The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Introduction

Women are the second gender on Earth; they contribute to the population up to 3,710,295,643 as per a recent survey^[1] conducted by the UN. But still are way backward than the whole of men across the globe.

For decreasing the gap so formed due to the old ancient psychology of people one needs to be independent which involves being educated, providing services in form of getting employed, and making other backward people do the same once success is attained, on this not one can develop in herself as well as take others along to the path of Success and independence.

But if on the way to success, one gets discriminated against at the place of education?

What if one is not provided with the facility to work at a place? Even if you get the job then the threat of being discriminated against, harassed, or raped keeps hitting the mind.

Will that help one to become independent? Or will simply become an issue or hindrance in self-growth along with others?

With the same perspective in the mind of the framers, The Sexual Harassment of Women at Workplace Act was formed.

If any person is hindered from practicing their basic profession, then it becomes quite essential for a country to procure their duty in order to protect the suffering rights of women.

If a particular gender suffers in a country, then it can become a great sign of underdevelopment at the country level.

Foundation of the Act

For knowing more about the POSH act, we must first have a look at its history and the background of its foundation.

• Vishakha v. State of Rajasthan^[2],[2]1997 is one of the landmark cases under which the initiation of POSH can be found.
• Bhawri Devi was one of the social workers and she was part of the development program and worked for the Women’s development program under which her foundation and she were protecting the rights of women and other children.
• When she got to know that in her village itself there is a child marriage going on she with her team went there to explain to people how wrong it is to marry children at so a younger age and to stop the marriage.
• The men and women there did not listen to what she said. As a result, she went to complain to the police authorities. As a result, the marriage was kept away, not for a longer period of time, the marriage took place a day later but Bhawri Devi had to face more.
• Later some days, Bhawri Devi was brutally raped by five men of the same family in front of her husband, after which she filed a complaint at session court but due to some reasons, she did not get justice. She appealed at the Higher court and Supreme court but did not get any reasonable response.
• Due to the heinous crime committed against her and the injustice that occurred to her, a large number of Women associations who worked for the justice of such women formed an association and altogether filed a petition at the Supreme court^[3].
• The demands of the Vishakha association^[4] were simple, they wanted special rules for sexual harassment of women to be enacted specifically for workplaces.

After this Vishakha Guidelines were formed which became a prominent source of the said act.

The big revolutionary Nirbhaya case, 2012^[5], after the famous Delhi rape case^[6], Sexual harassment and other related acts faced a massive transformation, being the rarest of rare crimes ever the Judiciary to the executives and even the parliament faced a huge shock, due to which all the laws and acts related to crimes relating to woman changed.

Looking upon the facts of the Nirbhaya case^[7], the case that shook not only Delhi but the entire nation.

• On a wintery night in Delhi, Nirbhaya along with her friend was returning home from a Movie night, they took an auto and then a bus to reach their homes.
• On the way there, on the bus there were four people apart from her and her friend, one among them was a minor and one was the driver and a conductor and another extra man was their friend, it was quite undefined what happened that they started having arguments.
• The conductor beat the guy, and Nirbhaya reached out to help him but had to face the consequences which changed her life as well as the history of India.
• She was taken to the back of the bus and her clothes were torn by three of the people she was raped by three of them, later when she shouted for help, the driver came to the back seat, beat her with an iron road, and worst of all inserted the road through her private parts to the intestines.
• They were both thrown on the road naked, Nirbhaya bleeding from her body, but still alive due to the cold weather. And then when the authorities were called, she was sent to a government hospital from where she was referred and was then taken to Singapore where she died.
• The case shook the nation across and women felt unsafe, apart from that it became very much essential for the government to form strict regulations to avoid such heart-threatening crimes against women.

The Act of 2013

The POSH act [8]was made to regulate the crimes that are committed against the woman in their workplace, it’s preamble states that-

• The extent of the Act is to the whole of India including Jammu & Kashmir after the exclusion of Article 370.
• If a Woman is sexually harassed at a workplace her three fundamental Rights get infringed, Articles 14 and 15 under which she has Equality before the law as well as Prohibition of discrimination against sex, gender & religion since she is facing all the issues and harassment against her due to her gender, she is hindered from working, as a result, sexual harassment should not only be avoided but should be eliminated.
• Under Article 21 every person is provided the right to practice any profession, but due to sexual harassment women keep away from practicing their professions which makes it more convincing to eliminate sexual harassment.
• Apart from that, the Government of India signed a convention for the protection of Women in 1993 with the UN as a result of which this act was essential.

As per of the said act, the definition of Aggrieved woman is defined which says, any woman who claims to be the victim of Sexual harassment at workplace comes under term “Aggrieved woman”

The workplace can either be a private workplace or a government place, even if a woman goes to work at some place such as a house, or goes out of office for some official reason then she should also be considered an Aggrieved woman.

Under term sexual harassment[9] is defined as-

• If any person without consent of a woman physically touches her or advances, means trying to molest her or rape her that should be sexual harassment.
• If any person asks for sexual favors for the consideration of Promotion of Increment then that should also come under sexual harassment.
• If any person mentally harasses any woman for the denial of prior sexual favors asked by him that should also be included.
• Showing pornography and making sexual remarks are also included in sexual harassment.

Under term workplace is defined which refers as under-

• A workplace can be a government office or a private office.
• If a woman goes out of the office due to any work purpose that should also be included.
• If there is any car provided to a woman by the office that should also be included under the term workplace.
• If a woman goes to a house as a maid, house helper & cook that house should also be included as her workplace.
• Being in an NGO if a woman goes out for any purpose should also be included.

Broadly, we can say that any place where a woman is going to work or to earn money to carry out her livelihood that place should be considered a workplace.

Under of the said act, the prevention of sexual harassment, there are certain circumstances defined-

• If a person says that preferential treatment will be provided if a woman keeps sexual relations with the man then this should be put under the category of sexual harassment.
• If a person causes any verbal threat to a woman saying her life cycle will be interrupted by him if sexual favors are not provided then this should be put under the category of sexual harassment.
• If a starts to humiliate a woman due to the failure of sexual favors asked then that should also fall under the category of sexual harassment.

Section of the said act, defined the requirement of a special committee[10] for the sexual harassment victim.

• If an organization has more than 10 employees then there should be a special committee for women to redress the issues relating to the same regard.
• If the employees are less than 10 then there is no need for such an organization, women can take their concerns to the committee formed at the district level.
• It is the duty of every employer to form such a committee.

Constitution of the committee[11]

There should be four members on the committee-

The first should be, a Chairman or Presiding officer, who should be the senior in the organization, two members should be either legal or should be knowledgeable enough to work in the same regard. The last member should be a part of an NGO that is working for the welfare of such people. At least, two of the members should be women of the committee.

Whom to complain if there is no such association?

If a woman is a maid or works at a small company or is simply from an unorganized sector then where should one file a complaint?

Under section 6 of the said act, Local committees are to be formed on a district basis and all the women can file complaints here. If a woman resides away from the district committee then it is also under the provision that a Nodal officer has to be assigned, and the case will be transferred to the Local committee and the investigation will take place

Under section 6 of the said act, a Complaint of sexual harassment has to be made, woman victim of sexual harassment should give a written complaint to the internal committee or the Local committee within the limitation of 3 months.

If in case an aggrieved woman complains after 3 months after the incident that took place with her, then her case should not be taken, but if she gives a reasonable excuse for the delay then her case may be given a benefit of doubt.

Under section 10 of the said act, Conciliation[12] can take place if a woman does not want to take the case to the court than on the written application, Conciliation can take place, the conciliation should not include money exchange. It means that the respondent asks for forgiveness, and so is provided by the Accused woman.

Under section 11 of the said act, Inquiry into the Complaint will take place that will be conducted by the committee and if the committee finds out that the case is true and not malicious then the committee within 7 days will file a complaint to the police Under 509 of Indian penal code.

Under section 12 of the said act, During the pendency of the case or at the time of Internal committee investigation, if the woman feels that she cannot attend the office due to the presence of the accused person here, then she can Ask internal committee to-

• Either shift the office of the accused person.
• Or either shift the office of the Aggrieved Woman herself.
• Or to be granted leave for the time being.

In that case, the Internal committee will forward the request to the employer for further do.

Under section 14 of the said act, Punishment for False or malicious complaint and False evidence, if a woman maliciously files a false complaint against any employee under this act, and after investigation, it is found that the case filed by her was fraudulent then her case should be dismissed and the same should be communicated to the employer or the district officer to take action against the woman under section 9 or the as per the provision of Service rules of the organization.

But in case there is no evidence found, against the accused, woman but the said facts had happened with the woman then there any further procedure will not take place but no case against the woman will be filed at the police station.

Under section 19 of the said act, Duties of Employer[13], one should provide a safer environment to the woman so that she won’t face such a crucial situation at her workplace. The employer should display at a prominent place about Sexual Harassment and should make people aware of the consequences of such an act apart from that, the Internal committee should be provided with the basic necessities that are required to run a department. Employers should also assist the aggrieved woman in filing such complaints and should help her to get justice.

Conclusion

Being a part of civilized society, it becomes shameful that women nowadays have to face such heart-shattering encounters, even though social evils cannot be completely eliminated but still can be avoided as we read the said act above it was clearly evident that the government took all the required steps people are educated but the minuscule thought of them has to broaden which can only be done by spreading awareness. So, one should be educated but on the other hand, he should educate others so that this social evil that hinders the growth of a whole gender is eliminated.

References

^[1]Are There More Men or Women in the World? – WorldAtlas

^[2] Vishakha and others v State of Rajasthan – Wikipedia

^[3] Vishakha Gupta vs State Of Rajasthan on 9 April, 2021 (indiankanoon.org)

^[4]Summary Of Vishakha Case (legalraj.com)

^[5] Nirbhaya Gang Rape:A Case Study (ipleaders.in)

^[6] 2012 Delhi gang rape and murder – Wikipedia

^[7] What is Nirbhaya case? | India News – Times of India (indiatimes.com)

[8] POSH act, 2013

[9] POSH Act (Protection of women from Sexual Harassment Act, 2013) – ClearIAS

[10] POSH Committee – NYAY TANTRA

[11] Ibid

[12] Understanding Conciliation: A Critical Feature of the POSH Law | SHLC – Sexual Harassment Law Compliance

[13] Posh act | Duties of an employer | Interweave

This article has been submitted by Shivani Sharma, a student at NVISMT, Bhopal.