Note4Students
From UPSC perspective, the following things are important :
Prelims level: SHW Act
Mains level: Women saftet at workplace
Central Idea
- The Supreme Court of India has identified “serious lapses” and “uncertainty” in the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act).
- It has directed the Union, States, and UTs to verify the formation of Internal Complaint Committees (ICCs) in government bodies and ensure strict adherence to the Act’s composition requirements.
What is the POSH Act?
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013.
- It defined sexual harassment, lay down the procedures for a complaint and inquiry, and the action to be taken.
- It broadened the Vishakha Guidelines, which were already in place.
What are Vishakha Guidelines?
- The Vishakha guidelines were laid down by the Supreme Court in a judgment in 1997. This was in a case filed by women’s rights groups, one of which was Vishakha.
- In 1992, she had prevented the marriage of a one-year-old girl, leading to the alleged gangrape in an act of revenge.
Guidelines and the law
- The Vishakha guidelines, which were legally binding, defined sexual harassment and imposed three key obligations on institutions :
- Prohibition
- Prevention
- Redress
- The Supreme Court directed that they should establish a Complaints Committee, which would look into matters of sexual harassment of women at the workplace.
The POSH Act broadened these guidelines:
- It mandated that every employer must constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees.
- It lay down procedures and defined various aspects of sexual harassment, including the aggrieved victim, who could be a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”.
- This meant that the rights of all women working or visiting any workplace, in any capacity, were protected under the Act.
Definition of Sexual Harassment
Under the 2013 law, sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:
- Physical contact and advances
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The Ministry of Women & Child Development has published a Handbook on Sexual Harassment of Women at Workplace with more detailed instances of behaviour that constitutes sexual harassment at the workplace. These include, broadly:
- Sexually suggestive remarks or innuendos; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life
- Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails
- Intimidation, threats, blackmail around sexual favours; also, threats, intimidation or retaliation against an employee who speaks up about these
- Unwelcome social invitations with sexual overtones, commonly seen as flirting
- Unwelcome sexual advances.
Unwelcome behavior
- The Handbook says “unwelcome behaviour” is experienced when the victim feels bad or powerless; it causes anger/sadness or negative self-esteem.
- It adds unwelcome behaviour is one which is “illegal, demeaning, invading, one-sided and power based”.
Circumstances amounting to SHW
The Act mentions five circumstances that amount to sexual harassment implied or explicit:
- Promise of preferential treatment in her employment
- Threat of detrimental treatment
- Threat about her present or future employment status
- Interference with her work or creating an offensive or hostile work environment
- Humiliating treatment likely to affect her health or safety
Procedure for complaint
| Description | |
| Filing a complaint | Aggrieved victim has the option to file a complaint with the ICC, but it is not compulsory for the ICC to act. |
| Assistance in filing a complaint | Any member of the ICC must provide reasonable assistance to the victim in filing a written complaint. |
| Filing a complaint on behalf of the victim | If the victim is unable to file a complaint due to incapacity, death, or other reasons, her legal heir may file it on her behalf. |
| Time limit for filing a complaint | Complaint must be made within 3 months from the date of the incident |
| Extension of time limit | ICC has the authority |
| Monetary settlement and conciliation | Yes |
| Forwarding complaint or initiating an inquiry | Must be completed within 90 days. |
| Confidentiality of information | Act ensures the confidentiality of the woman’s identity, respondent’s identity, inquiry details, recommendations, and actions taken |
Requirements imposed on employers
| Description | |
| Internal Complaints Committee (ICC) | Employers with more than 10 employees must establish an ICC to address sexual harassment complaints. |
| Composition of ICC | The ICC must include women employees, another employee, and a third-party member familiar with sexual harassment issues. |
| Local Committee (LC) for smaller organizations | Organizations with fewer than 10 employees must create an LC to receive complaints from the informal sector. |
| Complaint filing process | Women can file written complaints to either the ICC or LC within three to six months of the incident. |
| Resolution methods | The Act provides two resolution methods: conciliation between the parties involved or conducting an inquiry by the committee. |
| Annual audit report | Employers must file an annual audit report on sexual harassment complaints and take responsibility for conducting workshops, awareness programs, and orientation for ICC members. |
| Non-compliance penalties | Non-compliance with the Act can result in penalties, including fines. |
Hurdles to the Act’s Implementation
| Description | |
| Inadequate constitution of ICCs | Improper constitution of Internal Complaint Committees (ICCs) with inadequate members or absence of mandatory external members. |
| Lack of accountability | Unclear specification of responsibilities for ensuring compliance with the Act, leading to ineffective enforcement. |
| Inaccessibility for informal sector workers | Limited accessibility of the law for women in the informal sector, comprising a significant portion of the female workforce. |
| Underreporting of sexual harassment cases | Significant underreporting of cases due to fear of repercussions, power dynamics, and lack of awareness about the process. |
| Reliance on evidence and due process | Excessive reliance on concrete evidence, discouraging victims from coming forward and potential penalties during inquiries. |
| Lack of clarity in conducting inquiries | Lack of clarity in inquiry procedures, resulting in confusion and inefficiency in addressing sexual harassment cases. |
Recent concerns and directions from the Supreme Court
| Description | |
| “Serious lapses” and “uncertainty” in implementation | Supreme Court expressed concerns about the implementation of the PoSH Act, citing serious lapses and uncertainty in its enforcement. |
| Verification of Internal Complaint Committees (ICCs) | It directed to verify the formation of ICCs in government bodies. |
| Strict adherence to composition requirements | Emphasis was placed on ensuring strict adherence to the Act’s composition requirements for ICCs. |
| Inadequate constitution of ICCs | The Court highlighted the issue of improperly constituted ICCs, including the absence of mandatory external members. |
| Proactive approach for enforcement | A proactive approach from both State and non-State actors was called for in enforcing the Act. |
| Publication of committee details | Directions were given to publish committee details on websites within a specified timeframe. |
| Ensuring a safe and respectful workplace | The importance of providing a safe and secure workplace, ensuring the dignity and respect women deserve, was emphasized. |
| Accountability and effective enforcement | The Court’s directions aimed to ensure accountability and effective enforcement of the PoSH Act. |
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