PoSH Act 2013 - Regulations, Implementations, Appeal & Penalty

Sexual harassment of a woman in the workplace is a matter of grave concern to humanity on the whole. It cannot be construed to be in a narrow sense, as it may include sexual advances and other verbal or physical harassment of a sexual nature by virtue of which the victims of sexual harassment face terrible psychological and health issues such as stress, depression, anxiety, shame, and guilt.

In wake of the Supreme Court judgment in the case of Vishaka & Ors. vs. State of Rajasthan & Ors. (1997), the Ministry of Women and Child Development (“Ministry”), after several years, vide a Notification dated December 9, 2013, passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”). Simultaneously, the Ministry also formulated the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013 (“PoSH Rules”) effective from the same date in order to strengthen and streamline the provisions under the PoSH Act. The PoSH Act has been implemented with an aim to prevent and protect women from sexual harassment in the workplace and thereby ensure a safe working environment for women. The PoSH Act, as mandatary compliance, requires every company having more than 10 (ten) employees to constitute an Internal Complaints Committee (“ICC”) in the prescribed manner in order to receive and address the complaints of any sort of sexual harassment from women in a time-bound and extremely confidential manner.

Vishaka vs State Of Rajasthan (1997)

Vishaka & Ors. v/s state of Rajasthan is a historical case that deals with the offense of Sexual Harassment of women at her workplace. The Supreme Court through this judgment has brought a paramount transition with respect to the manner to deal with cases of sexual harassment. The ambit of ‘Sexual Harassment’ includes an uninvited or unwelcome sexual favor or sexual gestures from one gender towards the other gender. Such evil acts make the person feel humiliated, offended, and insulted to whom it is been done.

In the year 1992, Bhanwari Devi, employed with the rural development program of the Government of Rajasthan, was viciously gang-raped on account of her efforts to limit the then prevailing practice of child marriage and support the government’s campaign against child marriage while the villagers were ignorant of such cause and continued supporting the practice of child marriage. In the meantime, a family in the said village decided to carry out a child marriage of their infant daughter by virtue of which Bhanwari attempted to convince the family not to carry out the said marriage, however, her efforts did not bring any change in the scenario and the family chose to proceed with the marriage. Subsequently, a few policemen tried to stop the said marriage however no action was taken against the family and the marriage was successfully performed thereafter.

Subsequently, it was determined by the villagers that the said visit of the police is a result of Bhanwari’s actions by virtue of which not only did she lose her job but her family was also boycotted by the whole village. With an intent to seek revenge on Bhanwari, 5 (five) men attacked Bhanwari’s husband and brutally raped her. However, due to the great political/social influence of the family of the accused, the rape survivor did not get justice from the courts, and the rapists were allowed to go free.

Supporting the cause of working women in India, lawyers and women’s rights activists filed public interest litigation (PIL) in the Supreme Court under the banner of Vishaka. The Supreme Court, considering such grave concern, acknowledged the glaring legislative shortcoming and acknowledged workplace sexual harassment as a human rights violation under the Constitution of India.

Un Convention On The Elimination Of All Forms Of Discrimination Against Women (CEDAW)

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (“Convention”), was implemented in the year 1979 by the UN General Assembly which is often described as an international bill of rights for women. It enumerates what constitutes discrimination against women and also sets up a goal for national action to end such discrimination.

The Convention describes discrimination against women as “…any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

The Convention provides the basis for achieving equality between women and men through ensuring women’s equal access to, and equal opportunities in, political and public life including the right to vote and to stand for election as well as health, education, and employment. The parties to this Convention agree to take all suitable measures, including legislation and temporary measures so that women can enjoy all their human rights and fundamental freedoms.

The Convention is the only human rights treaty that affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women’s rights to acquire, change or retain their nationality and the nationality of their children.

It is imperative to note that the Countries that have acceded to the Convention are legally bound to set its provisions into practice.

Internal Complaints Committee (ICC)

The PoSH Act mandates that any organization having 10 (ten) or more employees shall constitute an Internal Complaints Committee by an order in writing. The ICC will have the adequate power to investigate sexual harassment complaints and redress them in the manner enumerated under the PoSH Act and PoSH Rules. If an organization has multiple administrative divisions at different locations, the ICC has to be constituted in each such administrative division.

In the event, the organization consists of less than 10 (ten) employees, it is not mandatory for the said organization to constitute the ICC, and all complaints pertaining to sexual harassment, in this case, will go to the local complaints committee which is set up by district officers of each district in accordance with the PoSH Act.

Sexual harassment at the workplace is a very sensitive issue and is required to be handled with the utmost care, patience, and understanding thus, it is imperative that the complaints must be redressed as quickly as possible in order to ensure a harmonious and harassment-free workplace for all employees. Therefore, constituting an ICC sends a powerful message that the company is completely committed to working toward women’s safety. Nonetheless, it is pertinent to note that constituting an ICC is a mandatory requirement under the PoSH Act and not abiding by the same can attract heavy fines including cancellation of license to conduct business operations.

Composition of the ICC

An ICC constituted by an organization should have a minimum of 4 (four) members including an external member and at least one-half of the ICC members should be women.

Following are the three types of members ICC has:

1. Presiding Officer

Presiding Officer is the chairperson of the ICC and should mandatorily be a female employee holding a senior position in the company. This makes it easier for women to approach the ICC with their complaints and explain the matter in a better manner. In case a senior female employee is not available to fulfil the position of the presiding officer, the employer can appoint a senior female employee for such position from any other administrative units/offices, or from another workplace owned by the same employer.

2. Employee Members

At least 2 (two) members must be nominated as employee members of the ICC. It is preferable that the said employee members have significant legal knowledge and have worked for a social cause or women's safety. Since it is not always practical to have employees with legal knowledge in the space of women's safety, the employer is responsible to provide training to the employee members frequently to equip them with the necessary knowledge and skills while handling such complaints.

3. External Member

The PoSH Act refers to an external member, which generally means a person from a non-governmental organization or association committed to the cause of women or any person who is familiar with the issues of sexual harassment in general. The objective of having an external member with such expertise is to ensure that the activities of the ICC are unbiased and uninfluenced, and the inquiry process is neutral and transparent.

Redressal Do’s And Dont’s

In order to effectively address the sexual harassment complaints at the workplace, the ICC must first be aware of their key responsibilities such as

(i) being thoroughly prepared with the laws and procedures including but not limited to policies, service rules, and relevant rules and regulations;

(ii) gather and record all relevant information, and documents with respect to the complaint made by the aggrieved; and

(iii) determine the main issues in the complaint and act upon them in a fair manner.

The ICC must undertake the following practices:

• Create an enabling meeting environment.
• Make use of body language that conveys complete attention to the parties.
• Treat the complainant with respect.
• Discard pre-determined ideas.
• Determine the harm.

However, the ICC must avoid undertaking the following activities:

• Get aggressive.
• Insist on a graphic description of sexual harassment.
• Examine and discuss the complaint in the presence of the complainant or the respondent.

When it comes to redressing sexual harassment at the workplace, employee/worker has a right to expect a trained, skilled, and competent complaints committee, a time-bound process, information confidentiality, assurance of non-retaliation, counseling or other enabling support where needed, and assistance if the complainant opts for criminal proceedings.

Inquiry into the Complaint and Associated Timelines

Primarily, the aggrieved women are required to file a written complaint to the ICC (6 copies) along with supporting documents, names, and addresses of witnesses within 3 (three) months from the date of the incident/ last incident. The ICC has the power to extend the said timeline by another 3 (three) months for reasons which shall be recorded in writing and if the ICC is satisfied with the provided reasons. It is pertinent to mention that where such a complaint cannot be made in writing, the Presiding Officer or any other Member of the ICC shall render all reasonable assistance to the aggrieved woman for making the said complaint in writing. Thereafter, 1 (one) copy of the complaint is to be sent to the respondent within 7 (seven) days of receiving the complaint. Further, upon receiving the copy of the complaint, the respondent is required to respond to the said complaint along with a list of supporting documents, and names and addresses of witnesses within 10 (ten) working days.

The Inquiry, as prescribed under the PoSH Act, has to be completed within a total of 90 (ninety) days from the receipt of the complaint. The ICC is required to furnish the inquiry report to the employer within 10 (ten) days from the date of completion of the inquiry. Finally, the employer is required to act on the recommendations of the ICC within 60 (sixty) days of receipt of such inquiry report.

Appeal

In case a party is not satisfied or further aggrieved by the implementation or non-implementation of recommendations made, it may appeal to the appellate authority in accordance with the PoSH Act and PoSH Rules, within the such time frame as prescribed thereunder.

Penalty for Non-compliance Under Posh Act

In the event, the employer fails to constitute the ICC and/or contravenes or attempts to contravene or abets the contravention of other provisions of this PoSH Act or the PoSH Rules shall be punishable with a fine which may extend to INR 50,000/- (Indian Rupees Fifty Thousand Only). Further, in any employer who has been previously convicted of any punishable offense under the PoSH Act commits and is convicted of the same offense, he shall be liable for twice the punishment which might have been imposed on such first conviction and such acts of the employer may also lead to cancellation or non-renewal of the employer’s license/registration, as the case may be, by the government or local authority, which is required to carry out his business activity.