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Introduction
The problem relating to Sexual harassment at the workplace is increasingly coming out of the closet, as a greater number of women are stepping out of their house to work.In India, the Supreme Court in the case of Vishaka & Ors. vs State of Rajasthan & Ors.[1]Held that sexual harassment at workplace is a violation of constitutional rights of the women & an effective alternative mechanism is needed to prevent the violation of these fundamental rights and to fill the legislative vacuumed & supreme court has also given down some mandatory guidelines for employer to follow which popularly known as “Vishaka guidelines”.
After 16 years of this judgement, India’s first legislation specifically addressing the problem of sexual harassment at workplace was enacted by the ministry of women and child development, by a notification dated 9 December 2013, passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”).
Objective of the Act
The objective of this act is to provide, protection & prevention from sexual harassment at workplace& to cinch effective redressal of their complaint against sexual harassment. While the aim of this act is to ensure a safe, secure & dignified working environment for women, but the appropriate implementation of this act remains a challenge.
Sexual Harassment of Women at Workplace (Prevention, Protection &Redressal) Of POSH Act
Background
The sexual harassment of women at workplace (prevention, protection &redressal) act was enacted after 16 years in pursuance of the Vishaka guidelines given by the Supreme Court in the case of Vishaka &Other v. State of Rajasthan. In the light of above of the above judgement the very first attempt for implementing the law for protection of at workplace were taken by introducing Protection of Women against Sexual Harassment at Workplace Bill, 2007.which was approved by the union cabinet, but the bill never saw the light of the day. And after that December 7, 2012 the Protection of Women against Sexual Harassment at Workplace Bill, 2010 (the “Original Bill”) was introduced in Lok Sabha and in 2012 the bill was amended and reintroduced in the Lok Sabha. On February 23, 2013, the bill was passed by Rajya Sabha and on 23 April 2013 the POSH Act received the president assent and was published in the Gazette of India as Act No. 14 of 2013.and December 09, 2013 The Indian Ministry of Women and Child Development notified December 09, 2013 as the effective date of the POSH Act and the POSH Rules.
By enacting the POSH Act, the government of India has also fulfilled its obligation under the Convention on the Elimination of all Forms of Discrimination against Women (CEADAW) which was adopted by the general assembly of united nation in 1979. And it has been ratified by the Indian government and it provides that protection against sexual harassment is a universal recognized human right. CEADAW had, in January 1992 has adopted the general assembly recommendation no. 19 which recognized the ill effects of sexual harassment at workplace and such practices has to be outlawed because they result in gender discrimination, hostile work environment & undermine the dignity, self-esteem and confidence of female employees.[2]
The POSH Act (Scope and Applicability)
The act is sui generis in many ways first it recognizes to sexual harassment as fundamental violation of women’s right, including their right to live with dignity in any profession, trade, or business.
Jurisdiction: The POSH Act extents to the whole of India.[3]
Aggrieved women
In relation to workplace under POSH Act means, woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment.[4]and the definition does not necessitate that a woman claiming protection under POSH Act has to be an employee, even a client/costumer subjected to sexual harassment can claim under this act. For women to claim protection under POSH Act, the incident must be happened at workplace.
The POSH Act is not a gender-neutral legislation it only protects the right of women and men cannot claim under protection from sexual harassment under this this act.
The POSH Act further stipulates that a woman shall not be subjected to sexual harassment at her workplace. Accordingly, it may be noted that in order for a woman to claim protection under the POSH Act, the incident of sexual harassment should have taken place at the ‘workplace’. The POSH Act protects only women and is not a gender-neutral legislation and protects only women. Therefore, the safeguards under the POSH Act are not applicable to ‘men victims.
Employee
The definition of an ‘employee’ under the POSH Act is fairly wide to cover regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract labourers, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.
Workplace
While the Vishaka Guidelines were confined to the traditional office set-up, recognizing the fact that sexual harassment may not necessarily be limited to the primary place of employment, the POSH Act has introduced the concept of an ‘extended workplace’. As per the POSH Act, ‘workplace’ includes any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment.
Covered bodies
The POSH Act applies to both government body, public and private sector. any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority.[5]it applies to public and private sector organization, non-governmental organizations, organizations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and also applies to a dwelling place or a house.[6]
Sexual Harassment under POSH Act
The POSH Act defines sexual harassment quite widely and it also include ‘quid pro quo’ harassment such as promise of advance in return of sex. In a typical situation of quid pro quo harassment, the respondent being a person in power, pressurizes the woman employee (usually a subordinate) for sexual favors in exchange for advancement in the workplace or threat of adverse employment action.[7]
Sexual harassment includes any one or more of the following unwelcomed acts or behavior namely:
- physical contact and advances; or
- a demand or request for sexual favors; or
- making sexually colored remarks; or
- showing pornography; or
- any other unwelcome physical, verbal, or non-verbal conduct of sexual nature;[8]
The following circumstances, among other circumstances, if they occur or are present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:
- implied or explicit promise of preferential treatment in employment.
- implied or explicit threat of detrimental treatment in employment.
- implied or explicit threat about present or future employment status.
- interference with work or creating an intimidating or offensive or hostile work environment; or
- humiliating treatment likely to affect the lady employee’s health or safety.[9]
Conclusion
The Act ensures that women are protected against sexual harassment at all the workplaces, be it in public or private. This contributes to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplaceimproves women’s participation in work, resulting in their economic empowerment and inclusive growth.
The Act uses a definition of sexual harassment which was laid down by the Supreme Court of India in Vishaka v. State of Rajasthan (1997).[10] Article 19 (1) g of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business. Vishaka v. State of Rajasthan[11] established that actions resulting in a violation of one’s rights to ‘Gender Equality’ and ‘Life and Liberty’ are in fact a violation of the victim’s fundamental right under Article 19 (1) g. The case ruling establishes that sexual harassment violates a woman’s rights in the workplace and is thus not just a matter of personal injury.[12] This case ruling had issued Vishaka guidelines under Article 32 of the Constitution of India. The Supreme Court had made it mandatory that these had to be followed by all originations until a legislative framework on the subject has been drawn-up and enacted. However, the legislative void continued and the Supreme Court in Apparel Export Promotion Council v. A.K Chopra[13] reiterated the law laid down in the Vishaka Judgment. Dr. Medha Kotwal of Aalochana (an NGO) highlighted a number of individual cases of sexual harassment stating that the Vishaka Guidelines were not being effectively implemented. Converting the letter into a writ petition, the Supreme Court took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country. The Supreme Court asserted that in case of a non-compliance or non-adherence of the Vishaka Guidelines, it would be open to the aggrieved persons to approach the respective High Courts.
References:
[2]http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
[3]Section 1 of posh act.
[4]Section 2(i) of posh act.
[5]Section 2(o) of posh act.
[6] Section 2(o) of the Prevention of Workplace Sexual Harassment Act.
[7]http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
[8] Section 2(n) of the Prevention of Workplace Sexual Harassment Act
[9] Section 3(2) of the Prevention of Workplace Sexual Harassment Act
[10]Chakrabarty, Rakhi (4 September 2012) “Sexual harassment at workplace Bill passed”. Times of India. Retrieved 13 September 2012.
[11](1997) 6 SCC 241
[12]Lawyer’s Collective, Sexual harassment of women at workplace bill 2012 passed by Lok Sabha, 6 September 2012.
[13]Apparel Export Promotion Council v. A.K Chopra (1999) 1 SCC 759
