Every woman faces lot of challenges in her life and she has to overcome a lot struggle in a real world where she may sometime not be able to express her feelings apprehending social stigma, ostracism and time taking justice. Working in an office or any workplace is another challenge for every woman not because a women is not strong and competent but it only because few evil and unstable minded people who do not have sense of any respect for opposite gender attempt to harass a women sexually to appease their unworthy male chauvinism. India has signed and ratified the Convention on the “Elimination of all Forms of Discrimination against Women” (CEDAW) however the implementation of norms are still a big challenge. India previously did not have any specific law to address the issue of sexual harassment of women at the place of work and the Indian Penal Code (IPC) just covered the outraging the modesty of women in S.354 but It did not cover situations which could create a hostile or difficult working environment for women at the work place. In 1997 in case of Vishaka and ors. Vs. State of Rajasthan 1 [Citation: 1997 (6) SSC 241], the Supreme Court drew upon the norms of CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the work place, the case of Vishaka and ors. Vs. State of Rajasthan was filed for enforcement of fundamental rights of working women under Article 14, 19 and 21 of Constitution of India, in the said case a social worker working in village of Rajasthan was brutally gang raped. That incident brought notice to the Hon’ble Court, the hazards to which a working women gets victimised to sexual harassment and the urgency for safeguards by an alternative mechanism, therefore the following guidelines and norms were prescribed by Hon’ble Supreme Court:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
Sexual Harassment definition shall also include following:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually coloured remarks;
(d) showing pornography
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. They should take the following steps :
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee women should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
The complaint mechanism, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor of other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report of the Government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action
The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector
These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993
Despite such guidelines laid by the Hon’ble Supreme Court on 13.08.1997, the Central Government was not quick in bringing a law which gave a safe working environment to woman at a workplace. It was only in December 07, 2010 the legislators introduced an Act which was passed finally on March 11, 2013, namely Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 2 (POSH Act) to provide protection of women against sexual harassment at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected to it. The POSH Act provides every woman, irrespective of her age or employment status, a safe and secure environment, free from sexual harassment. It is envisaged as a comprehensive legislation which covers every workplace, whether in the organized or unorganized sector and lays down a complaints and redressal mechanism.
Few brief points to be noted by Employers:
(1) POSH Act applies to all the employers who by meaning includes any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, branch or unit, any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service
(2)Every employer having 10 or more number of employees at their a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee” (ICC) and provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
(3) The Internal Complaints Committee shall consist of the 4 member panel consisting of following members to be nominated by the employer, namely:—
(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees,
(b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge,
(c) one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment – Provided that at least one-half of the total Members so nominated shall be women,
(4) Employer shall always display at any conspicuous place in the workplace, the order constituting the Internal Committee and the penal consequences of sexual harassments;
(5) Organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the POSH Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed
(6) The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer
(7) The Member appointed from among the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed by law.
(8)The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry and at the request of the aggrieved woman (complainant) take steps to settle the matter between her and the respondent through conciliation :- Provided that no monetary settlement shall be made as a basis of conciliation.
(9) Where a settlement has been arrived, the Internal Complaints Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation
(10) The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded to the aggrieved woman and the respondent (accused)
(11) Where a settlement is arrived between complainant and respondent, no further inquiry shall be conducted by the Internal Committee or the Local Committee
(12) Where the respondent is an employee, Internal Complaint Committee or the Local Committee, as the case may be, shall proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the Indian Penal Code where applicable
(13) For the purpose of making an inquiry, the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
(14) In case where complainant and respondent both are employees then the inquiry shall be completed within a period of ninety days
(15) During the pendency of an inquiry, on a written request made by the aggrieved woman to ICC, the employer shall be bound to accept the recommendation given by the Internal Complaints Committee or the Local Committee, as the case may be, the following recommendation —
(a) transfer the aggrieved woman or the respondent to any other workplace; or
(b) grant leave to the aggrieved woman upto a period of three months; or
(c) grant such other relief to the aggrieved woman as may be prescribed by law
(16) Provide all necessary facilities and informations to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry
(17) Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be
(18) Provide all such assistance to the woman if she so chooses to file a complaint in relation to the offence, against an employee or any third party, under the Indian Penal Code or any other law for the time being in force
(19) Treat sexual harassment as a gross misconduct under the service rules and initiate action for such misconduct
(20) The employer shall include in its report the number of cases filed, if any, and their disposal under the POSH Act in the annual report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer. It may also be noted that pursuant to the POSH Act, the Ministry of Corporate Affairs notified Companies (Accounts) Amendment Rules, 2018 (“Companies Rules”), issued under S.134 of Companies Act, 2013, for ensuring safety of women at workplace a mandatory disclosure w.e.f. 31/07/2018 is required to be made in board’s report of every company “A statement that the Company has complied with provisions relating to the constitution of Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”
(21) Where the employer fails to constitute an Internal Committee or fails/refrains to take action / cooperate with any action as mentioned above or contravenes or attempts to contravene or abets contravention of other provisions of POSH Act or any rules made thereunder, he shall be punishable with fine which may extend to fifty thousand rupees. If any employer, after having been previously convicted of an offence punishable under POSH Act subsequently commits and is convicted of the same offence, he shall be liable to—(i) twice the punishment, which might have been imposed on a first conviction (ii)cancellation, of licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.
Key points to be noted by women employees:
(1) An employee includes a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name
(2) A woman employee of any age subjected to any act of sexual harassment (as defined above) at a workplace of the employer shall be termed as aggrieved woman and she shall be able to approach the Internal Complaints Committee or Local Complaints Committee, as the case may be
(3) In case if a woman has faced any sexual harassment at any unorganised sector (where the number of employees/workers is less than ten) or she has any complaint against the employer himself then in such case a woman can approach to District Officer (As appointed by State Government a District Officer would be District Magistrate or Additional District Magistrate or the Collector or Deputy Collector) or can approach Nodal Officer as appointed by the District Officer, the complaints filed before the Nodal Officer shall be forwarded to Local Complaints Committee as appointed by the District Officer
(4) Over and above the nature of harassment as described above the following circumstances shall also amount to sexual harassment:—(i) implied or explicit promise of preferential treatment in her employment (ii) implied or explicit threat of detrimental treatment in her employment (iii) implied or explicit threat about her present or future employment status (iv) interferes with her work or creating an intimidating or offensive or hostile work environment for her (v) humiliating treatment likely to affect her health or safety
(5) An aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee, or the Local Committee, as case may be, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident, the period can be extended to another three months if Internal Complaints Committee or Local Complaints Committee is satisfied that there were circumstances which prevented aggrieved woman from filing a complaint within three months
(6) In case if an aggrieved woman cannot make a complaint in writing, then she shall get reasonable assistance from the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be
(7) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir can make a complaint
(8) In case of any settlement arrived during the course of proceeding, the aggrieved woman is entitled to get a free copy of the settlement as recorded by Internal Complaints Committee or Local Complaints Committee, as the case may be
(9) In case, if an aggrieved woman is suffering through any mental disturbance or uncomfortness she may seek a transfer of herself or of the respondent (accused) to any other workplace, she will also be entitled to get leave upto a period of three months. The leave granted to the aggrieved woman under the provision of POSH Act shall be in addition to the leave she would be otherwise be entitled to under the service rules
(10) Where the Internal Complaints Committee or the Local Complaints Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter
(11) Where the Internal Complaints Committee or the Local Complaints Committee, as the case may be, arrives at the conclusion that the allegation against the respondent (accused) has been proved it shall recommend to the employer or the District Officer to deduct from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs against the mental trauma, pain, suffering and emotional distress, the loss in the career opportunity due to the incident of sexual harassment
(12) The identity and addresses of the aggrieved woman, submissions of her complaint, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee shall have to be kept as utmost confidential and such details cannot not be shared with any third party and the action taken by the employer or the District Officer shall not be published, communicated or made known to the public, press and media in any manner:
(13) In case where there is non-implementation of any recommendations given by the Internal Complaints Committee then the aggrieved woman can prefer an appeal within 90 days to the appellate authority as defined under Industrial Employment (Standing Order) Act, 1946.
(14) It is also to be noted that over above the remedy under the POSH Act, by way of The Criminal Law (Amendment) Act, 2013 legislators have deemed it fit to include few growing as given below in The Indian Penal Code, 1860 and set out punishments for the same
(a) Any person committing offences such as physical contact and advances involving unwelcome and explicit sexual overtures, a demand or request for sexual favours, showing pornography against the will of a woman, making sexually coloured remarks shall be held guilty of the offence of sexual harassment and shall be punished with rigorous imprisonment for a term which may extend to 3 years, or with fine, or with both,
(b) Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine,
(c) Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine,
(d) Any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman or monitors the use by a woman of the internet, email or any other form of electronic communication or watches/spies on a woman in any manner which results in a fear of violence or serious alarm or distress in the mind of such woman, or interferes with the mental peace of the woman; the such man shall be held guilty of committing an offence of stalking. Person held guilty of stalking shall be punished with an imprisonment for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
(15) An aggrieved woman can avail both remedy simultaneously under POSH Act as well as Indian Penal Code, depending upon the seriousness and gravity of the offence committed by the perpetrator
Conclusion: Though POSH Act has come in force in year 2013, it has come to our observation that many employers are not aware about the same and have not constituted Internal Complaints Committee. Providing a safe and healthy working environment for a woman is utmost important for any organisation so as to create a balanced and right opportunity for growth of woman in an organisation. We wish no woman may ever require this Act for her redressal and rather with proper prohibition and prevention by employers she gets a safe and healthy working environment at every workplace.