POSH ACT: A CRITICAL ANALYSIS

ABSTRACT

The blog explores the landscape of the Protection of Women from Sexual Harassment (PoSH) Act in India, tracing its evolution from the Vishaka Guidelines to its current form. Highlighting the Act's comprehensive coverage across sectors and its definition of sexual harassment, it sheds light on the procedural mechanisms for redressal, including Internal Committees (IC) and Local Committees (LC). Delving into the implementation challenges, it addresses issues like reporting ambiguity, reluctance of victims, and lapses in establishing ICCs. The abstract emphasizes the critical need for aligning legislation with effective application, advocating for a cultural shift toward zero tolerance for harassment, employer accountability, awareness initiatives, and support structures for victims. It stresses the importance of concerted action to bridge the gap between law and practice, ensuring workplaces where women are secure, empowered, and free from harassment.

BACKGOUND OF THE POSH ACT

The Vishaka Guidelines were first introduced by the Supreme Court in 1997. The court declared, "Gender equality includes the right to work with dignity and protection from sexual harassment, which is a universally recognized basic human right." The recommendations, however, did not specifically address sexual harassment of women who work in the unorganized sector, a population that currently numbers about 195 million.

Sexual harassment is defined by law as any unwanted physical, verbal, or non-verbal behavior of a sexual character, as well as physical contact and approaches, demands or requests for sexual favors, sexually suggestive statements, and the presentation of pornographic material. According to the law, any of these behaviors—direct or implied—amount to sexual harassment. It offers an alternative to reporting a crime to the police by requiring employers, in the case of a private company, to form committees, or in the case of the informal sector, to designate representatives of local government to receive complaints, investigate, and suggest appropriate action against offenders. This might be anything from a formal apology to having your job terminated.

Every employer who employs ten or more people must form an Internal Committee (IC) at each office in accordance with the POSH Act. A Local Committee (LC) must be formed in each district and, if necessary, at the block level by the state government's district officer or collector for establishments with fewer than ten employees, if the complaint is directed against the employer, or for women employed in the informal sector. In addition, the government oversees creating educational and training materials, planning awareness campaigns, overseeing the law's application, and keeping track of the quantity of workplace sexual harassment complaints that are reported and settled

GAPS BETWEEN THE LEGISLATION AND THE IMPLEMENTATION

Important problems impeding the effectiveness of the Protection of Women from Sexual Harassment (PoSH) Act have come to light as a result of the Indian Supreme Court's recent concerns about its implementation. The Act, which was passed in 2013, represented a major advancement in the creation of respectful and safe work environments for women. But in practice, there are a number of flaws that undermine its efficacy.

The unpredictability of implementation is one of the main obstacles. Workers frequently struggle with knowing who to contact in the event of sexual harassment at work. This ambiguity makes people reluctant to report occurrences, which feeds a vicious cycle of underreporting and harassing continuation.

In addition, women are generally reluctant to come out and report cases of harassment. Victims are discouraged from using the PoSH Act's procedures to seek redress because they lack faith in the procedure and believe the results are inadequate. The inhospitable and callous work settings that do not offer resentful employees the essential assistance exacerbate this hesitation.

Another obvious problem is the failure to establish Internal Complaints Committees (ICCs). Remarkably, as required by the Act, only a small portion of national sports federations have established these committees. This disregard for the law is indicative of a structural breakdown in guaranteeing the creation of crucial frameworks for handling and resolving complaints of harassment.

Moreover, the issue is made worse by the anxiety of leaving one's house when there isn't a safe place to work. Employers who do not provide a safe and supportive environment hinder women's advancement in the workplace and limit their capacity to make a full contribution to society.

There have been occasions when the investigation process has been tainted by hurriedness, ignoring natural justice standards. This hasty approach calls into doubt the fairness of the results and damages the credibility of the investigations.

The Supreme Court's order for a time-bound verification procedure is a positive beginning toward resolving these worries. The directive requiring government agencies, departments, and ministries to confirm and release committee details shows a dedication to openness and responsibility.

A ray of hope for establishing safer workplaces for women is the POSH Act. However, the real effectiveness of it rests in the sincere attempts to close the gap between the law and its efficient application. We can only fully realize the Act's promise to protect women from sexual harassment at work by taking coordinated action and being steadfast in our commitment to this goal.

International Legal Responsibilities

The United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which forbids sexual harassment of women at work as a violation of their human rights, was adopted by India in 1993. The International Covenant on Economic, Social, and Cultural Rights, to which India is a party, states that states have a fundamental duty to forbid sexual harassment at work through legislation, ensure adequate procedures and mechanisms for complaints, and establish criminal sanctions for sexual harassment. It further states that all workers have the right to safe and healthy working conditions."

The International Labour Organization (ILO) passed a historic agreement in June 2019 that created new international guidelines for stopping and handling workplace harassment and violence. Although representatives from employers' associations, workers' groups, and the Indian government all voted in support of the convention, India has not yet ratified the agreement.

The treaty lays out the minimal requirements for governments to stop and shield citizens from workplace violence. This entails establishing strong national legislation against workplace harassment and violence as well as implementing an integrated, inclusive, and gender-responsive approach. The treaty mandates preventative actions, such as awareness campaigns and targeted support for industries where harassment and violence are more common. Enforcement measures like inspections and investigations are also necessary, as are victim remedies like complaint procedures, whistleblower rights, and recompense.

Recommendations of the Verma Commission Regarding Legal Weaknesses

A three-person panel led by Jagdish Sharan Verma, a former chief judge of the Supreme Court, presented a thorough report in January 2013 outlining potential changes to the criminal code that would have accelerated the prosecution of sexual attacks on women and stiffened their penalties. The committee was established in the wake of massive demonstrations in response to the December 2012 gang rape and killing of Jyoti Singh Pandey, a 23-year-old student, in Delhi. The committee received over 70,000 answers to its request for opinions and recommendations from civil society organizations.

?

In its report, the committee also examined the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012, which was approved by the Lok Sabha, the lower house of parliament, in September 2012. The committee found that the bill was "read as a whole, unsatisfactory" and did not sufficiently uphold the principles of the Supreme Court's decision in Vishaka.[21] A month following the committee's report, the Rajya Sabha, the upper house of parliament, nevertheless, approved the law disregarding all the commission's recommendations. The law becomes operative in December of 2013.

?

As "the in-house dealing of all grievances would dissuade women from filing complaints and may promote a culture of suppression of legitimate complaints in order to avoid the concerned establishment falling into disrepute," the committee's main criticism of the Internal Committee system was that it was counterproductive. Rather, it suggested creating a distinct Employment Tribunal to hear and decide on all claims of sexual harassment.

?

After seven years, a substantial body of information has come to validate the committee's concerns over an inadequate reporting procedure. "All the experience with the POSH Act tells us that the Verma Committee may have been correct to criticize the law and call for tribunals," Mrinal Satish, a member of the research team that supported the committee and a law professor at National Law University in Delhi, said.[25] Senior counsel Vrinda Grover objected to the clause that replaced the old Vishaka rules and gave the employer the authority to designate members of the Internal Committee. She called it a "huge setback," since it "presumes that the man at the top is a good man by nature." It can't be a nomination procedure.

?Here are five frequently asked questions (FAQs) related to the POSH Act:

1. Who does the POSH Act protect? The Act protects all employees, including women in both public and private sectors, encompassing fields like healthcare, education, sports, and government institutions. It also covers those in the unorganized sector, including domestic workers, and applies to any location visited by an employee during work, including transportation.
2. What constitutes sexual harassment under the POSH Act? Sexual harassment includes unwanted physical, verbal, or non-verbal behaviors of a sexual nature, demands for sexual favors, sexually suggestive statements, physical contact, and the presentation of pornographic material. Any direct or implied behavior falling within these categories is considered sexual harassment.
3. How are complaints of sexual harassment handled under the Act? Employers are required to form Internal Committees (IC) or designate representatives in the informal sector to receive complaints, investigate, and take appropriate action against offenders. These committees are tasked with resolving complaints promptly, offering redressal, and can recommend actions ranging from formal apologies to termination of employment.
4. What if my employer doesn't have an Internal Committee (IC)? In cases where an employer doesn't have an IC, a Local Committee (LC) is formed by the government in the respective district or block level. This committee handles complaints against the employer or for women employed in the informal sector.
5. What are the challenges in implementing the POSH Act effectively? Implementation hurdles include ambiguity in reporting procedures, reluctance of victims to come forward due to lack of faith in the process or unsupportive work environments, failure to establish Internal Complaints Committees in many organizations, and concerns about hurried investigations affecting fairness and credibility.

CONCLUSION

The Protection of Women from Sexual Harassment (PoSH) Act represents a pivotal step toward fostering safe and respectful work environments for women across various sectors in India. However, the Act's effectiveness is hindered by critical gaps between legislation and implementation. Challenges such as ambiguity in reporting, reluctance to report cases, inadequate establishment of Internal Complaints Committees (ICCs), and concerns about investigation procedures undermine its efficacy.

To truly harness the Act's potential in safeguarding women, a concerted effort is needed. This entails fostering a culture of zero tolerance for harassment, holding employers accountable, raising awareness effectively, and providing ample resources to support victims. While recent directives by the Supreme Court mark a positive shift toward addressing these concerns, a comprehensive overhaul of the implementation strategy remains imperative.

The promise of the POSH Act can only be realized through unified action, ensuring a robust bridge between the law's provisions and its practical application. Closing this gap demands unwavering commitment and collaborative efforts to create environments where women feel safe, empowered, and respected in every workplace across the nation. It's in this coordinated commitment that the Act's true potential to protect and empower women from sexual harassment at work can be fully realized.