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An explanation of POSH Act, the law against sexual harassment

Recently, the honourable High Court of Kerala asked the organisations associated with the film industry to take steps to constitute a joint committee to tackle all the cases alleging acts of sexual harassment at workplace in consonance with the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or popularly called as POSH Act passed by the Parliament in 2013. Few years back the metoo movement encourage people to level allegations against the acts of sexual harassment which included prominent names from the film industry such as standup comics, actors, producers, directors, musicians, journalists etc. 

Background of POSH Act 

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was passed in the year of 2013 defining the meaning and scope of the act of ‘sexual harassment’, lays down the procedure of filing of complaints and making of enquiries and the consequent actions to be taken on such complaints. This POSH Act broadened the scope of Vishakha guidelines which were already in place before coming of this Act.

The Vishakha guidelines were laid in a Supreme Court judgement in 1997. A case was filed by women’s rights groups, one of which was Vishakha. These groups had filed a Public Interest Litigation (PIL) over the alleged gangrape of a social worker belonging from Rajasthan. This said social worker had tried to prevent a child marriage of a one-year-old girl which resulted in the alleged gangrape of that social worker as a revenge of such Act.    

Vishakha Guidelines and the POSH Act

The Vishakha guidelines laid down by the honourable Supreme Court were made legally binding for the institutions. They defined the act of sexual harassment and also imposed three key obligations of prohibition, prevention and redressal of such acts by the institutions. The Supreme Court also directed such institutions to set up a Complaints Committee to look into the matters of sexual harassment against women at workplace.

The POSH Act further broadened the scope of Vishakha guidelines and legalised it into form of an Act passed by the Parliament of India.

The POSH Act mandates that every eligible employer needs to establish an Internal Complaints Committee (ICC) at each of its branch or office having 10 employees or more. The Act has laid down various aspects of sexual harassment at workplace and the procedure that needs to be followed once such complaints have been made. The Act has defined the meaning of ‘aggrieved victim’ who could be a women of any age whether employed or not and such woman alleges to have been subjected to any act of sexual harassment.

The POSH Act gives rights and protection to all the women either working or visiting any place of work in any capacity.  

Definition of term ‘sexual harassment’  

The POSH Act defines an act of sexual harassment which includes ‘any one or more’ of the following ‘unwelcome acts or behaviour’ which are committed either directly or by implication against a woman:

• Physical advances and contacts
• Demands or requests of sexual favours
• To show pornography
• Passing of sexually coloured remarks
• Any other unwelcome physical, non-verbal or verbal conduct of sexual nature 

The POSH Act also provides for five other acts which constitute the act of sexual harassment. These acts include:

• Offering implicitly or explicitly the promise of preferential treatment in her employment
• Threatening implicitly or explicitly for detrimental treatment
• Threatening implicitly or explicitly about the lady’s future employment prospects
• Constant interference in her work or creating a hostile and offensive work environment
• Humiliating her which affects her health and safety

From the above definition, it can be seen that the definition of the act of sexual harassment is very broad and little on the side of being too vague. In response to end the confusion related to the scope of acts of sexual harassment, the Ministry of Women and Child Development^[1] has published a handbook on Sexual Harassment of Women at Workplace giving detailed insights and examples of behaviours which come within the ambit of sexual harassment at workplace. Following are some of the behaviours suggested by the Ministry:

• Sexually suggestive innuendoes or remarks; repeated or serious offensive remarks; inappropriate remarks or questions about a person’s sex life
• Acts of blackmailing, intimidation, threats for and around sexual favours and also acts of threatening, intimidation or retaliation against an employee who speaks up about such acts
• Displaying sexist or offensive MMS, SMS, posters, pictures, emails or Whatsapp
• Unwelcome acts of sexual advances
• Unwelcome acts which include social invitations with sexual overtones that is commonly seen as flirting

The handbook explains the scope of the term ‘unwelcome acts’ or ‘unwelcome behaviour’ as one where the victim experiences bad or powerless, causes sadness/ anger or negative self-esteem. To sum up, the term ‘unwelcome behaviour’ means those acts which are invading, demeaning, power based and one-sided and illegal.

Procedure of filing of complaint under POSH Act

Filing of Complaint

The POSH Act does not make it mandatory for an aggrieved victim to file a complaint against the culprit with the ICC to act. The Act uses the term ‘may’ which means that the victim may file a complaint with the ICC and in case she cannot, then the members of the ICC shall render all the reasonable assistance to her to complain in writing. In case the aggrieved woman cannot complain in writing due to physical or mental incapacity or death or otherwise, then a legal heir of that victim can file a complaint on her behalf.

Timeline for filing of Complaint

According to the scheme of the POSH Act, the time limit within which a complaint of sexual harassment can be filed is three months from the date of incident. However, the ICC can accept the complaint if it is satisfied that certain circumstances existed which prevented the aggrieved woman from filing of complaint within the said period.

Option of Conciliation  

The ICC “may” before the beginning of enquiry and at the request of the aggrieved woman, take steps to settle the matter through conciliation between her and the person alleged to have committed the act of sexual harassment on the condition that no monetary settlement shall be made as a basis of conciliation.

Initiation of Enquiry

The ICC has two options once a complaint has been filed with it. ICC has the option either forwarding the victim’s complaint to the police or it can itself initiate an enquiry which has to be completed within a period of 90 days. It must be noted that ICC has the powers similar to that of a civil court in respect of examining and summoning any person on oath and also on requiring the discovery and production of documents.

Submission of Report

Once the enquiry is completed, the ICC has to submit a report of its findings to the employer within a period of 10 days. The ICC also makes the report available to both the parties.

Confidentiality of proceedings

The Act states that the identity of the aggrieved woman, witnesses, respondent, any other information on the enquiry, recommendations from the ICC and the consequent actions taken by the ICC should not be made public.     

Proceedings after the ICC report 

Recommendations to the employer

In case the ICC finds that the allegations of sexual harassment made by aggrieved woman to be true, then ICC must recommend to the employer to take action in accordance with the service rules of the company. These rules can vary from company to company. The ICC can recommend in the report to deduct the salary of the respondent upto an extent the company finds appropriate.    

Granting of compensation to the victim

Compensation can also be given to the aggrieved woman against the act of sexual harassment. Compensation can be determined based on five aspects: loss in the career opportunity, emotional distress and suffering caused to the woman, income and financial status of the respondent, woman’s medical expenses and feasibility of such payment.

Right of Appeal

In case any of the respondent or the aggrieved woman is not satisfied with the recommendations, then both have the right to file an appeal within a period of 90 days from the date recommendations are made by the ICC.

Dealing with false complaints

With the coming into force of POSH Act, there have been apprehensions in the minds of the other gender as to what would happen or what remedy they can take recourse to if a false case of sexual harassment is levelled against them.A woman can file a false complaint for several reasons and weaponise theAct against the respondent for reasons such as personal vices, professional rivalries, failure of personal relationships etc.

In order to ensure that the vision and objective behind bringing this Act is not diluted and the provisions of this Act are not misused at the hands of disgruntled women, the POSH Act has made provisions to deal with false and malicious complaints.

Section 14 of the POSH Act provides for punishment in cases where false and malicious cases have been filed against with false evidence. In such cases ICC can recommend to the employer of the organisation to take action against the complainant woman or the person who has made the complaint according to the provisions of the organisation’s service rules. However, it must be made clear that such action cannot be taken for mere inability to substantiate the complaint or provide adequate proof of that.  

Concerns against POSH Act

POSH Act has brought both relief to the women and concerns for other genders working in an organisation. Some of the concerns that people find important are as follows:

POSH Act is highly women centric: The Act only provides protection to the female gender only and does not provide any such protection to other genders despite the fact the other genders too facing the same issues at workplace.

Loosely defined concept of ‘sexual harassment’: The definition of sexual harassment has been framed very loosely and this gives an option to the women to level allegations of sexual harassment for farfetched acts.

 Discourage women employment: Employers are concerned and there is a possibility that they may discourage appointing women in their organisations due to the possible risk of attracting such charges. This can severely curtail the employability of women which is definitely not the goal of introducing this concept. 

Conclusion

The POSH Act was definitely the need of the hour when it was passed. However, the scope of the Act is limited to protection from acts of sexual harassment against women only and does not include such acts against men. Further, the definition of sexual harassment has been framed very loosely to encompass almost any out of the line act to be labelled as sexual harassment. This has made the other genders very apprehensive and they fear that any untoward act may result in allegations of sexual harassment. Therefore, it is the need of the hour that the organisations go beyond the scope of the Act and frame gender neutral policies for not just proper implementation of the Act but also for a cohesive and safe working environment.