The Supreme Court Bench of India stated there is “uncertainty” over the execution of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (PoSH), which went into effect ten years ago. After issuing a number of directives to ensure the PoSH Act’s effective implementation, the Supreme Court (SC) recently stated in a court judgement that “it is disquieting to note that there are serious lapses in the enforcement” of it. The court emphasised how “being a victim of such a deplorable act not only dents the self-esteem of a woman, but it also takes a toll on her emotional, mental, and physical health.” A significant portion of them “reluctantly report such misconduct” and even “drop out of their job.” The court stated, “If the authorities, managements, and employers cannot ensure (women) a safe and secure workplace, they will fear leaving their homes to earn a living in a dignified manner and fully utilise their talent and skills.”

Interestingly, according to a May 4 study by The Indian Express, just half of the national sports federations have sexual harassment panels. According to the newspaper, five federations, including wrestling, lack an internal complaints committee (ICC), four lack the required number of members, another six lack the required external member, and one federation has two panels but none with an independent member. “This is indeed a sorry state of affairs and reflects poorly on all the state functionaries, public authorities, private undertakings, organisations, and institutions that are duty bound to implement the PoSH Act in letter and spirit,” wrote Hima Justice Kohli in reference to the report.

The Supreme Court has ordered the Federal Government, the States, and the Union Territories “to undertake a time-bound exercise” to determine whether all Ministries, Departments, Governmental Agencies, Institutions, and Bodies have internal committees that “strictly” adhere to the PoSH Act. The court ordered “a similar exercise be undertaken by all statutory professional bodies at the apex level and the state level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, educational institutions, and by government and private hospitals/nursing homes.” In addition, the court has ordered the authorities to take “immediate and effective steps” to “familiarise” committee members with their “duties and the proper conduct of an inquiry.”

In spite of this, as more than 80% of women workers in India are working in the unorganised sector, the legislation is mainly unavailable to them. Experts have also pointed out that sexual harassment cases in a professional setting are significantly underreported in India for a number of reasons, including:

• The ineffective operation and ambiguity in the law regarding how to carry out such inquiries

• The lack of knowledge among female employees about these committees and who to contact in the event of harassment.

• Other barriers to women registering complaints include organisational power relations and worry about career consequences.

• A lack of understanding for female professionals or students in educational institutions

Although there is frequently little tangible proof in sexual harassment cases, this does not mean that a crime has not been committed.

The POSH Act: How Was It Created?

Bhanwari Devi, a social worker with the Rajasthani government’s Women’s Development Project, was gang-raped in 1992 by five men when she attempted to stop the marriage of a one-year-old girl. The Supreme Court established a set of guidelines in 1997, known as the Vishakha Guidelines, to fill the statutory gap until a law could be enacted while it was considering activist groups’ petitions against the crime. The Supreme Court noted the lack of any law “enacted to provide for effective enforcement of the basic human right of gender equality” guarantee against “sexual harassment at workplaces” while hearing the petitions. These were to be “strictly observed in all workplaces,” according to attorney Janki Gupta, and were legally obligatory and enforceable. No educational institutions or athletic organisations were stated in black and white at the time, or even today.

The General Recommendations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993, were one of the international conventions and standards that the court drew from. It also drew strength from other provisions of the Constitution, such as Article 15 (against discrimination on the basis of only religion, race, caste, sex, and place of birth). In the meantime, in 2000, 2003, 2004, 2006, and 2010, the National Commission for Women produced draughts of a code of conduct for the workplace. Krishna Tirath, the then-minister for women’s and children’s development, then introduced the Protection of Women Against Sexual Harassment at Workplace Bill in 2007. Later, it was introduced in Parliament and underwent revisions. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, or POSH Act, was the name given to the modified Bill when it went into effect on December 9, 2013.

What Conditions Are Placed on Employers?

Any firm or organisation with more than 10 employees is required by law to create an ICC, which any female employee may contact in order to report sexual harassment in writing, according to Gupta.

• A woman must be in charge of the ICC.

· Employ at least two women and one more person.

• Incorporate a third party, such as an NGO employee with five years of experience who is familiar with the difficulties of sexual harassment, to prevent any unwarranted pressure from senior levels.

• The Act also requires the establishment of local committees (LCs) in each district of the nation to hear complaints from women employed by informal businesses with less than 10 employees as well as domestic workers, home-based business owners, volunteer government social workers, and others.

The POSH Act and the “principles of natural justice” outlined in the Act’s Rules must be followed by these two organisations when conducting inquiries, according to the law. The employer is required to submit an annual audit report to the district officer detailing the number of sexual harassment complaints received during the year and any subsequent actions. Additionally, it obligates the employer to hold routine workshops and awareness campaigns to inform staff members of the Act as well as to host orientation and training sessions for ICC members, according to Gupta. A fine of up to 50,000, which rises for a repeat infraction, is imposed on the employer if they fail to form an ICC or comply with any other rule.

What Does The POSH Act Define As Sexual Harassment?

A ‘Handbook on Sexual Harassment of Women at Workplace’ published by the Ministry of Women & Child Development contains detailed instances of behaviour that constitute sexual harassment at the workplace. The Handbook says “unwelcome behaviour” is experienced when the victim feels bad or powerless, and when it causes anger/ sadness or negative self-esteem. Unwelcome behaviour is “illegal, demeaning, invading, one-sided and power-based”. Under the 2013 law, sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:

• 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.

• Sexually suggestive remarks or innuendo; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life;

• Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails;

• Intimidation, threats, and blackmail around sexual favours;

• Threats, intimidation or retaliation against an employee who speaks up about these;

• Unwelcome social invitations with sexual overtones, commonly seen as flirting; and

• Unwelcome sexual advances.

In addition, the PoSH Act mentions five circumstances that amount to sexual harassment:

1. Implied or explicit promise of preferential treatment in her employment;

2. Implied or explicit threat of detrimental treatment;

3. Implied or explicit threat about the complainant’s present or future employment status;

4. Interference with the complainant’s work or creating an offensive or hostile work environment;

5. Humiliating treatment of the complainant that is likely to affect her health or safety.

What Is The Procedure For Complaint Under The Act?

The aggrieved victim doesn’t need to file a complaint for the ICC to act. The Act says that she “may” do so — and if she cannot, any member of the ICC “shall” render “all reasonable assistance” to her to complain in writing.

• If the woman cannot complain because of “physical or mental incapacity or death or otherwise”, her legal heir may do so.

• Under the Act, the complaint must be made “within three months from the date of the incident”. However, the ICC can “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”.

• The ICC “may”, before the inquiry, and “at the request of the aggrieved woman, 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”.

• The ICC may either forward the victim’s complaint to the police, or it can start an inquiry that has to be completed within 90 days. The ICC has powers similar to those of a civil court regarding summoning and examining any person on oath and requiring the discovery and production of documents.

• When the inquiry is completed, the ICC must provide a report of its findings to the employer within 10 days. The information must also be made available to both parties.

• The identity of the woman, respondent, witness, and any information on the inquiry, recommendation and action taken, should not be made public.

What Can One Expect After The ICC Has Filed Its Report?

If the allegations of sexual harassment are proven, the ICC will recommend to the employer to act “in accordance with the provisions of the service rules” of the company. These may vary from company to company.

• The ICC may recommend that the company deduct the salary of the person found guilty, “as it may consider appropriate”. The compensation is determined based on five aspects: suffering and emotional distress caused to the woman; loss of career opportunity; her medical expenses; income and financial status of the respondent; and the feasibility of such payment.

• If either the aggrieved woman or the respondent is not satisfied, they may appeal in court within 90 days.

A False Complaint Of Sexual Harassment?

Section 14 of the Act deals with punishment for false or malicious complaints and false evidence. In such a case, the ICC “may recommend” to the employer that it take action against the person who has made the complaint, in “accordance with the provisions of the service rules”. The Act, however, makes it clear that action cannot be taken for “mere inability” to “substantiate the complaint or provide adequate proof”. Gupta points out that, “In multiple judicial interventions, the courts have been seen to be unwilling in addressing this inherent tension and ended up giving more reliance on evidence. Women have even been penalised and lost their employment. It is a known fact that women are disproportionately affected in patriarchal systems.”