POSH, the law against sexual harassment in India?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013, defining sexual harassment, laying down the procedures for a complaint and inquiry, and the action to be taken.

The law against sexual harassment

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013. It defined sexual harassment, lay down the procedures for a complaint and inquiry, and the action to be taken. It broadened the Vishaka guidelines, which were already in place.

The Vishaka guidelines were laid down by the Supreme Court in a judgment in 1997. This was in a case filed by women’s rights groups, one of which was Vishaka. They had filed public interest litigation over the alleged gang rape of Bhanwari Devi, a social worker from Rajasthan. In 1992, she had prevented the marriage of a one-year-old girl, leading to the alleged gang rape in an act of revenge.

Guidelines and the law

The Visakha guidelines, which were legally binding, defined sexual harassment and imposed three key obligations on institutions — prohibition, prevention, and redress. The Supreme Court directed that they should establish a Complaints Committee, which would look into matters of sexual harassment of women at the workplace.

The 2013 Act broadened these guidelines.

It mandated that every employer must constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees. It lay down procedures and defined various aspects of sexual harassment, including the aggrieved victim, who could be a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”.

This meant that the rights of all women working or visiting any workplace, in any capacity, were protected under the Act.

Definition of sexual harassment

Under the 2013 law, sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:

* Physical contact and advances

* A demand or request for sexual favours

* Sexually coloured remarks

* Showing pornography

* Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The Ministry of Women & Child Development has published a Handbook on Sexual Harassment of Women at Workplace with more detailed instances of behaviour that constitutes sexual harassment at the workplace. These include, broadly:

* Sexually suggestive remarks or innuendos; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life

* Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails

* Intimidation, threats, blackmail around sexual favours; also, threats, intimidation or retaliation against an employee who speaks up about these

* Unwelcome social invitations with sexual overtones, commonly seen as flirting

* Unwelcome sexual advances.

The Handbook says “unwelcome behaviour” is experienced when the victim feels bad or powerless; it causes anger/sadness or negative self-esteem. It adds unwelcome behaviour is one which is “illegal, demeaning, invading, one-sided and power based”.

Additionally, the Act mentions five circumstances that amount to sexual harassment — implied or explicit promise of preferential treatment in her employment; implied or explicit threat of detrimental treatment; implied or explicit threat about her present or future employment status; interference with her work or creating an offensive or hostile work environment; humiliating treatment likely to affect her health or safety.

Procedure for complaint

Technically, it is not compulsory for the aggrieved victim to file a complaint for the ICC to act. The Act says that she “may” do so — and if she cannot, any member of the ICC “shall” render “all reasonable assistance” to her to complain in writing. If the woman cannot complain because of “physical or mental incapacity or death or otherwise”, her legal heir may do so.

Under the Act, the complaint must be made “within three months from the date of the incident”. However, the ICC can “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”.

The ICC “may”, before the inquiry, and “at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation” — provided that “no monetary settlement shall be made as a basis of conciliation”.

The ICC may either forward the victim’s complaint to the police, or it can start an inquiry that has to be completed within 90 days. The ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath and requiring the discovery and production of documents.

When the inquiry is completed, the ICC must provide a report of its findings to the employer within 10 days. The report is also made available to both parties.

The identity of the woman, respondent, witness, or any information on the inquiry, recommendation and action taken, the Act states, should not be made public.

After the ICC report

If the allegations of sexual harassment are proved, the ICC recommends that the employer act “in accordance with the provisions of the service rules” of the company. These may vary from company to company. It also recommends that the company deduct from the salary of the person found guilty, “as it may consider appropriate”.

Compensation is determined based on five aspects: suffering and emotional distress caused to the woman; loss in career opportunity; her medical expenses; income and financial status of the respondent; and the feasibility of such payment.

After the recommendations, the aggrieved woman or the respondent can appeal in court within 90 days

Section 14 of the Act deals with punishment for false or malicious complaints and false evidence. In such a case, the ICC “may recommend” to the employer that it take action against the woman or the person who has made the complaint, in “accordance with the provisions of the service rules”.

The Act, however, makes it clear that action cannot be taken for “mere inability” to “substantiate the complaint or provide adequate proof”.