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Article On Posh Act

PoSH was enacted on 9 December 2013. The act was made to ensure the safety of women at the workplace. It protects against sexual harassment of women in the workplace.Sexual harassment not only violates the fundamental right of a woman to equality enshrined under articles 14 and 15 of the constitution but also violates the right to live dignity and right to practice any profession or to carry on any occupation or business which is also guaranteed under article 21 and 19 respectively.

Further, the right to work with dignity and protection of women against sexual harassment are basic human rights that are universally recognized by international conventions like conventions on the limitation of all forms of discrimination against women. Needless to say, it has also been rectified by government of India.

Definition Of Sexual Harassment In The Act

Section 2(n) of the act defines sexual harassment. It includes any one or more of the following:
  • Uninvited physical contact and advances
  • Making demand for sexual favours
  • Making sexually covered remarks
  • Showing pornography
  • Any other unwelcome behaviour whether it's physical, verbal or non-verbal.

The main objective of the sexual harassment act of 2013 is to protect women from sexual harassment and make it a safer place for them. Sexual harassment at a workplace is considered an infringement of women's right to life, liberty and equality. It creates hostile work surroundings, which is not conducive to women's participation in work, thereby negatively affecting their economic and social empowerment and the goal of inclusive growth.

Vishaka Vs State Of Rajasthan

It is a landmark case that deals with the evil of sexual harassment of female employees at the workplace.

Brief facts of the case are as follows:
Bhanwari Devi, a Dalit woman was a social worker in the village of Rajasthan. She was working with the govt of Rajasthan to stop child marriages in the village. She somehow stopped the marriage of the daughter of a man called Ram Karan who belonged to the Gurjar community. The girl was not even one year old. As a result, Bhanwari Devi and her family were boycotted by villagers and after a few months, the father of the child along with the other four men brutally gang-raped her.

Not only this, the police officers instead of helping her tried almost everything to not lodge the FIR in the case which resulted in a delayed investigation. The medical examination was also not conducted on time. It was delayed for 52 hours. Moreover, the doctor did not mention anything about the commission of rape in the report but rather mentioned the age of the victim.
Consequently, the accused were acquitted by the trial court as there were not sufficient pieces of evidence on record to convict them. However, the high court convicted the accused men of assault whose punishment is much less than the crime of rape.

The judgement gave rise to anger among the masses which led to a series of protests and demands for equality and justice. Subsequently, a writ petition was filed by a women's rights group called Vishaka which focused on enforcement of basic human rights and fundamental rights of female employees at a workplace under articles 14, 15, 19 & 21 of the constitution of India.

It is a landmark case that led to the establishment of the Supreme Court issued guidelines in this particular case that formed the basis of the act.

Guidelines Supreme Court held that it will be the responsibility of the company to stop sexual harassment and to devise the settlement and resolution mechanism for the same.

The court defined sexual harassment for the first time as there was no concrete definition of sexual harassment before this case. It included:
  • Uninvited physical contact and advances
  • Making demand for sexual favours
  • Making sexually covered remarks
  • Showing pornography
  • Any other unwelcome behaviour whether it's physical, verbal or non-verbal.

Obligation Of Employer And Preventive Measures

All employers should take preventive measures and appropriate working conditions should be provided concerning work, health, leisure and hygiene to further pave the way for a safer environment for women at workplaces.

According to section 19 of the act, an employer must lodge a complaint where a women employee is treated is-appropriately and it amounts to a certain offence under IPC or under any other law. The employer also must make sure that witnesses or victims are not further victimized while dealing with the issue.

Complaint Redressal Committee

The guidelines issued by sc made it mandatory for all the organizations to establish a committee to address the problem faced by the victim. It was held that the said committee should be headed by a woman only and at least half of its members should be women.

Therefore, section 4 of the Act mandates that every company having more than 10 employees is required to constitute an internal committee to address the complaints about sexual harassment of women in a very confidential way.

Initiative To Be Taken By Employees

It was held that workers should also be allowed to take a stand and raise questions related to sexual harassment at workers meetings and other appropriate forums.

Awareness About The Rights Of Women Employees

People should be made aware of the rights of female employees in particular by specifically notifying these guidelines court also requested central/ state governments to take steps including legislation to make sure that these guidelines laid down by the court in this particular order are followed/ observed by the employers in the private sector.

Consequently, provisions regarding the duties of employers, district officers and appropriate governments by organizing awareness programmes and engaging non-governmental organizations with them to create awareness among people were added in the act.

Repercussions Of Not Complying With The Provision Of The Act

If the employer does not comply with the provisions of the act, he will be liable to pay a penalty up to Rs 50,000. Moreover, the repetition of the same offence would lead to the punishment being doubled or the cancellation of business licenses. However, it is important to mention here that all offences under this act are non-cognizable.

Section 13 and 15 of the act deals with the provisions of providing compensation and the basis of determination on which the compensation would be provided.

Cognizance Of The Offence By Court

The court can take cognizance of the offence on the complaint made by the aggrieved or any person authorized by the ICC or the LCC (section 27(1)). No court inferior to that of a metropolitan magistrate or a judicial magistrate of the first class will try the offence punishable under this act (section 27(2)). However, it is important to mention here that all offences under this act are non-cognizable.

The judgement paved a way for women's safety and protection at the workplace. After sixteen years, India had its first act to specifically deal with the issue of sexual harassment at the workplace. It came to be known as the sexual harassment of women at the workplace (prevention, prohibition and redressal) act, 2013. The guidelines mentioned in the judgment were added in the act in one form or the other.

Post-Vishaka Development

The first case before the Supreme Court after the Vishaka case was Apparel Export promotion council VS A.K. Chopra. This was the first case in which Supreme Court upheld the Vishaka Judgement, it was held in the case that sexual harassment of a woman in the workplace violates the fundamental rights under articles 14, 19 and 21 of the constitution.
According to the court:
"Sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her."

Such cases are required to be dealt with with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance. The high court overlooked the ground realities and ignored the fact that the conduct of the respondent against his junior female employee, miss x, was wholly against moral sanctions, decency and was offensive to her modesty.

Reduction of punishment in a case like this is bound to have a demoralizing effect on the women employees and is a retrograde step. There was no justification for the high court to interfere with the punishment imposed by the departmental authorities. The act of the respondent was unbecoming of good conduct and behaviour expected from a superior officer and undoubtedly amounted to sexual harassment."

Another important case was Medha Kotwal Lele & Ors Vs Union Of India & Ors which directed the state government to file affidavits emphasizing the measures taken by them to implement the guidelines. the supreme court held that:
"The implementation of the guidelines in Vishaka has to be not only in form but substance and spirit to make available safe and secure environment to women at the workplace in every aspect and thereby enabling the working women to work with dignity, decency and due was also held by the apex court that in case of non-adherence or non-compliance of the Vishaka guidelines the aggrieved person would be allowed to approach the high court."

The impact of the posh act as an effective legal remedy for women who are facing sexual remedy for women who are having sexual harassment in the workplace can be seen in rising no. Of complaints regarding such cases every year. The act was specifically enacted to deal with the cases of sexual harassment of women in the workplace. It is based on the guidelines issued in Vishaka judgement. The judgement embodied the actual meaning of judicial activism.

The mechanism established through this act can be quickly assessed by women for settlement. The committees and authorities need to be sincerely monitored. The identities and addresses of the victims and witnesses must be kept confidential. It must not be revealed to the public and media.

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