Source: The Hindu 

Introduction 

The proportion of women in leading corporate firms has significantly increased over time. However, despite this progress, the attrition rate among women remains higher compared to men. Women leave organizations due to various factors such as societal expectations post-marriage, which are typically not faced by men. Additionally, workplace harassment, whether verbal, sexual, or otherwise, also contributes to women leaving their jobs. Instances of such harassment, as reported under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), show a concerning trend, with reported cases rising again after a pandemic-related decline. 

 What is POSH Act 2013? 

• The POSH Act is a legislation made by the Indian government in 2013 to deal with sexual harassment that women face at work.  
• It's designed to make sure workplaces are safe for women and to protect them from sexual harassment.  
• According to the Act, sexual harassment can involve things like unwanted physical contact or advances, asking for sexual favors, making inappropriate sexual comments, showing pornography, or any other unwelcome behavior of a sexual nature, whether it's spoken, written, or even gestures.  
• Sexual Harassment at the workplace is dealt by the legislative enactment – The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, (POSH ACT). 
• Where the victim of Sexual Offence is a minor the legislation that comes into play is The Protection of Children from Sexual Offences Act, 2012 (POCSO). 
• The act sets out obligations for the employer, including the requirement to recognize sexual harassment as “misconduct” under service rules and to set up an internal complaints committee (ICC) in workplaces with 10 or more workers. 

What was the Background of the Act? 

• The Supreme Court in a landmark judgment in the Vishakha and others v State of Rajasthan 1997 case gave ‘Vishakha guidelines’. 
• These guidelines formed the basis for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. 
• The SC also drew its strength from several provisions of the Constitution including Article 15 (against discrimination on grounds only of religion, race, caste, sex, and place of birth), also drawing from relevant International Conventions and norms such as the General Recommendations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993. 

What are the Vishakha Guidelines? 

• In the case of Vishakha and others v. State of Rajasthan (1997), the Supreme Court laid down Vishakha guidelines which are to be followed by establishments in dealing with complaints about sexual harassment. 
• The guidelines passed in this case are as follows: 
  • It is the duty of every employer to deliver a sense of security to every women employee. 
  • Government should make strict laws and regulations to prohibit sexual harassment. 
  • Any act of such nature should result in disciplinary actions and criminal proceedings should also be brought against the wrong doer. 
  • The organization should have a well-set-up complaint mechanism for the redressal of the complaints made by the victim and should be subjected to a reasonable time. 
  • This complaint mechanism should be in the form of complaint committee which need to be headed by a women member and at least 50% of the committee members should be women so that victims do not feel ashamed while communicating their problems. 
  • This complaint committee should also have a third-party involvement in the form of an NGO or other body which is familiar with this issue. 
  • There is a need for transparency in the functioning of this committee and for that there is a requirement for the submission of an annual report to the government. 
  • Issues relating to sexual harassment should not be a taboo in the workers meeting and should be discussed positively. 
  • It is the duty of the organization to aware the female employees about their rights by regularly informing them about the new guidelines issued and legislation passed. 
  • The employer or the person in charge is duty biased to take the necessary and reasonable steps to provide support to the victim of sexual harassment takes place due to the act or omission of the third party. 
  • These guidelines are not limited only to government employers and should also be followed by employers in the private sectors. 
  • The case of Medha Kotwal Lele & Ors. v. Union of India & Ors (2012) helped in the implementation of the guidelines formulated in Vishakha’s case by issuing notices to all states and the union territories to impart the necessary steps. 

What are the Important Provisions in POSH ACT 2013? 

• Section 2(n) of this Act defines the term Sexual Harassment. It states that Sexual Harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) 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 a sexual nature. 
• Section 3(2) of the Act mentions the circumstances which lead to sexual harassment. As per the section the following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment - 
  • implied or explicit promise of preferential treatment in her employment; or 
  • implied or explicit threat of detrimental treatment in her employment; or 
  • implied or explicit threat about her present or future employment status; or 
  • interference with her work or creating an intimidating or offensive or hostile work environment for her; or 
  • humiliating treatment likely to affect her health or safety. 
• Sections 4 and 6 of the said legislation provide for the Constitution of Internal Complaints Committee and Local Complaints Committee respectively. 
• Section 9 of the Act provides for the process of Complaint of sexual harassment Whereas Section 11 deals with the injury into complaint. 
• As per Section 10, the Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation. 
• Section 14 deals with punishment for false or malicious complaint and false evidence 
• As per Section 26, any sort of non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000 and repeated violations may lead to higher penalties and cancellation of licence. 

What are the Duties of Employer under POSH Act 2013? 

• Section 19 deals with the duties of the employer. It states that every employer shall: 
  • Provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace;  
  • Display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;  
  • Organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;  
  • Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;  
  • Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;  
  • Make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9;  
  • Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;  
  • Cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place 
  • Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;  
  • Monitor the timely submission of reports by the Internal Committee.  

Conclusion

POSH Act of 2013 aims to safeguard women from workplace sexual harassment through clear guidelines and obligations for employers, its effective implementation remains a challenge. Recent observations by the Supreme Court highlight significant lapses in compliance, including inadequate Internal Complaints Committees. Addressing these issues is crucial to ensuring a safe and supportive work environment for women across India.