual Harassment of Working Women" makes it abundantly evident that there are several kinds of sexual harassment that take place in workplaces. She categorized sexual harassment as hostile work environment and quid pro quo harassment based on the US Supreme Court's ruling in Meritor Saving Bank v. Vinson.
Quid pro quo harassment is essentially sexual harassment that someone engages in in return for a job opportunity. This type of harassment includes wage hikes, transfers, and offers of promotions. Unwelcome sexual advances, requests for sexual favor, and other sexually explicit behaviour are frequently observed in hostile work situations.
DEVELOPMENT IN THE LAWS RELATING TO SEXUAL HARASSMENT AT WORKPLACE
Pre Vishaka-Guidelines Scenario
Sexual harassment was still a major issue in India in the early 1980s. Approximately 70% of women, according to civil society, have experienced sexual harassment at work. Prior to the introduction of "The Vishaka" guidelines, women were required to report instances of sexual harassment at work under Section 509 and Section 354 of the IPC. Since it violated the Fundamental Rights of Article 14 ,Articles 15 and 21 The Indian Constitution.
The Bhanwari Devi case had a significant influence on the development of women's safety regulations in India, resulting in the Vishaka guidelines. Working to raise awareness about issues including child marriage, dowries, education, and hygiene, Bhanwari Devi was a Dalit government official. She suffered reprisals for trying to break up a powerful person's child marriage. While strolling with her spouse, Bhanwari Devi was subjected to gang rape as retaliation. She filed a criminal case, but she was overlooked by the police, who took 52 hours to receive her report. Later, the Rajasthan High Court cleared the defendants, noting factors including the absence of gang rapes of women in front of their husbands and the absence of such acts by the village chief. The public and women's safety organizations rendered massive testament in reciprocation to this unjust ruling, pursuit for Bhanwari Devi’s justice.
The renowned Vishaka and Ors v. State of Rajasthan case, which entrenched the Vishaka rules for avoiding sexual harassment in the workplace, was at length the upshot of these rallies which met with repulse from the police
VISHAKA & ORS. VS. STATE OF RAJASTHAN
A group of non-profit organizations filed a Public Interest Litigation (PIL) in the Supreme Court of India in the notable case of Vishaka & Ors. vs. State of Rajasthan. Bhanwari Devi, a social worker, was gang-raped while doing her job, and her petition asked for justice. The NGOs asserted that her basic rights had been infringed upon and called on those responsible to be held bound by. Furthermore, though Bhanwari Devi's assault was directly affixed to her job, the PIL brought heed to the employer's turndown to presume accountability for her safety at work.
The Indian Constitution's essential rights were breached by sexual harassment in the workplace, according to the Supreme Court's ruling, which recognized this. These rights included:
Article 14 (The right to equality )
Article 15 ( Prohibits discrimination based on gender )
Article 19 (1) (g) (The freedom to engage in any occupation or practice any profession)
Article 21 ( The right to individual freedom and life)
POST VISHAKA SCENARIO
The Vishaka ruling sparks a national conversation about sexual harassment in the workplace. It raises a lot of interesting questions about sexual harassment. Following the Vishaka case, the Apparel Export Promotion Council v. A.K. The Chopra case was the first to come before the Supreme Court.
The Supreme Court affirmed the termination of a higher-ranking official of the Apparel Export Promotion Council, situated in Delhi, after the officer was discovered to have harassed a female subordinate in a sexual manner at work .
When the Supreme Court decided that physical contact was not necessary for an act to qualify as sexual harassment, the definition of the term was expanded.
"Sexual harassment is a type of sex discrimination projected by unwanted sexual advances, requests for sexual favors, and other physical or verbal actions with sexual overtones, whether directly or indirectly," the court concluded. The significance of this matter increases if the decision made by the female employee to accept or reject such behaviour could have a negative impact on her job, unjustly hinder her ability to execute her duties, and make her workplace frightening or unfriendly.
INTERNAL COMPLAINTS COMMITTEE (ICC)
The Internal Complaints Committee (ICC) is a committee that all employers must form inside their company. To handle the issue of sexual harassment, if the employer has branch offices, each branch office must have an ICC. Every business must establish an efficient ICC committee to avoid penalties for violating the ICC constitution.
Section 4 of the Sexual Harassment of Women at Workplace ( Prevention, Prohibition and Redressal) Act , 2013- Constitution of Internal Complaints Committee
Every workplace employer is required to establish an Internal Complaints Committee by means of a written order.
The members of the Internal Committees will be chosen by the Employer, and they will include: —
a) A female employee working at a senior level in the workplace will serve as the Presiding Officer.
b) a minimum of two members drawn from the workforce, preferably those with a strong commitment to the advancement of women, social work experience, or legal knowledge
c) one member drawn from non-governmental organizations or associations that support women's rights, or an individual knowledgeable about sexual harassment issues.
d)One member drawn from non-governmental organizations or associations that support women's rights, or an individual knowledgeable about sexual harassment issues.
The Internal Committee Members and the Presiding Officer shall serve for a term not to exceed three years from the date of their nomination, as determined by the employer.
The employer may prescribe fees or allowances for the Member chosen from among the non-governmental organizations or groups to hold the Internal Committee meetings.
ROLES OF INTERNAL COMPLAINT COMMITTEE
Once a policy violation is brought to the committee's attention, and at least once a year, the individual who has been accused of sexual harassment by the Aggrieved Woman Complaints Committee is required to meet with the committee.
The Aggrieved Woman Complaints Committee will convene whenever and whenever it receives information about a policy infringement.
An annual report detailing the quantity of cases filed and their compliance with the act's handling procedures is to be produced by the Internal Complaints Committee. The board receives this report.
The terms of employment for the "Presiding Officer and the members of the Internal Complaints Committee" are limited to three years starting from the nomination date.
LITERATURE REVIEW
Lakshminarayanan & Kosir, (2024) in their study examined secondary data on the frequency of gender-based violence and sexual harassment against women in Indian academia to better understand the contextual dynamics and dimensions of these issues in relation to the prevalence of overt and covert forms of discrimination, violence against women, and sexual harassment in academia. Despite multiple legal frameworks, constitutional safeguards, and official guidelines, the authors conclude that sexual harassment and violence against women continue to be prevalent among academic staff, professors, and students.
Gatrell et al., (2013) in the study examined that the problem of sexual harassment in the workplace is a worldwide one that impacts women in a variety of professions and businesses, not just those in one nation or area.
Lee et al. (2019) examined the connection between sexual harassment and organizational culture. According to the study, SH was positively correlated with an organizational culture that was predominantly masculine and minimally feminine. To lower the prevalence of SH, the authors recommended that organizations foster an inclusive and diverse culture. It has also been discovered that individual traits are connected to SH in addition to organizational elements.
METHODOLOGY
The research is based on primary as well as secondary data. Primary data is collected and collated through a survey. The 22 respondents who are aware of the POSH Act provided the data for this descriptive study. Health care, law, IT, transport, and sports were the main industries covered in the study. Secondary data was collected through various articles, journals, blogs as well as research papers.
FINDING AND ANALYSIS
GENDER
According to the survey, men make up most respondents (81.8%).
It is possible that fewer women participated in the study given that women made up only 18.2% of the respondents.
WHICH INDUSTRY OR SECTOR DOES YOUR ORGANIZATION BELONG TO?
With 50% of all firms examined belonging to the IT (information technology) sector, it is evident that this industry is dominant. This might reflect the IT industry's increasing prominence and power in the contemporary economy, highlighting the need for improved workforce management and industry-wide regulations, particularly those that address sexual harassment prevention and awareness ( POSH Act).
With 18.2% of the total, the healthcare industry is the second largest. When combined with the medical sector (9.1%), the disciplines relating to health make up 27.3% of all organizations. Since there is a great deal of interaction between staff and patients in these areas, harassment policies need to be very strict.
The third most represented individual sector is the legal industry, which makes up 13.6% of the organizations. Transport and Sports had a combined 4.5% share of the organizations, indicating a minor but significant presence in the sample.
ARE YOU AWARE OF THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION, AND REDRESSAL) ACT,2013 (POSH ACT)?
All 22 respondents said "Yes," suggesting that they are aware of the POSH Act, which is the most startling finding. This implies that the surveyed group had a very high level of awareness regarding this legislation.
4. DID YOUR ORGANIZATION PROVIDE YOU WITH TRAINING OR ORIENTATION ON THE POSH ACT ?
In response, almost two-thirds explained that the POSH Act was demonstrated by their organizations. This exhibits that organizations are very pledged to preventing sexual harassment and have abided by the requirement that workers receive this training.
Almost 25% of those surveyed said they had not undergone any POSH Act training or orientation. This lifts concerns since it puts forward a paucity of implementation and can mean that employees are not as well up on their rights and responsibilities.
A major percentage of respondents chose "Maybe," which shows that they were vague if they had received any training at all. This could specify the call for more efficient training techniques.
HOW EFFECTIVE DO YOU THINK THE POSH ACT IS IN PREVENTING WORKPLACE SEXUAL HARASSMENT?
Wide scales of responses, from a low of 2 to a high of 5, depict that many people have divergent opinions regarding how beneficial the Act is. The majority of replies fall in between three and five, stating that the majority people have a generally favorable opinion of the Act's virtue.
The most common rates seem to be 4 and 5, evading that many responders reflect that the Act is either extremely operative or quite operative. Ratings lower than three depict that some responders feel the Act is not as effective as it may be, underlining possible areas for development.
DO YOU FEEL THAT THE POSH ACT HAS CREATED A SAFER WORKING ENVIRONMENT ?
The POSH Act has, in fact, made workplaces safer, according to half of respondents who gave the "Yes" response. This indicates that a sizable percentage of workers have experienced a discernible improvement in workplace safety because of the Act.
More than a third of respondents selected "Maybe," expressing scepticism regarding the Act's capacity to make places safer. This might be the result of conflicting reports, a lack of solid proof, or difficulties linking the Act specifically to increases in safety.
A little but significant percentage of respondents said "No," indicating they do not think the Act has increased worker safety. It is critical to comprehend this group's viewpoint because it may point out shortcomings in the Act or its application.
HAVE YOU OR SOMEONE YOU KNOW FACED SEXUAL HARASSMENT AT WORK? IF YES, WAS THE POSH MECHANISM FOLLOWED EFFECTIVELY?
More than two thirds of those surveyed gave a "No" response. This could indicate that
they have not experienced sexual harassment at work, or
They have experienced harassment but the POSH procedure was not properly followed.
A high percentage can be encouraging if it means that harassment is not as common, but it might also mean that harassment is not being reported or that people do not trust the POSH system.
This group who answered yes feels the POSH method was done well, having either experienced sexual harassment themselves or know someone who has. Although the occurrence of harassment is alarming, it is encouraging that the mechanism was thought to be working in these instances.
This section who answered maybe is noteworthy because it shows confusion, which may result from
unclear encounters that could be considered harassment
ignorance of the POSH mechanism's operation.
DOES YOUR ORGANIZATION HAVE A WELL – FUNCTIONING INTERNAL COMPLAINTS COMMITTEE (ICC) ? DO YOU TRUST IT TO HANDLE CASES IMPARTIALLY?
Most responders (54.5%) believe that their organization has a free, well-run ICC that they can trust to handle cases reasonably.
The overwhelming affirmative reply suggests that many organizations have successfully set up ICCs that are believed to be well-grounded and functioning. This is called for duly handling problems at work.
Furthermore, a quarter (27.3%) suggest unreliability by selecting "Maybe."18.2% of responders fail to agree that their company has an ICC that is reliable and operates properly.
However, most responders have a positive point of view, almost half 45.5% when selecting the "Maybe" and "No" have demur or unfavorable impressions about their ICCs. This proves that many organizations have a large hope or deal of scope for improvement.
DISCUSSIONS
Significant hurdles have arisen recently while setting down the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) into implementation. While the legislation was outlined to protect women from workplace harassment, many hitches have come up that affect its actual implementation and interpretation by law enforcement.
A key problem is that organizations do not have ample awareness or training. Many employers fail to provide the required training sessions, which are necessary to make sure workers are aware of their rights and obligations under the Act. This lack of incomprehension frequently results in improper complaint handling and poor operation of Internal Complaints Committees (ICCs), a key component of the POSH Act grievance resolution mechanism.
Case underreporting is a second implementation issue. Women are often deterred from lodging complaints by fear of shame, career ruin, or reprisal. This hostility highlights a systemic disintegration in which the culture of the organization does not promote a firm and transparent reporting environment for harassment. Hence, a substantial deal of harassment at work goes undetected, which keeps victims alive. Furthermore, vague language in the Act has made legal interpretation more laborious. A notable illustration is the divergent views of judges relating to what is defined as a “hostile work environment” and “quid pro quo” harassment. Conflicting with s in the application of these terms carries on despite the intervention of courts to provide a clearer definition.
The disinclination of indubitable organizations to abide by the legislation has also been brought to attention by the occasion of inadequate implementation. Companies that failed to set up ICCs or handled complaints incorrectly have been reported.
Organizations that failed to successfully implement the Act have many times come under legal investigation which has resulted in more harsher penalties and enforcement procedures. These incidents have highlighted how important it is to promote an organizational culture that places a high value on employee safety and openness in addition to compliance. Overall, the POSH Act's implementation issues which range from organizational resistance and underreporting to legal ambiguities have impacted its efficacy, even if it is still a critical step in combating workplace harassment. Realizing the Act's full potential in protecting children requires strengthening judicial clarity, internal organizational processes, and awareness campaigns.
RECOMMENDATIONS
During the survey, a few recommendations or suggestions were given by the participants which were :
Stricter vigilance and enforcement
Active committee should be set up which exercises POSH sincerely.
Regular deliberations of the POSH committee. Increased accountability of the committee to the stakeholders of the institution.
Awareness sessions, appropriate workplace conduct and strict policy development.
Development of clear policy
The company is dedicated to ensuring an environment free from sexual harassment at work. To provide a secure, courteous, and welcoming workplace, all workers, contractors, and stakeholders are required to abide by this policy. A thorough framework for recognizing, reporting, and handling workplace sexual harassment is provided by this extensive policy. The severity of sexual harassment is emphasized, the reporting process is made more transparent, and accountability is ensured by clearly defined repercussions.
Encourage a secure workplace culture
To stop the problem of sexual harassment at work, women should be urged to report such instances. Instead of withholding information to protect the company's reputation, employers should foster a welcoming and safe work environment for women and encourage them to report incidents.
Regular meetings
It is recommended that employers hold a monthly meeting to discuss issues from their workforce. This will foster a positive working relationship between employers and employees, and women will feel more comfortable discussing issues with managers.
Awareness about the Act
Workshops aimed at raising awareness about sexual harassment legislation are crucial for preventing and addressing workplace wrongdoing. In addition to creating a culture where sexual misconduct is not accepted, they provide women the information and self-assurance they need to stand up for their rights. Employers meet their legal requirements under the POSH Act and, more significantly, help to foster an inclusive and respectful workplace where all workers can succeed by hosting frequent, in-depth courses.
Proper reporting procedure
The effectiveness of the POSH Act depends critically on having a well-organized, user-friendly complaint process. Organizations may create a culture where women feel empowered and comfortable enough to report harassment without fear of retaliation by making sure the procedure is practical, private, and encouraging. The way in which companies put these procedures into place and promote an environment at work where everyone is treated with respect and dignity will determine how effective the POSH Act is.
Zero tolerance policy should be implemented
An organization should pledge to establish a polite, safe environment where sexual harassment is never tolerated. The necessity of responding to any complaints right away by making sure that investigations are carried out right away, demonstrating that the problem is taken seriously and that every attempt will be made to address and resolve occurrences as soon as possible.
Provide proper support to victims
Organizations should give access to counselling services and enable time off if needed to support and assist staff members who have been the victims of sexual harassment. To heal and carry on working in a secure and encouraging atmosphere, this guarantees that impacted folks get the emotional and psychological care they require.
CONCLUSION
The Act's enactment in 2013 represents a major advancement in both the protection of women from sexual harassment and the provision of a venue for victims to seek remedy. In India, a woman is sexually harassed once every twelve minutes on average. The procedure for sentencing offenders for these kinds of offenses has been streamlined under the Act. Despite an increase in incidents reported, victims of sexual harassment are probably unwilling to come out for fear of what would happen to their personal and professional lives as well as their financial stability. It is essential to educate employers and employees on the different forms of sexual harassment that can occur in the workplace. In India, sexual harassment at work is a common occurrence. It is high time to acknowledge that women make up a portion of the working population as well. The government must guarantee that legislation passed is appropriately carried out. The likelihood of unfairness is reduced by the statutes' effective application. Gender discrimination should not exist, and organizations and the government should make sure that women are treated equally. Employers should devise new plans to combat this social ill.
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AIR 1999 SC 625
The Indian Penal Code , 1908
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
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