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

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Introduction

As a nation, we must not remain passive bystanders to instances of sexual harassment and gender-based discrimination against women in the workplace. The right to earn a livelihood with dignity and in a harassment-free environment is a fundamental human right, acknowledged by the Indian Constitution. To address this, India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act in 2013, inspired by the Supreme Court's landmark judgment in Vishaka vs State of Rajasthan

Sexual harassment encompasses various unwelcome behaviors of a sexual nature, including physical advances, demands for sexual favors, suggestive remarks, displaying explicit material, or any other inappropriate conduct. When such acts occur in contexts where victims fear repercussions at work, it can lead to humiliation and safety concerns. Discrimination arises when objections to harassment result in professional setbacks like recruitment or promotion disadvantages or foster a hostile work atmosphere. Victims may face adverse consequences for not consenting to or objecting to such behavior, perpetuating a cycle of harassment and intimidation in the workplace. Therefore, recognizing and addressing sexual harassment is crucial to ensuring a safe and equitable work environment for all individuals, regardless of gender or employment status. Laws like the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 aim to provide legal mechanisms for combating and redressing instances of sexual harassment in various organizational settings.

Objectives of the act

The primary objective of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act is to safeguard women from sexual harassment in the workplace and to provide a framework for addressing and resolving complaints related to such harassment.

In the landmark case of Vishakha and others v. The State of Rajasthan, the harrowing ordeal of Bhanwari Devi, a Dalit woman employed in the Women’s Development Project (WPD) of the Rajasthan government, shed light on the pervasive issue of sexual harassment in Indian workplaces. Bhanwari Devi's courageous efforts to prevent a child marriage led to her victimization by villagers who subjected her to harassment, threats, and social boycott. Tragically, she was later raped in September 1992, highlighting the dire consequences faced by women who challenge societal norms.

This incident catalyzed the formulation of the Sexual Harassment at Workplace rule in 1997, drawing attention to the urgent need for legal protection against workplace harassment. The case resonated across the nation, underscoring the vulnerabilities faced by women in professional settings and igniting a nationwide dialogue on gender-based violence.

The legislation aims to create a safe and conducive work environment for women by establishing mechanisms for prevention, prohibition, and redressal of sexual harassment complaints. By institutionalizing processes for reporting and addressing incidents of harassment, the Act seeks to empower women to assert their rights and seek justice without fear of retaliation or victimization. Through legal frameworks like the Sexual Harassment Act, India endeavors to uphold the fundamental principles of gender equality and human dignity in the workplace, fostering a culture of respect, inclusion, and accountability.

Employer's responsibility of women's protection

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, commonly known as the POSH Act, is a landmark legislation in India aimed at curbing sexual harassment in the workplace. It mandates employers to take proactive measures to prevent, prohibit, and redress instances of sexual harassment, thereby ensuring a safe and conducive work environment for women employees.

  • Understanding Employer Responsibilities: Employers play a pivotal role in implementing the provisions of the POSH Act within their organizations. Their responsibilities encompass various aspects of prevention, prohibition, and redressal of sexual harassment incidents.
  • Establishing Internal Complaints Committee (ICC): One of the primary obligations of employers is to constitute an Internal Complaints Committee (ICC) at each office or branch where ten or more employees are working. The ICC serves as the first point of contact for addressing complaints of sexual harassment. It must be headed by a senior woman employee and include at least two members from among the employees.
  • Drafting and Implementing a POSH Policy: Employers are required to develop a comprehensive anti-sexual harassment policy in accordance with the guidelines prescribed under the POSH Act. This policy should outline the organization's commitment to maintaining a harassment-free workplace, define prohibited behaviors, and establish procedures for filing complaints and conducting investigations.
  • Treating Sexual Harassment as Misconduct: Under the POSH Act, employers are mandated to treat instances of sexual harassment as acts of misconduct. They must clearly articulate the repercussions of such behavior, which may include disciplinary action, termination of employment, or other appropriate penalties. By clearly delineating consequences, employers deter potential offenders and foster a culture of accountability.
  • Creating Awareness and Sensitization Programs: Employers have a duty to raise awareness and sensitize employees about sexual harassment through workshops, seminars, and training sessions. These initiatives aim to educate employees about what constitutes sexual harassment, how to prevent it, and the procedures for reporting incidents. By promoting awareness, employers empower employees to recognize and address harassment effectively.
  • Displaying Information on Consequences: Employers must prominently display information about the consequences of sexual harassment and the functioning of the ICC in the workplace. This ensures that employees are aware of their rights and the available avenues for redressal. Transparency regarding the disciplinary measures reinforces the organization's commitment to addressing harassment seriously.
  • Assisting Employees in Filing Complaints: Employers have a responsibility to support employees in filing complaints of sexual harassment. They must ensure that the complaint process is accessible, confidential, and free from victimization. Additionally, employers should facilitate the investigation process and provide necessary assistance to the complainant, including legal guidance if required.
  • Compliance with Reporting Requirements: Employers are obligated to maintain records of sexual harassment complaints, their status, and actions taken for redressal. They must file annual reports on sexual harassment complaints with the appropriate regulatory authorities, such as the Registrar of Companies or the District Officer. Compliance with reporting requirements ensures transparency and accountability in addressing harassment incidents.

Establishment of Complaints Committees

Section 4: Formation of Internal Complaints Committee (ICC) Every employer is mandated to establish a committee known as the Internal Complaints Committee (ICC) through a written order. The ICC comprises:

  1. A presiding officer, preferably a senior woman employee.
  2. Not fewer than two members selected from the organization's employees.
  3. One member from a Non-Governmental Organization (NGO) or association dedicated to women's welfare.
  4. At least half of the total committee members should be women. Each member, including the presiding officer, serves a three-year term from their nomination date, as specified by the employer.

Removal of ICC Members: Members or the presiding officer can be removed from the ICC on the grounds of:

  1. Violation of Section 16.
  2. Conviction or pending investigation for any offense under current laws.
  3. Being found guilty in disciplinary proceedings.
  4. Misusing their position to compromise public interest.

Is ICC a Permanent Body? According to the Shital Prasad Sharma v. State of Rajasthan case, under Section 4, the committee is appointed for a three-year term to address complaints of sexual misconduct within the organization.

Formation of Local Complaints Committee (LCC) as per Section 6(1): Every District Officer for the concerned district establishes the LCC. Its role is to handle sexual harassment complaints from:

  1. Establishments without an ICC due to fewer than ten employees.
  2. Complaints against the employer. Composition of LCC (Section 7(1)): The LCC includes:
  3. A chairperson chosen from eminent women in social work supporting women's causes.
  4. A member of the local women's workforce.
  5. Two members from NGOs or individuals familiar with sexual harassment issues, preferably with legal backgrounds and diverse community representation.
  6. An ex officio member dealing with social welfare or women and child development.

Filing Complaints: Section 9 allows any aggrieved woman to file a written complaint with the ICC or LCC within three months of the incident or the last occurrence in a series.

Conciliation (Section 10): ICC or LCC may attempt conciliation before commencing an inquiry at the request of the aggrieved woman. Monetary settlements are prohibited, and settlements are recorded and shared with both parties. No further inquiry is conducted after settlement, as highlighted in the Himanshu Shekhar v. State of Maharashtra case.

Inquiry: If conciliation fails, the ICC or LCC proceeds with an inquiry as per service rules. In cases involving domestic workers, if a prima facie case is established, the complaint is forwarded to the police within seven days. If the respondent fails to comply with a settlement, the ICC or LCC may proceed with the case or forward it to the police. Both parties have the right to present their case, and reports are shared with them.

Punishments

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, outlines various punishments for offenses related to sexual harassment in the workplace. These punishments are designed to deter such behavior and ensure accountability. The Act categorizes sexual harassment as a punishable offense and defines penalties for employers and individuals found guilty of violating its provisions.

  1. Penalties for Employers:
    • Failure to comply with the provisions of the Act, such as not constituting an Internal Complaints Committee (ICC) or not adhering to the prescribed procedures, can result in penalties. The Act may impose fines on the employer for non-compliance.
  2. Disciplinary Action:
    • Employers found guilty of condoning or ignoring instances of sexual harassment in the workplace may face disciplinary action. This could include warnings, suspension, or termination of employment.
  3. Compensation:
    • Victims of sexual harassment are entitled to compensation for the trauma, emotional distress, and other adverse effects suffered due to the harassment. Employers may be ordered to pay compensation to the aggrieved party as part of the redressal process.
  4. Criminal Offense:
    • In severe cases of sexual harassment that amount to criminal offenses, such as assault or rape, the perpetrator can face criminal charges under relevant sections of the Indian Penal Code (IPC). This may lead to imprisonment and/or fines upon conviction.
  5. Civil Remedies:
    • Victims of sexual harassment can pursue civil remedies, including filing civil suits for damages against the perpetrator and/or the employer. Civil remedies seek financial compensation for the harm caused by the harassment.
  6. Professional Consequences:
    • Individuals found guilty of sexual harassment may face professional consequences such as damage to their reputation, suspension, or termination from their job. Employers may also take disciplinary action, including demotion or dismissal, against employees found guilty of harassment.

Overall, the Act aims to provide a comprehensive framework for preventing and addressing sexual harassment in the workplace, with a focus on accountability, deterrence, and providing justice to victims.

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