POSH Act and its Implementation to Prevent Workplace Sexual Harassment

POSH Act and its Implementation to Prevent Workplace Sexual Harassment

Rubee Das

The post-modern life has ushered in radical changes in the lives of women. The recent #Metoo movement reflects the widespread presence of workplace sexual harassment everywhere. Workplace sexual harassment has assumed greater dimensions in India with the large influx of women in the mainstream workforce. Given the rigid patriarchal nature of Indian society, the number of women needing redress from this menace has been increasing.

Sexual harassment constitutes a gross violation of women's fundamental right to equality and right to life. The Constitution of India ensures "equality of status and opportunity" for all its citizens. 'A safe workplace is, therefore, a woman's legal right.' (www.wcd.nic.in) Workplace sexual harassment (SH) creates an insecure and hostile working environment for women. It impedes their ability to deliver apart from adversely affecting their social and economic growth by pushing them through physical and emotional suffering. India's first legislation specifically addressing the issue of workplace sexual harassment, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) has been in force since 2013. It's key features are prevention, prohibition and redress of sexual harassment which applies to sexual harassment faced only by women because SH at the workplace is a form of discrimination against women. POSH Act is a gender-specific legislation taken to address unequal gender relations at workplaces.

The statute defines 'aggrieved woman', 'workplace', 'employer' 'what amounts to sexual harassment', 'employee' redress and consequences of non-compliance etc. A 'workplace' covers both organised and un-organised sectors - 'any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.' (www.wcd.nic.in)

It obligates all employers to constitute an Internal Complaint Committee (ICC) to hear/redress grievances pertaining to sexual harassment. In big organizations, ICC must be established at each office, branch or administrative unit, if such units engage ten or more employees. ICCs are required even establishments without woman employee, as women vendors/ visitors must also have the option to complain. ICC consists of members from amongst employees and an external member. The external member should be from an NGO or a person familiar with the issues relating to SH. Presence of an external member ensures reasonable hearing and infuses confidence in the complainant. Fifty per cent of members should be women and their tenure is three years.

Local Complaint Committees (LCCs) are constituted at the district or lower level by the district authorities to investigate/redress complaints of SH from the unorganized sector, from establishments having less than ten employees or if the complaint is against the employer. Domestic workers or where the complaint is against the employer or a third party who is not an employee should go to LCC. An employer failing to form an ICC may be fined and also lose license or registration to operate. The ICC/ LCCs should submit statutory reports at regular intervals.

The Act accepts SH as "subjective experience". 'Given the largely intangible nature of the workplace sexual harassment, there are a range of complexities involved in responding effectively to such complaints.' (Sarpotdar, A. What it takes to implement a law on sexual harassment at workplace in India, Oct.18, 2014:LiveLaw.in) Hence, having external members on the Complaints Committees is being emphasized as such expertise will greatly benefit those in fair and informed handling of complaints to lead to sound outcomes.' (Sarpotdar, A. Oct.18, 2014:LiveLaw.in)

Besides ensuring time bound redressal of grievances through ICC, the Act also casts certain other obligations upon the employers like- providing gender sensitive and safe workplace, formulating and disseminating an internal policy for prohibition, prevention and redressal of SH, sensitizing employees on regular intervals on the issues and its complications, organizing orientation programmes for Complaint Committees etc. The designated Complaint Committee members must have the competency and training to handle such a complaint.

The findings of a recent study conducted in two districts of Assam reveal a dismal picture of compliance of POSH Act. ICC is the principal mechanism to ensure safe working environment for women but most of the government offices have complied with the Act half-heartedly violating the spirit of it. Many offices are yet to set up ICC, some have ICCs in papers and some ICCs are formed defying the norms. Private sectors' compliance status is pathetic. Institutions of higher education, central government offices and PSUs and organizations with a national presence have their own redressal mechanism in place. But, an aggrieved woman expressed her disappointment for the delay in redressal as the ICC of her organization is centrally located in a distant city. 'Mechanisms such as women's cell in colleges, officer's wive's associations or any committee in government departments, women's wing in student unions, HR committee in a bank, other facilities in different work sectors do not have the authority to register sexual harassment complaints. All sexual harassment of women in workplace complaints must be filed with ICC/LCC.' (A guide for working women 2014: www.northeastnetwork.org)

ICC has a vital role to play in the implementation of the POSH Act as it ensures the efficient implementation of SH policy.

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