The Sexual-harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ie; the PoSH Act has been enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints of sexual harassment.
Since the uprise of #MeToo as a movement, several new situations have arisen, some of which were not envisaged at the time of enforcing the PoSH Act.
The Act extends to the whole of India and intends to protect women from sexual harassment at the workplace. PoSH Law applies to both organized and unorganized sectors.
Committees required under PoSH Act?
- Internal Complaints Committee (ICC);
- Local Complaints Committee
What is the ICC?
ICC is an internal complaints committee of a workplace to receive complains and redress complaints of sexual harassment. Every employer is obliged to constitute an ICC through a written order.
The ICC is composed of the following members:
|1.||Presiding Officer||Women working at senior level as an employee; if not available then nominated from another office/units/ department/ workplace of the same employer||The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the
date of their nomination as may be specified by the employer.
There is a lack of clarity in case of a situation in which the tenure of the IC members has expired during an ongoing investigation of a matter
|2.||Two Members (minimum)||From amongst employees committed to the cause of women/ having legal knowledge/experience in social work|
|3.||Member (External Member)||From amongst NGO/associations committed to the cause of women or a person familiar with the issue of Sexual Harassment|
The law also states that at least half of the total Members of the IC should be women. Where the office or administrative units of a workplace are located in different places, division or sub-division, an ICC has to be set up at every administrative unit and office.
External member of ICC:
The ICC should include an external member from amongst NGO/associations committed to the cause of women or a person familiar with the issue of Sexual Harassment. As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 person familiar with the issue of Sexual Harassment may include any of the following:
- a social worker with at least five years’ experience in the field of social work which leads to the creation of societal conditions favorable towards empowerment of women and in particular in addressing workplace sexual harassment;
- A person who is familiar with labor, service, civil or criminal law.
The eligibility criteria for an external member of an ICC was analyzed by the High Court of Delhi in Ruchika Singh Chhabra v. Air France India and Another (2018 LLR 697). The High Court observed that in the given case, the external member appointed on the ICC by the employer was neither a member of a non-governmental organization or association committed to the cause of women nor could he establish his prior experience in dealing with cases of sexual harassment. While it was argued that the candidate was a lawyer with experience in labor matters, the High Court held that such background in law would suffice to meet the criteria for appointment of an external member of the Local Complaints Committee, but not for an external member of an ICC.
The Member appointed from amongst non-government organizations shall be entitled to an allowance of two hundred rupees per day for holding the proceedings of the Internal Committee and also the reimbursement of travel cost.
Responsibilities of ICC:
The ICC shall:
- Provide assistance if an employee or a student chooses to file a complaint with the police;
- Provide mechanisms of dispute redressal and dialogue to anticipate and address issues through just and fair conciliation without undermining complainant’s rights, and minimize the need for purely punitive approaches that lead to further resentment, alienation or violence;
- Protect the safety of the complainant by not divulging the person’s identity, and provide the mandatory relief by way of sanctioned leave or relaxation of attendance requirement or transfer to another department or supervisor as required during the pendency of the complaint, or also provide for the transfer of the offender;
- Ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment; and
- Ensure the prohibition of retaliation or adverse action against a covered individual because the employee or the student is engaged in protected activity.
Time Limit for Making Complaint:
The PoSH Act came into effect in December 2013. Some of the postings of the #MeToo era related to workplace incidents occurring prior to that period, would not get protected under the PoSH Act.
An aggrieved person is required to submit a written complaint along with supporting documents and names and addresses of the witnesses if any to the ICC within three months from the date of the incident and in case of a series of incidents within a period of three months from the date of the last incident.
Friends, relatives, colleagues, co-students, psychologists or any other associate of the victim may file the complaint in situations where the aggrieved person is unable to make a complaint on account of physical or mental incapacity or death.
Manner to Organise workshops:
As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, every employer shall:
- formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention, and redressal of sexual harassment at the workplace intended to promote gender-sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women;
- carry out orientation programs and seminars for the Members of the Internal Committee;
- carry out employees awareness programs and create a forum for dialogues which may involve Panchayat Raj Institutions, Gram Sabha, women’s groups, mothers’ committee, adolescent groups, urban local bodies and any other body as may be considered necessary;
- conduct capacity building and skill-building programs of all the Members of the Internal Committee;
- declare the names and contact details of all the Members of the Internal Committee;
- Use modules developed by the State Governments to conduct workshops and awareness programs for sensitizing the employees with the provisions of the Act.
Hence, the mere formulation of anti-sexual harassment policy and constitution of an internal complaints committee cannot be said to be the compliance of the Act, as there are several other obligations for complying the law which includes training, putting up posters, organizing seminars, etc.
Penalty for non-compliance:
In case any sexual harassment complaint has been proved, the criteria for determining a monetary penalty under the PoSH Act remains vague and unclear. In the absence of clarity, the IC would find it difficult to arrive at a precise monetary amount to be paid by the respondent to the complainant.
Under the provisions of the Act, for non- compliance with any provisions of the Act or rules the management shall face a penalty of INR 50,000 for their first violation and double the sum and cancellation of business license for subsequent ones.
In the judgment of Mrs. Arvinder Bagga & Ors. v. Local Complaints Committee, District Indore & Ors., W.P. No. 22314 of 2017, the Indore Bench of the Madhya Pradesh High Court has slapped a penalty of Rs. 50,000 on Medanta Hospital, Indore for not having the Internal Complaints Committee (ICC) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The court has also directed the hospital to pay a compensation of INR 25 Lakhs to the complainant for failing to address her complaint of sexual harassment.
PoSH Act prevents/safeguards women from sexual harassment, however, the same should not be misused by women for personal benefits.
In a judgment dated 9th July 2019, the Delhi High Court in the case of Anita Suresh v. Union of India &Ors., in W.P. (C) 5114/2015 upheld the misuse of rights provided to women under this law and slapped a hefty fine of INR 50,000 on the complainant for filing a frivolous sexual harassment claim against her senior.
Through, this judgment it is evident that the ICC while conducting the inquiry into the complaint should follow the principle of natural justice. It should serve justice to the innocent, regardless of a complainant or respondent.
Though this act looks great on a paper what it lacks the most out of the other loopholes is the “education and awareness.” The need of the hour is not just Compliance in Letter but Compliance in both Letter and Spirit.