Analysis: POSH Act

The full name of the act is Prevention of Sexual Harassment at Workplace. The act, as the name suggests is about sexual harassment of women at workplace and it talks about prevention, protection and redressal. The main objective of the act is to identify sexual harassment, prevent sexual harassment and to provide a forum for redressal. Before the act came into being, there was no official forum for women at workplace to go and complain about sexual harassment issues so one of the most important elements of the act is introducing this forum.

After the Vishakha Case, that took place in 1992, the Visakha guidelines mandated having sexual harassment prevention policy but the POSH Act is the one that kind of formalized and mandated it for the organizations having more than 10 employees to consider the POSH Act and the policy should also provide for the constitution of an Internal Complaints Committee also known as ICC.

Objective of the Act

The act only covers women at workplace. The idea and intent are to protect women at workplace because of the longstanding history of sexual harassment of women at workplace like the international regime and Vishakha guidelines etc. The policy was required to be made gender neutral because it could be men as well who are harassed.

What is Sexual harassment?

As per the POSH Act, ‘sexual harassment’ includes unwelcome sexual behaviour, whether direct or implied, such as

  • doing any physical contact
  • requesting someone for sexual favours
  • any sexually coloured remarks
  • showing pornography
  • any unwelcome verbal or non-verbal or physical conduct of a sexual nature.
  • any sexual advances
  • any behaviour which is threatening a person to behave in a certain way

The following situations may also amount to sexual harassment at workplace-

  • Direct or indirect promise of special treatment in employment
  • Direct or indirect threat of harmful treatment in employment
  • Direct or indirect threat about present or future employment status
  • Interference with anyone during work or creating a frightening or offensive or unfriendly work environment
  • Dishonoured treatment that may affect the lady employee’s health or safety.

What is a workplace?

  1. Any department, organisation, endeavour, institution, enterprise, establishment, office, branch or unit that is established, owned, controlled or funded by either the governments or a local authority (such as a Municipal Corporation) or either it can be a private sector organisation, private undertaking, society, trust, enterprise, establishment, institution, NGO, or a service provider, that carries out industrial, commercial, educational, professional, health related, vocational, entertainment or financial activities.
  2. House or any domestic dwelling also counts as a workplace.
  3. Hospitals and nursing homes.
  4.  During the course of employment, if an employee visits any place is also considered workplace like any transportation service provided by the employer for visiting any such place.
  5. Any enterprise owned by individuals or self-employed workers and engaged in the production of sale of goods or services commonly considered as an unorganised sector is also a workplace.
  6. Any sports institutes, sports complexes and competition venues or stadiums that are or maybe used for training, sports or any similar activities.

Who is an employee or the aggrieved woman?

As per the POSH Act, an ‘aggrieved woman’ can be a woman of any age, employed or unemployed, who claims to have suffered any act of sexual harassment. Given, it is not necessary that a woman has to be an employee, even a customer/client who has been sexually harassed at a workplace can claim protection under the POSH Act.

What is Internal Complaints Committee or ICC?

If any organization consists of more than 10 employees, there should be a prevention protection policy and ICC. The employees have to be made aware of the ICC, and about its composition. If an unwanted act takes place like of harassment, the employee can immediately call on the numbers provided by the ICC or send an email to them. The ICC then takes up the complaint, acknowledges the receipt of the complaint, sends a copy of the complaint to the respondent and then the process takes over. Both the parties are heard and evidences are checked by the ICC. In case someone files a false complaint and the ICC comes to the conclusion that the complaint is untrue, misleading and most importantly there is intent, then the ICC can take action against the complainant also. But in some cases, there is not much evidence that can be provided by the complainant to prove himself, then that should not amount to a false complaint.

According to the act, the ICC shall consist of minimum 4 members one of which has to be a Presiding Officer who shall be employed at a senior level at workplace as compared to the employees, in case not available then nominated from another office or department or workplace of the same employer. Other 2 Members have to be selected from the employees who are preferably committed to the cause of women or who have legal knowledge or who have had experience in social work. The last one member has to be from the outside counsel. That means he is required to be a member from a non-governmental associations or organizations that are committed to the cause of women or a person familiar with the issues relating to sexual harassment.

At least 50% of the members shall be women in case of 4 members. All the members should be understanding of women issues. The members of the ICC can only hold office for a period not more than than 3 years, from the date on which they joined the office or as may be prescribed by the employer.

Presiding Officer or Member can be removed from the ICC in case he/ she-

i. Fails to maintain confidentiality of the inquiry containing information related to sexual harassment against the aggrieved woman.

ii. Has been convicted of any offence or an inquiry under any law, pending against him/her for the time being in force.

iii. Has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him/her.

iv. Has abused his position for rendering his continuance in department or unit prejudices to the general public interest.

So, as India progresses as a nation, along with its economic policies, it’s very natural for workplaces and organizations to remain side by side with the tide of modern development and encourage work environments that are driven exclusively by merit and rid of all types of discrimination. Hence the POSH Act is such step to social structure of today’s nation and in time shall yield its benefits for all women who are considered under the workforce.

Author: Prakriti Suthar from Manipal University, Jaipur.

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