INSIGHT ON POSH ACT, 2013: ANKIT TIWARI

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Author: Ankit Tiwari

LL.M. Symbiosis Law School, Pune (2019-20)

ISSN: 2582-3655    

Insight on POSH ACT, 2013

Abstract

With authority comes the power to abuse authority. The relevance of such abuse of authority is most commonly seen in workplace harassment of women. There is a number of women who are the subject matter of sexual harassment at some instance in their life, maybe in the workplace or on her way back home.  They’re compelled to keep quite as if they fight against it they are subject to worse crimes like assault, rape, acid attack, etc. This it’s the state responsibility to protect the dignity of women at the workplace.  In 2013, Parliament came up with the Prevention of Sexual Harassment Act for women in order to protect, prevent and redress the issue of sexual harassment at the workplace.  But with societal development, the crime of sexual harassment has also expanded. In the present time, the crime of sexual harassment has affected other genders too. Additionally, the wrong doer has found ways to escape the liability. This research is focused on examining the development, essence, applicability, and limitation of POSH, Act, 2013.

  1. Title

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was enacted as comprehensive legislation to provide a safe, secure and enabling environment, free from sexual harassment to every woman. This Act covers all types of sexual misconduct that women can face in her workplace and provide a mechanism for redressal. 

However, the sexual harassment issues at the workplace not only affect women but had become a crucial problem for another gender too which POSH Act does do not cover in its ambit. The research aims to address sexual harassment issues at the workplace which men and transgender faces. Also to Analysis University Grant Commission Guidelines which provides a legal mechanism for sexual harassment at workplace gender neutrally.    

  1. Over view

The ‘ right to work ‘ is the most fundamental component of living. To have the basic needs of food, water, clothing and shelter and something more than simply the basic needs of life one must work to earn.[1] The right to work includes the Right to have a safe and friendly workplace condition. The workplace should be like a place where an individual can excel in her involvement in work without any tread to her human dignity and life. Employers and the nation-state must provide a workplace free from fraud, harassment, and other such crime. 

To ensure best practices at the workplace, Parliament came up with the POSH Act, 2013 which provide legal structure with remedies for preventing sexual harassment problem. The Act recognizes that sexual harassment constitutes a violation of fundamental rights of women and their right to life and to live with dignity and carry on any profession, trade, or business in an environment free from sexual harassment.

POSH Law affects all of India and is not gender-neutral — it only protects women. In society, it is generally understood that women are only one who faces sexual harassment issues. But this is not true in recent times at workplaces; males sometimes are mentally tortured for the sake of their job. If a male needs a job and he is not having any other substitute then he although unwilling to accept sexual advances, from females or male colleagues. These kinds of brutal incidents not only physically ruin the body of the victim but also destroy his soul.

The People’s Union of Civil Liberties had this to say about Tihar way back in 1981: “When a young boy enters, the prisoners have been known to have bid a price for the boy. The price offered is in terms of ‘bidis’, soap or charas. Often prisoners have been divided into camps and the groups have fought each other on the issue of who shall have the new entrant”[2]. B.N. Ray vsRamjas College &Org,[3]is a leading precedent that illustrates the need for having gender-neutral sexual harassment laws in India.

The need for such enlargement has been realized by various companies by adopting POSH Act, 2013 in gender-neutral form. This University Grant Commission also took initiative by coming up with the POSH guidelines in gender-neutral terms. The Guidelines had been implemented by various state commissions such as Maharashtra and other states are looking forward to introducing it.

This research addresses the sexual harassment issues at the workplace which other gender faces also critically analyze the potential of University Grant Commission Guidelines in enlarging the scope of Gender Neutral POSH Act, 2013.

  1. Review of Literature

AlokBhasin[4] in his book provides a well-researched work on the meaning and scope of sexual harassment at the workplace. The author explains the concerns relating to combat the same by placing more responsibility on the employers to keep a check on the functioning of the organization and discusses the remedies which could be available to the victim. 

Ritu Gupta[5], in her book has made a comprehensive and updated work on this sensitive issue. The author has dedicated specific chapters in defining the concept and extent of its importance received by its nationality as well as internationally. The author further illustrates the view by analyzing important judgments and recent cases, along with the policy formulation issues. The author also illustrates the relevant updated provision of the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 (as amended by the criminal law amendment act, 2013), and service rules. The POSH Act, 2013, has been analyzed by the author minutely and every section has been examined critically explaining their full import and highlighting their intricacies. However, in the entire analysis, it could be observed that the author has used simple, easy and lucid language that binds the reader and helps them to go through the content quickly. The balanced and straight forward approach towards every possible related topic makes it a user-friendly guide. It is useful to both the lawman and the layman equally who wishes to have an insight into much talked about problem.

Philip W. Cook’sbook drew attention towards the issue regarding violence and harassment against men by emphasizing on the statistics and facts. In his book, he highlights the fact that how society presumes men as perpetrators and women as victims. It shows how prevailing gender roles that are traditional and patriarchal by nature affect both, women as well as men. In his book, he emphasizes how are men being abused in society, and the future, that how they do not get any recognition regarding the same. The book also talks about organizations like the National Coalition for Free Men, which protects the rights of men and works for their betterment in society.

JordiEscartín, Denise Salin, and Álvaro Rodríguez-Carballeira[6]through their empirical research explain how workplace bullying is a gender-neutral problem. These studies seem to indicate a higher tendency among women to label negative acts as bullying. For which women more likely to think of emotional abuse and to rate relational forms of aggression as more severe than men did.

Kaviya Singh[7]in her research paper highlights different provisions that are gender-specific. Papers explain the various definition of Indian Penal Code such as Section 377: Unnatural offenses; section 302:  Punishment for murder; Section 309. Attempt to commit suicide; Section 497: Adultery which only covers women under their ambiguity. Paper also highlights legislation like The Immoral Traffic (Prevention) Act, 1956 and Prevention of Sexual Harassment of Women at the workplace as gender-specific.

AvratiSrivastava[8]is her research paper explains the nature of the Indian Penal Code as women-centered? Paper came forward with a different solution through which gender neutrality in society, as well as the legal system, can be achieved.

Gibran Naushad and SusanahNaushad[9]in their research, have interpreted and analyzed POSH Act,2013. Data related implementation of the act is studied which reflects the reason for the failure of the act. Authors consider legal complexity and functional mechanism as major challenges which the POSH Act faces.

Even men aren’t safe from sexual harassment at workplace: Survey- economictimes.com- 22 August 2010.[10]This the article is based on a survey which was conducted by ET-Synovate in seven cities of India. In a survey, it was found that a substantial 38% of the respondents agreed that in today’s workplaces, even men are as vulnerable to sexual harassment as women. On which Many of the corporates and PSUs ET spoke to agree to this new trend and point out that many male employees do not come out in the open and file complaints because they feel that no one will believe to them, considering social construction. They usually seek a transfer to get out of the situation or find a new job.

Harnessing the Power of Gender Neutrality in the Workplace- mondaq.com- 15 January 2020[11]. This article covers the holistic understanding of POSH Act, 2013 where offense and redressal mechanism is elaborated. It covers aspects that can result in sexual harassment at the workplace against all genders and through this address the need for Gender Neutral Workplace Laws for the prevention of Sexual Harassment.

With men being as vulnerable to sexual harassment as women, why is our law not gender-neutral? – thebetterindia.com- 19 May 2017[12].In this article social mindset in contextualizing sexual harassment as gender-specific is put forward. The articles build up the relationship between law and social psychology where sexual harassment against men is a joke but when it is against women it becomes the offense. The need for a paradigm shift in dealing with sexual harassment as gender-neutral is raised.

Male Rape: Making the System Neutral- indialegallive.com- 13 July 2019[13]. In this article author analysis the Law Commission, 172nd Report of 2000, which recommended the gender-neutral definition of rape by replacing the term “rape” in the IPC with the words “sexual assault”?  The center accepted the proposal to make the definition of rape gender-neutral after December 16, 2012, gangrape of Nirbhaya. The Justice Verma Committee, set up after the horrific incident, recommended the use of the word “person” in place of “woman” to cover all victims of sexual violence. But The Criminal Law (Amendment) Act, 2013 unfortunately restored the gender-specific definition of sexual violence for both the perpetrator and the victim.

UGC ruling: Male students can now file sexual harassment complaints- indiatoday.in- 8 June 2016[14]. This article deals with the University Grant Commission Recommendation where the applicability of the POSH Act, 2013 is extended to male and transgender. The recommendation also makes in the composition of the internal complaint committee composition.

Bill to make sexual crimes gender neutral introduced in Parliament- indiatoday.in 13 July 2019[15]. This article came up with the notion of balance in legal and its application where protection to men, women, and transgender can be given equally to make balance. The article analyzed private bill which was introduced in Rajya Shaba by KTS Tulsi for bringing gender-neutral laws.

Dr. B. N Ray v. Ramjas College &Ors.[16], Four Male students of Ramjas College filled complaints of sexual harassment against the vice president in 2007 to the college complaint committee. On which petitioner argued that said ordinance did not apply to male students. The court on this decision that ordinance is available ‘any member of the university’ against ‘any member of the university’ which includes all the teachers, students, and staff of all gender.

  1. Research Questions

  (Q) What is the meaning of sexual harassment at the workplace?

(Q) What are the problems and difficulties exist in implementing POSH, Act, 2013?

  (Q) What are the possible solutions that can be made in POSH, Act, 2013?

  1. Research Objectives
  2. To frame the context of Sexual Harassment at the workplace in India.
  3. To trace the development of POSH, Act 2013?
  4. To analysis the posed challenges in implementing POSH, Act, 2013?
  5. To come up with a solution for improving POSH, Act, 2013.
  1. Methodology

This paper is descriptive only. Data collected for this study from secondary sources. The main aim of this paper is to discuss the meaning, implementation, challenges, and way forward of POSH, Act, 2013 in India.

Development of POSH, Act, 2013

The laws of different countries have attempted to define it in different ways. The Indian judicial experience with sexual harassment started with the case of Vishaka v. State of Rajasthan. The litigation resulted from a brutal gang rape of a publicly employed social worker, Bhanwari Devi in a village in Rajasthan during the course of her employment.[17] The linchpin for bringing such action to the Indian Supreme Court was to find appropriate methods of realizing the true concept of “gender equality” for women in the workplace. The court decided to use this opportunity to create a protective framework for the female workforce of this country, an area where there had been huge lacunae in Indian Law. Thus comprehensive guidelines were issued by the Supreme Court to ensure that the female workforce of this country is protected from sexual violence and sexually charged gender-discrimination in the workplace.[18]

With same footing precedents like Apparel Export Promotion Council v. Chopra, Francis Coralie v. Union Territory of Delhi, Grewal v Vimmi Joshi the jurisprudence for the Right to equal opportunity in the safe workplace developed. Subsequently, after twenty years The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passédon 9th December 2013 in the pursuance of Vishaka Guidelines laid down by the Supreme Court in 2005. Purpose of the Act is to protect women against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment.  Aggrieved Woman is the subject matter which gets prevention under this act which covers women of any age whether employed or not employed. Therefore, the victim of sexual harassment may be either employed woman or non-employed woman who is present at the workplace. This protection is available even for the woman worker who is working in a domestic house or dwelling house (Section 2(a)). For protecting such women from unwelcoming act or behavior sexual harassment includes  (i) physical contact and advances; (ii) a demand or request for sexual favors; (iii) making sexually colored remarks; (iv) showing pornography; and (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature (Section 2(n)). The Act under Section 3 further provides that: (i) No woman shall be subjected to sexual harassment at any workplace. (ii) The following circumstances, among other circumstances, may also amount to sexual harassment: (a) Implied or explicit promise of preferential treatment in her employment; or (b) Implied or explicit threat of detrimental treatment in her employment; or (c) Implied or explicit threat about her present or future employment status; or (d) Interference with her work or creating an intimidating o offensive or hostile work environment for her; or (e) Humiliating treatment likely to affect her health or safety. 

For redressal, the employer is duty-bound to establish an Internal Complaint Committee (ICC) mentioned under section 4 of the POSH Act, 2013. The committee will act as a platform to record, enquire and prevent sexual harassment acts within the workplace. As per Section 10 of the act, the Committee can conduct the conciliation at the instance of an aggrieved woman. If a compromise is reached, the committee shall not conduct the inquiry of complaint. However, if the employer fails to honor compromise, the committee may conduct the inquiry. The aspect of confidentiality, penalties, interim relief, inquiry, and other such concerns is being enabled in the POSH, Act 2013.

Challenges

The Act through the above-mentioned provisions ensures the best possible prevention process. This act also resorts the lacunae which were present in the prevision legal system. But the act also came up with new challenges that are divided into mechanism shortcoming and legal inconsistency.

  1. Mechanism Shortcoming – The mechanism shortcoming deals with the procedural problem that individuals can face while accessing justice through the provided process.

i) Definition Ambiguity – The problem of the extent to which this definition can increase the scope of the Act. If one includes ‘any women’ within the purview of the definition, then the same can also extend to include students, clients, visitors, etc., which clearly would not relate to the essential purpose for the formation of the Act, i.e. for establishing a safe working environment for the worker.

ii) Composition of Complaint Committee- It is difficult to miss the broad ambit of qualification that has been prescribed for the members. Of particular importance is the one emphasizing a ‘commitment to the cause of women’. No adequate specifications have been given as to the extent to which there needs to be a commitment to the cause and what work they should have done in that particular field. Moreover no requirement for an ‘expert in the field of law’ has been provided as a qualification for the members. The only requirement is that they need to have the legal knowledge, which is a highly broad standard for an Act like sexual harassment.

iii) Monetary loopholes- A major fault in the Act is that no responsibility has been put on the employer concerning maintaining a safe environment in the workplace. Although Chapter VI of the Act stipulates certain duties for the employer, there is no provision to ensure mandatory compliance of such duties, i.e. no penalty in case of non-compliance.

  • Legal Complexity-

i) Legislature Drafting Issues- The language which is used in Act is vague, subjective and un coherent. If one looks at the definition of sexual harassment, it becomes aptly clear that there is no specific mention of electronic means in the said definition.  Further, the definition runs into the problem of subjectivity by using the word ‘unwelcomed’. The perspective of ‘reasonable man’ comes into the picture with this, a perspective that is very difficult to measure or quantify.                                                                            

ii) Legal Protection to victimizer – There is no protection against victimization that has been provided in the definition. This leads to a highly problematic situation, wherein the workers would be in a constant conundrum, in terms of whether they should file the complaint or not.

iii) Right to Equality- The intend of this act is to enable women with legal protection to avail the right to work with safety. With the development of society and its aspect, the nature of sexual harassment is not left limited to women. The same offense can be committed by same-sex employee and employer or by the woman against men. The recent development in liberal law and societal morality has changed the nature of sexual harassment from gender-specific to gender-neutral. For this reason, private companies for their workplace are implementing gender-neutral POSH Policies. In 2015, the University Grant Commission enabled gender-neutral POSH Guidelines for Universities. Through Precedents, Corporate Policy and Institutional Guidelines for Gender Neutral treatment of Sexual Harassment at the workplace, the need for enlarging the scope of the POSH Act, 2013 should be taken into consideration.

  1. Conclusion

The right of work is one of the core rights which is granted to an individual by the state. It has direct nexus with Right to Life with Dignity which itself is Fundamental Right. In Prevention of Sexual harassment Act case journey initiated from the need of society on which present and later legislature develop. But the presence of a static legal system is not enough; the changes regarding governance and administration of the POSH Act mechanism at the workplace also need to be updated. It is also required that the law should be internalized in human behavior through awareness and campaign, to have equal work culture. Lastly, the Legal system, in this case, needs to match the progress of society and should be upgraded. Gender-specific law might be a need for the 1990s through which the Right to Equality can be achieved but to avail Right to Equality in the present era needs the law of gender-neutral.  Through these many suggestions, the state can make ensure that through legal system Equality at the workplace will be achieved to the individual. 

[1]Adinarayana, J., Right to Work as a Fundamental Right in India: An Overview (August 3, 2015). The IUP Law Review, Vol. IV, No. 4, October 2014, pp. 7-14. Available at SSRN: https://ssrn.com/abstract=2638999

[2]The People’s Union of Civil Liberties, Tihar, 1981.

[3]B.N. Ray vsRamjas College &Ors.on 21 May 2012. 

[4]AlokBhasin, Sexual Harassment at Workplace, Eastern Book Co, (2007).

[5]Riru Gupta, Sexual Harassment at Workplace- A detailed analysis of the Sexual Harassment of women at the workplace (Prevention, Prohibition, Redressal) Act, 2013, 1st Edition, LexisNexis India, (2013).

[6] Conceptualizations of Workplace Bullying, Journal of Personnel Psychology 2011; Vol. 10(4):157–165.

[7] Feminists or Gender Extremists, Indian Law Journal 2017; Vol. 2(1): 112-132.

[8] Gender-Neutral Indian Penal Code: Way for a Gender-Just Society. International Journal for Human Rights 2018; Vol. 6: 312-147.

[9] Gibran Naushad and SusanahNaushad, The Sexual Harassment of Women at Workplace: An Unmanned territory, India Law Journal, Retrieved from at 15-2-2020, Retrieved from (https://www.indialawjournal.org/archives/volume8/issue-1/article9.html)

[10]Economictimes, Published on 22nd August 2010, Retrieved on 6-3-2020, Retrieved from (https://economictimes.indiatimes.com/special-report/even-men-arent-safe-from-sexual-harassment-at-workplace-survey/articleshow/6389438.cms)

[11]Mondaq, 15th January 2020, Retrieved on 6-3-2020, Retrieved from (https://www.mondaq.com/india/Employment-and-HR/876342/Harnessing-The-Power-Of-Gender-Neutrality-In-The-Workplace?signup=true)

[12] The Better India, 19th July 2017, Retrieved on 6-3-20202, Retrieved from (thebetterindia.com/101407/sexual-harassment-need-to-be-gender-neutral/)

[13] India Legal Live, 13th July 2019, Retrieved on 6-3-2020, Retrieved from (https://www.indialegallive.com/did-you-know-facts-about-news/perspective-news/male-rape-making-the-system-neutral-68529)

[14] India Today, 8th June 2016, Retrieved on 6-3-2020, Retrieved from (https://www.indiatoday.in/education-today/news/story/ugc-regulation-13007-2016-06-08)

[15] India Today, 13th July 2019, Retrieved on 6-3-2020, Retrieved from (https://www.indiatoday.in/india/story/bill-to-make-sexual-crimes-gender-neutral-introduced-in-parliament-1568504-2019-07-13)

[16] 2012 (130) DRJ 277

[17]Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241, AIR 1997 SC 3011, (1998) BHRC 261, (1997) 3 LRC 361, (1997) 2 CHRLD 202

[18] Gibran Naushad and SusanahNaushad, The Sexual Harassment of Women at Workplace: An Unmanned territory, India Law Journal, Retrieved from at 15-2-2020, Retrieved from (https://www.indialawjournal.org/archives/volume8/issue-1/article9.html)

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