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Does the POSH Act Need a Revisit? A Comprehensive Analysis

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is no doubt a highly welcome legislation enacted by the Indian Parliament to provide for protection of women working in both organised and unorganised sectors of the society against sexual harassment of any kind.

The Act is informally and more well known as the POSH Act, an abbreviation for Prevention of Sexual Harassment at Workplace Act.
Sexual harassment is a criminal offence and the Indian Penal Code comprehensively deals with it under sections 354, 354A, 509.
However it was felt that in a workplace, individuals may at times want to avoid the stigma or the pressure that comes with filing a criminal complaint against a co-worker and therefore may wish to deal with sexual harassment in a like manner as that of a civil case.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is quite comprehensive and seeks out all forms of harassment that a person might face in a workplace and its redressal mechanism is also aimed at establishing a non-biased and impartial body which can conduct proper investigations into issues faced by employees of such kind.

However as with any other legislation, there has been several red flags that has been raised in this statute.
In this article, we shall look into all the concerns and critically analyse them to find out whether the statute has any room for improvement or whether it requires a comprehensive overhaul.

Is the POSH Act Gender Neutral?

The main issue with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is that it does not provide for the protection of male employees in the workplace.

In fact, in a seminar organised by Abhyudaya Agarwal, the cofounder of iPleaders to sensitize organisations regarding the POSH Act, it was found that there were clear signs of unresolved anger and disinterest among men in the workshop[1].

In fact, the vast majority of the attendees were found to be women. While there were found to be several causes to this turnout, one of the ways in which men could be made more ready to take part in causing greater enforcement of the statute is by bringing them under the protection granted by the statute in the first place.

Before debating upon the gender neutrality of POSH Act, sexual harassment as a crime should be first looked upon.

Indian Penal Code already contains provisions contained in Sections 354, 354A, 509 to deal with sexual harassment or insulting the modesty of a woman[2]. However none of these provisions deal with sexual harassment against a male individual.

Similarly in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Act has no provision on how a business needs to deal with sexual harassment against men. Section 3(1) of the Act provides - No woman shall be subjected to sexual harassment at any workplace.[3] Similarly Section 9 which provides for complaint relating to sexual harassment has no provision for a male individual to file a complaint.

Now it can be considered that an organization may use its Internal Complaints Committee to also inquire into and report upon cases filed by male employees. However this can not be done as the Act which envisages the constitution of the ICC, grants it the powers of a civil Court under Section 11(3)[4].

Section 11(3) provides:
For the purpose of making an inquiry under sub-section (I), 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:
  1. summoning and enforcing the attendance of any person and examining him on oath;
  2. requiring the discovery and production of documents; and
  3. any other matter which may be prescribed.

Therefore this body is the creation of the statute and only exists and its powers are only operational when it inquires into sexual harassment complaints filed by women.

As such, it can be stated with confidence that the Act is not gender-neutral. If a business wishes to set up a committee to inquire into sexual harassment claims against men, they need to set it up separately as well as create a separate policy on sexual harassment claims by men.

However this roundabout way may prove highly costly, a waste and misapplication of resources and can become infeasible for startups or businesses with several franchises or offices or units spread across different regions.

The US Equal Employment Opportunity Commission (EEOC) however defines sexual harassment as "Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature" at the workplace." This definition is perfectly gender neutral and can help cause for better allocation of resources of a business to deal with sexual harassment claims. It can also help in better reporting of sexual harassments caused against men as the data is almost non-existent in India. This should not go about to suggest that sexual harassment against men is non-existent in India.

Rather it shows that Indian law do not even bother to collect any data relating to sexual harassment faced by men, including in the workplace.

This revelation is particularly bothering as US Equal Employment Opportunity Commission’s data shows that around 16.6% of the complaints of sexual harassment received by the commission annually are by men[5].
This means even with the unwise allocation of resources setting up of idle IICs all over offices of workplaces, men have no place to address their grievances.

Anonymity of Complaints – A Requirement?

Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[6] provides:

  1. Any aggrieved woman may make, in writing, a complaint of sexual harassment at work place to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, 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: Provided that where such complaint cannot be made in writing, 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, shall render all reasonable assistance to the woman for making the complaint in writing: Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
  2. 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 or such other person as may be prescribed may make a complaint under this section.
Thus it can be seen that the statute via the aforementioned section insists for the complaint that is filed by an aggrieved woman to be in that of a written fashion.

This causes for the inability for an aggrieved woman to file a complaint anonymously.[7] Although the SHe Box, introduced by the Indian Ministry for Women helped direct complaints by women directly to the ICC, it does not allow for any whistle-blower mechanism which may be highly necessary for a country wherein women face a lot of stigma when they have to identify a perpetrator.

In fact, the Rajasthan High Court had in the case of Shital Prasad Sharma v. The State of Rajasthan and Others[8], held that it would be a violation of the natural justice of the person against whom the complaint has been lodged if he has not been allowed to cross examine the complainant concerned.

Is the POSH Act Grounded in Reality for Small Businesses

The POSH Act mandates the constitution of an Internal Complaints Committee for any business that has 10 or more employees. Although this has not been explicitly mentioned anywhere in the statute, a basic reading of the statute will show clearly that the Local Complaints Committee has been engaged to deal with complaints in workplaces having less than 10 employees.

Section 6 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides:

  1. Every District Officer shall constitute in the district concerned, a committee to be known as the Local Committee to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.
  2. The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Committee within a period of seven days.
  3. The jurisdiction of the Local Committee shall extend to the areas of the district where it is constituted.[9]

Thus a harmonious reading of the statute will make it clear that the POSH Act mandates businesses with or above 10 employees in engaging an Internal Complaints Committee. Now, this might seem a great way to make workplaces more beneficial for women; however it leads to poor enforcement of the statute.

This is because businesses with around 10 employees are usually startups and are massively cash strapped. Add to that, the fact that 9 out of 10 startups fail[10] with the most relevant cause being lack of revenue[11] and hiring of the wrong team[12] and it becomes evident that startups can’t afford hiring staff that are not absolutely essential to their business.

However, that’s not all.

Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 states:

  1. Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the "Internal Complaints Committee":
    Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.
  2. The Internal Committee shall consist of the following members to be nominated by the employer, namely:
    1. A Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees: Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (l);

      Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;
    2. 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;
    3. 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.

  3. 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.
  4. The Member appointed from amongst 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.
  5. Where the Presiding Officer or any Member of the Internal Committee:
    1. contravenes the provisions of section 16; or
    2. has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
    3. he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
    4. has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

In the proviso to subsection 1 of Section 4[13], it can be seen that the Act mandates that when a workplace has several offices and/or administrative units in different locations, each of the locations must constitute an Internal Complaints Committee.

This provision of the POSH Act puts much more pressure for small businesses with franchises such as restaurants[14] or service centers which have a very low margin for each of its establishments. It also acts as a deterrent on the part of small businesses from opening franchises in different locations and/or keeping employee count less than 10.

As can be seen by a combined reading of sub-section 2(c) of the aforementioned section 4 with Rule 3 and Rule 4 of the Sexual Harassment of Women at Workplace Rules, 2013, mandates employing external members skilled in social work and/or law and also provides for a minimum allowance that is to be given daily[15].

In fact, the Bombay High Court in the case of Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University[16], held that it was mandatory to appoint an external member, failing which the ICC would become illegal as per the statute. In the case of Ruchika Singh Chhabra v. Air France India and Another[17], the High Court again reiterated that the ICC must have an external member from an NGO committed to the cause of women.

Further, the Act also mandates that the presiding officer of the ICC shall be a woman who is a senior level executive in the workplace. This causes for the organization having to devote one of its key employees to a non-essential business purpose which shall be a drainage to their resources. The Rajasthan High Court in the case of Shital Prasad Sharma v. The State of Rajasthan and Others[18], had held that the Presiding Officer can not be changed on a case to case basis, depending on the seniority of the respondent in any given complaint. This causes for creating a permanent seat for the ICC members for three years in the workplace consisting of ten or more employees.

Now, it is not that the Parliament had overlooked these issues while framing the law. In fact, the Department-Related Parliamentary Standing Committee on Human Resource Development had debated whether the ICC should be made as a permanent body or constituted on an ad-hoc basis as well as dissolved immediately after the completion of the inquiry and submission of the report[19].

Further, the Committee in Clause 8.5 mentioned that in case of organization having more than one office at one or more locations and facing difficulty in constituting ICC at its branch offices/units, ICCs may be constituted at the headquarters which may cover the other units also by co-opting local members from that branch/unit from where the complaint may arise.

Thus it can be seen that businesses having multiple branches needs to have multiple concurrent ICCs at their head office sitting idle and waiting for a complaint to be lodged. This provision thus can be seen as highly redundant and needing change.

Further according to the Companies (Accounts) Amendment Rules, 2018, now the board of a company has to mandatorily disclose in its report that it 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[20].

This increases the Directors’ burden and can lead to businesses not incorporating themselves.

Settling Scores using the POSH Act – A Cause for Worry?

In the previous segment on Is POSH Act Gender Neutral, it was pointed out that in a seminar organised by Abhyudaya Agarwal, the cofounder of iPleaders to sensitize organisations regarding the POSH Act, that men had a lot of anxiety against the POSH Act.[21] In fact, a lot of members felt that the statute could be used by unscrupulous women to settle scores in the workplace against individuals whom they disliked.

However, this should not be a cause for worry as Section 14 of the Act makes fraudulent or malicious complaint a punishable offence according to the service rules of the complainant woman. However proviso 1 of Section 14 also dictates that malicious intent on part of the complainant has to be established after an inquiry in accordance with the procedure prescribed, before any action is recommended. [22]

However if any false evidence or any forged or misleading document has been provided by the complainant, the Complaints Committee may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

Although in India, certain laws aimed at helping women are at times misused[23], the fact of the matter is that this law has sufficient checks and balance against false and malicious accusations. In the case of Union of India v. Reema Srinivasan Iyengar[24], the Madras High Court held that - Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is intended to have an equal standing for women in the work place and to have a cordial workplace in which their dignity and self respect are protected, it cannot be allowed to be misused by women to harass someone with an exaggerated or non-existent allegations.

As such, it is not a cause for worry that certain individuals may use the statute to settle scores in their workplace. The Courts of law are well aware of the facts that there might be unscrupulous individuals who may use this statute to settle scores and therefore there are adequate safeguards to deter that effect, as has yet in another circumstance been proven by the Delhi High Court in the case of Anita Suresh vs Union of India & Others[25].

Conclusion
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is no doubt a welcome legislation.

However there is room for a lot of improvement.

Firstly, the Act has to be made gender neutral so as to allow for greater male participation. This will also help boost the enforcement of the provisions of the statute as the case of D.S Grewal vs. Vimmi Joshi & others[26] brought the lack of enforcement of the Vishakha guidelines (precursor to the POSH Act) to the limelight.

Secondly the Act should make the ICC, an ad-hoc body that is constituted and dissolved as and when a case arises. In the 21st century, which is basically the digital era, there is no requirement for a physical body to be permanently constituted for taking complaints in each and every branch of a business. This provision is highly anti-business and is a great barrier for startups to grow in India. As such, the constitution of an Internal Complaints Committee is rarely observed in India, which is marked by small businesses operating at different locations.

The Act may be improved upon so as to have a facility for whistleblowers to provide inputs on sexual harassments being faced by them or other members in the workplace, subsequent to which the ICC shall have the discretion on whether to investigate the issue or not.

However, the thought as to whether the Act might be used by individuals to settle scores or not, seems highly unlikely as the statute has adequate safeguards against that. Further several case-laws as has been cited beforehand shows that the Courts are vigilant on that aspect as well.

End-Notes:
  1. Dear Indian men, calm down! Women can't misuse anti-sexual harassment laws at workplaces, available at: https://www.firstpost.com/living/dear-indian-men-calm-down-women-cant-misuse-anti-sexual-harassment-laws-at-workplaces-2130451.html (Last Visited on September 28, 2020)
  2. Indian Penal Code, 1860, ss. 354, 354A, 509.
  3. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s.3(1).
  4. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s.11(3).
  5. Charges Alleging Sex-Based Harassment (Charges filed with EEOC) FY 2010 - FY 2019, available at: https://www.eeoc.gov/statistics/charges-alleging-sex-based-harassment-charges-filed-eeoc-fy-2010-fy-2019 (Last Visited on September 29, 2020)
  6. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s.9.
  7. India’s POSH Act: What International Companies Need to Know, available at: https://www.convercent.com/blog/indias-posh-act (Last Updated on December 14, 2018).
  8. Infra Note. 19
  9. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s.6.
  10. #9 Out of 10 Start-ups Fail. Here's Why!, available at: https://www.entrepreneur.com/article/295798 (Last Visited on September 28, 2020).
  11. Why do Start-ups Fail? Revenue May Be the No. 1 Reason., available at: https://www.entrepreneur.com/article/286022 (Last Visited on September 29, 2020).
  12. Smart Hiring Can Keep Your Startup From Failure, available at: https://www.tlnt.com/smart-hiring-can-keep-your-startup-from-failure/ (Last Visited on September 29, 2020).
  13. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s.4.
  14. Constitution Of ICC Under The POSH Act, available at: https://www.mondaq.com/india/discrimination-disability-sexual-harassment/776002/constitution-of-icc-under-the-posh-act (Last Visited on September 29, 2020)
  15. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, rs 3, 4.
  16. 2014 SCC OnLine Bom 814
  17. (2018 LLR 697)
  18. 2018 Lab IC 1859
  19. Department-Related Parliamentary Standing Committee On Human Resource Development, TWO HUNDRED THIRTY-NINTH REPORT ON THE PROTECTION OF WOMEN AGAINST SEXUAL HARASSMENT AT WORKPLACE BILL, 2010 35 (December, 2011)
  20. Companies (Accounts) Amendment Rules, 2018, rule 2.
  21. Supra note 2.
  22. Supra note 7, s.14.
  23. Does India have a problem with false rape claims?, available at: https://www.bbc.com/news/magazine-38796457 (Last Visited on September 29, 2020)
  24. WP Nos. 10689, 24290 and 4339 of 2019
  25. W.P.(C) 5114/2015
  26. CIVIL APPEAL NO. 7355 of 2008 (Arising out of SLP (C) No. 10044 of 2006

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