Analysis: POSH Act

“To awake the people, it is the women who should be awakened. Once she is on the move, the family moves, the nation moves”

                                                                                                                      -Jawaharlal Nehru

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into force on December 9, 2013, for protection of women at workplace against sexual harassment and ensuring safe working spaces for women right to equality of status and opportunity.   All public or private organizations with more than 10 employees should provide a safe and secured environment for their employees[1]. This act makes it obligatory for the employer to provide safe working space. In a country like India where women are worshipped as a goddess instead of protecting them such acts are committed by men[2].

The act was passed in pursuance of Vishakha guidelines. The Vishakha Judgment[3] is a landmark case and Supreme Court acknowledged this as a violation of Human Rights. Hence, Vishakha Guidelines were framed. Though India already signed CEDAW, no domestic law existed on the furtherance of it. So this was done to assimilate International obligation on the Indian Legal System. This act helps to protect the fundamental rights of sections 14, 15, and 19(1) (g) and also to realize provisions of Article 42. The first case before the Supreme Court after Vishakha Judgment in this respect was the case of Apparel Export Promotion Council v. A.K Chopra[4]. In this case, the definition was enlarged by the apex court saying that it is not essential for physical contact to be there for an act to be considered sexual harassment. In another case, Medha Kotwal Lele & Ors. V. Union of India & Ors[5], a letter was written by Medha stating that for several cases regarding sexual harassment, the Vishakha Guidelines were not followed.

  • POSH Act: Law against Sexual Harassment at the Workplace:

In 1997, Vishakha Guidelines came into force but were not that effective. Later, in 2013 POSH Act came and widened the definition of sexual harassment at workplace as it even covered the informal sector and domestic workers within its ambit. It safeguards the rights of workers both in public and private sectors. According to law, sexual harassment can be defined as physical contact, or demand or request of sexual favors, making colored remarks or showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of sexual nature. Following are circumstances under which an act may amount to sexual harassment[6]. These are:

  1. Implied or explicit promise of preferential treatment in  employment;
  2. Implied or explicit threat of detrimental treatment in  employment;
  3. Implied or explicit threat about  present or future employment status;
  4. Interference with  work or creating an intimidating or offensive or hostile work

Environment;

  • Humiliating treatment likely to affect health or safety[7]

Under this act, the victim has an alternative to file a complaint with the police under the Indian Penal Code[8]  but usually, this takes long time and process. On the other hand, it mandates employers to set up committees for Redressal. The punishment can range from written apology to termination of employment. In cases where internal committee can’t be formed due to less than 1 employee or complaint is against the employer, the state government’s district officer or collector is required to form a Local Committee (LC) in each district and, if required, at the block level. It’s also the duty of the government to develop training and education material to spread awareness. They have to monitor if laws are well implemented and maintain data on the number of cases filed and resolved. Many do not get justice because of lack of proper implementation of such rules.

  • Objective, Applicability, and scope of POSH Act:

The objective of this act is to protect and prevent such acts and have Redressal for complaints. The POSH Act extends to the ‘whole of India[9]’. Not only an employee but even a customer or client can be subjected to it.

  • Analysis of the POSH Act:

Sexual harassment at a workplace is a violation of women’s right to equity, life, and freedom guaranteed under the Constitution. Although the Act is in power since 2013, the mindfulness concerning results of lewd behavior and its Redressal against the equivalent is restricted. The compelling execution of the POSH Act not just requires establishing an environment where ladies can speak out about their complaints without fear but also sharpening of men towards treatment of ladies in working environments is vital. Considering the #Me Too development, various cases counting those which happened before the institution of the POSH Act are presently coming into the spotlight. With the rising number of detailed instances of working environment inappropriate behavior of ladies, it gets basic for businesses and their separate HR and in-house lawful groups to find favorable to dynamic ways to forestall and adequately change the grumblings of work environment sexual badgering. To keep it under control, a thorough comprehension of translation is being embraced by courts. The capacity to take a gander at things from the focal point of the legal executive is important.  The Act might be developed to have an office for informants to give contributions on inappropriate activities being looked at by them or different individuals in the working environment, resulting to which the ICC will have the caution on if to explore the issue. Nonetheless, the idea concerning whether the Act may be utilized by people to dole out retributions or not appears to be exceptionally impossible as the resolution has sufficient shields against that.

To conclude, it is heinous because it confines people in conditions they would otherwise not allow. Though it was a significant step for women, it has not been that effective, especially in informal sectors. The present laws have not been able to solve this, at the same time there needs to be an effective implementation of laws. Awareness must be created regarding their rights. They need to gain trust in the internal committee. On the other hand, cases are underreported as they are scared of the aftermath. Feeling loss of cash flow or loss of respect, or that they will be embarrassed. Hence, there should be the promulgation of a strong policy prohibiting sexual harassment, workplace training, and a complaints process that protects workers from retaliation.


[1] D.K Srivastava, Progress of Sexual Harassment Law in India, China and Hong Kong: Prognosis for Further Reform, 2010, 51 HILJ 172.

[2]Shah Usman, Sexual Harassment Of Women At Workplace: A Brief Analysis Of The POSH Act, 2013, 19th Dec 2019, available at; https://www.mondaq.com/ last visited on 05/05/2021.

[3] Vishaka v. State of Rajasthan 1997 6 SCC 241: AIR 1997 SC 3011.

[4] Apparel Export Promotion Council v. A.K Chopra (1999) 1 SCC 759.

[5] Medha Kotwal Lele & Ors. V. Union of India & Ors (2012) INSC 643.

[6] Surinder Mediratta, Handbook of Law, Women, and Employment (1st ed, 2009).

[7] the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Sec 3(2).

[8] The Indian Penal Code, 1860, Section 354 and 509.

[9] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Sec 1.


Author: Nikita Barreto from School of Law, Christ University.


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