The judgment in Vishaka & Ors vs State of Rajasthan of 1997 first laid the foundation for guidelines relating to sexual harassment at workplaces by the Supreme Court of India. 16 years later, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (‘POSH Act’) was enacted. This Act elaborates on and criminalises sexual harassment at workplaces and puts in place a comprehensive redressal mechanism.
How is sexual harassment defined under this Act?
Sexual harassment can be any of the following acts or behaviours or a combination of them which are unwelcome, whether done or implied:
- physical contact and advances;
- a demand or request for sexual favours;
- making sexually coloured remarks;
- showing pornography without being asked to;
- any other action of a sexual nature whether by way of physical or spoken or unspoken conduct.
The following circumstances, among other circumstances, in relation to any act or behaviour of sexual harassment may amount to sexual harassment, implied or explicit:
- promise of preferential treatment in her employment;
- threat of detrimental treatment in her employment;
- threat about her present or future employment status;
- interference with her work or creating an intimidating or offensive or hostile work environment for her;
- humiliating treatment likely to affect her health or safety.
The definition of sexual harassment is comprehensive and covers verbal and non-verbal forms of sexual harassment.
To whom do the provisions of the Act apply?
The provisions of this Act applies to all working women, under the organised and unorganised sector. The law is even applicable to a woman who was at a workplace at the time of harassment, even if it isn’t necessarily her workplace. The Act is equally applicable to any women domestic help and to unpaid interns or volunteers. Any location where a woman is engaged for some form of work is considered a workplace, from residential homes to private or government offices.
What redressal mechanism is provided for?
A comprehensive redressal mechanism is provided for under the Act through the following bodies:
- Internal Complaints Committee (‘ICC’)
Every workplace with more than 10 workers needs to have an Internal Complaints Committee for redressal of cases of sexual harassment, even if there hasn’t yet been a case of sexual harassment at that workplace.
The ICC must comprise of 4 members, one member who is to act as Presiding Officer and is a senior female employee of the company, two other employees from within the company with some social/legal background and another member from an NGO which works in a field related to women’s rights and is familiar with issues of sexual harassment: half of these i.e. 2 of 4 members must be women.
- Local Complaints Committee
A District Officer, appointed in each district by the State Government then has to set up a
Local Complaints Committee for receiving and hearing complaints relating to workplace sexual harassment in cases where the said workplace has less than 10 workers and no Internal Complaints Committee.
What are some rules to keep in mind regarding the redressal process?
- All complaints need to be made in writing, the Committee is to ensure that the complaint is made accurately if the aggrieved woman is illiterate.
- Someone else may also be allowed to make a complaint on behalf of the aggrieved woman in certain cases. The aggrieved woman also has the option of settling the matter with the help of the ICC through conciliation, however, the end result here cannot be monetary compensation.
- The inquiry may continue for up to 90 days and the employer must implement the recommendations of the Committee within 60 days and submit a report on how the recommendations were implemented, to the ICC.
- All parties to the complaint including witnesses can appeal against the decision of the ICC.
Is there any time limit to the complaint being made?
The complaint should generally be made by the aggrieved woman within 3 months of the incident or 3 months from the last incident where there is recurring sexual harassment. This time limit can be extended if it is felt that the complaint could not have been made earlier.
What rights does the woman have while the enquiry is going on?
The aggrieved woman cannot be asked to leave the job during the process of the enquiry. The woman has the right to ask for a transfer, either for herself or for the alleged offender, or for 3 months of leave, this leave is in addition to any other pending leave she may have. The ICC can also suggest other measures for effective redressal of the complaint.
One can always file a criminal complaint instead of approaching the Internal Complaints Committee or Local Complaints Committee. This Act and its provisions are in addition to other laws relating to sexual harassment and do not overrule them. There are also provisions under this Act against the party making a false complaint.
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