India is rapidly progressing in its developmental goals and more women are joining the workforce, resulting in the sexual harassment of women at the workplace is becoming increasingly prevalent in India. Sexual harassment at the workplace is an extension of violence in everyday life and is discriminatory and exploitative, as it affects women’s right to life and livelihood.

These incidences of sexual harassment results in violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India (hereinafter known as “the Constitution”) and also affecting her right to live with dignity as envisaged under Article 21 of the Constitution. Women all around the world have faced instances of sexual harassment, which may include sexual advances, and another verbal or physical harassment of a sexual nature, and the same is required to be dealt with proper care as a safe and secure workplace is, therefore, a woman’s legal right.

In order to curb these acts/ incidents of sexual harassment at the workplace, the Ministry of Women and Child Development, Government of India, enacted the first codified legislation specifically dealing with the issues of workplace sexual harassment, i.e. “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” (hereinafter referred to as the “POSH Act”), which came into effect on December 09, 2013. Subsequently, the government of India also notified the rules under the POSH Act titled “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Rules, 2013” (hereinafter referred to as the “POSH Rules”). The POSH Act along with POSH Rules, collectively referred to as the “POSH Law”, aims to foster a safe and secure working environment for women by preventing, prohibiting and redressing the instances of sexual harassment at workplaces in India.

Thereafter in 2013 itself, an amendment has been promulgated by way of the Criminal Law (Amendment) Act, 2013 post Nirbhaya rape outrage, which has criminalized the offences such as sexual harassment, stalking, and voyeurism.

The following write-up is deliberating in detail, the evolution of the law on sexual harassment in India, its developments covering various judgments/ case laws, the legislative timeline of enactment of POSH Law in India, and our comprehensive analysis on POSH Law, its salient features & scope, and other legal provisions applicable to the workplace sexual harassment in India.

LEGISLATIVE TIMELINE OF ENACTMENT OF POSH LAW IN INDIA

  

       2007                                          
  • Draft Protection of Women against Sexual Harassment at Workplace Bill, 2007("Bill") approved by the Union Cabinet
  2010  
  • The Bill was introduced in the Lok Sabha
  2012  
  • The amended Bill re-introduced in the Lok Sabha;
  • On September 03, 2012, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed by the Lok Sabha
  2013  
  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed by the Rajya Sabha on February 26, 2013;
  • On April 23, 2013, President gave assent on the POSH Act and the same was published in the Gazette of India as Act no. 14 of 2013;
  • The Indian Ministry of Women and Child Development notified December 09, 2013 as the effective date of the POSH Act and the POSH Rules.

 

POSH LAW: SALIENT FEATURES AND ITS SCOPE

POSH Law is legislated based upon the guidelines and norms (hereinafter called as the “Vishaka Guidelines”) declared by the Hon’ble Supreme Court of India (“Supreme Court”on August 13, 1997, acknowledged sexual harassment at the workplace as a violation of human right. However, it took a decade after the landmark judgement of Vishaka & Ors. v. State of Rajasthan & Ors.1 (hereinafter called as “the Vishaka Judgement”) for the legislature to initiate the crafting of a definitive law on workplace sexual harassment. The Vishaka Guidelines then superseded by the POSH Law in December 2013.

Applicability: The POSH Act extends to the whole of India2 and recognizes that sexual harassment constitutes a violation of the fundamental rights of women and their right to life and live with dignity and carry on any profession, trade, or business in an environment free from sexual harassment.

POSH Law affects all of India and is not gender-neutral as it protects only women. A man who is a victim of sexual harassment at the workplace is not entitled to invoke POSH Law, rather he must rely on company policies or service rules that prohibit sexual harassment of any nature. However, many organizations have opted to make their POSH policy gender-neutral in order to ensure an equal representation of the workforce. POSH Law applies to both organized and unorganized sectors3.

Salient features of the POSH Law: The POSH Act provides a civil remedy to women and is in addition to other laws that are currently in force, i.e., both civil, as well as criminal recourse, is available to an aggrieved woman. The POSH Act has been enacted and in force since 2013, with a three-fold objective of:

  • Prohibition of sexual harassment at the workplace;
  • Preventing and protecting women against workplace sexual harassment; and
  • To ensure effective redressal of complaints of workplace sexual harassment.

 

1. Who is an “Aggrieved Woman4”?

          “Aggrieved woman” means-

    1. in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
    2. In relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.

2. Definition of “Sexual Harassment5” as per POSH Law: The POSH Act defines “Sexual Harassment” in line with the Supreme Court’s definition of ‘sexual harassment in the Vishaka Judgement. As per POSH Act, “Sexual Harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:

  •         Physical contact and advances; or
  •         A demand or request for sexual favors; or
  •         Making sexually colored remarks; or
  •         Showing pornography; or
  •         Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature

3.  What is a “Workplace6”?

The Act introduces the concept of an ‘extended workplace’. In addition to the office of the employer or employee, any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment, will also constitute a workplace. The most commonly seen situations of an extended workplace are those scenarios where an official event is taking place in a social setting, but endorsed or financed by the employer, in which case, such events will also be deemed a workplace under POSH Law.

4. The definition of an “Employee7under the POSH Act is fairly wide to cover regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract laborer’s, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.

5. Complaints Committee: An important feature of the POSH Law that it envisages the setting up of a grievance redressal forum, i.e., complaints committee. The Act provides for two types of complaints mechanism: Internal Committee8 (“IC”) and Local Committee9 (“LC”). The IC and LC have the same powers as vested in a civil court under the Code of Civil Procedure, 1908. All the complaints committees shall have at least half of the total members so nominated of women. The members of the complaint committees will hold their position for up to 3 years from the date of their nomination or appointment.

  • IC: Every employer10 is responsible to constitute an IC at each office or branch, of an organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment. Failure to set up an IC has led to the imposition of fine as it is a non-compliance under the POSH Law. The IC will be composed of the following 4 members:

 

i. Presiding Officer:

a woman employed at a senior level at the workplace from amongst the employees.

ii. 2 members (minimum):

From amongst employees committed to the cause of

women/ having legal knowledge/ experience in social work

iii. External member:

From amongst NGOs/associations committed to the cause of women or a person familiar with the issues

relating to sexual harassment

  • LC: At the district level, the government is required to set up an LC to investigate and redress the complaints pertaining to sexual harassment from the unorganized sector or establishments where IC has not been constituted on account of the establishment having less than 10 employees or in case the complaint is against the employer or from domestic workers. The LC will be composed of the following 5 members:

 

i. Chairperson:

Nominated from amongst the eminent women in the field of social work and committed to the cause of women.

ii. Local woman:

One of the members to be nominated from amongst the women working in the block, taluka, tehsil or ward or municipality in the district.

iii. 2 NGO members*:

From amongst  NGOs/associations/ persons committed to the cause of women or familiar with the issues of sexual harassment, provided that:

  • At least one must be a woman.
  • At least one must have a background of law or have legal knowledge

iv. Ex-officio member:

The concerned officer dealing with social welfare or

women and child development in the district

 

*one of the nominees shall be a woman belonging to the scheduled castes/ scheduled tribes/ other backward classes or minority community notified by the central government, from time to time.

 

6. Reporting of complaint11: An aggrieved woman who intends to make a complaint is required to submit 06 copies of the written complaint along with supporting documents & other necessary details as prescribed, within 03 months from the date of the incident to the IC/LC, as the case may be. The 3 months’ timeline may be extended to another 03 months by IC/LC, as the case may be, in case sufficient cause is demonstrated by the complainant in writing for delay in reporting a complaint. In case an aggrieved woman is unable to make a complaint on account of her physical/ mental incapacity/ death/ otherwise, her legal heir/ such other person as may be prescribed may make a complaint.

 

7. Conciliation12: The Act also provides that IC/ LC, as the case may be, can take steps to settle down the matter amicably at the request of an aggrieved woman, before initiating a formal inquiry to the complaint made, however, no monetary settlement shall be arrived as a basis of conciliation.

 

8. Redressal mechanism & timeline involved: The POSH Law has laid down specific timelines for resolving complaints. The activities and respective timelines to be followed in accordance with the POSH Law are outlined herein below:

Submission of complaint:

Within 3 months of the last incident

Notice to the respondent:

Within 7 working days of receiving a copy of the complaint

Completion of enquiry:

Within 90 days

Submission of report by IC/ LC to employer/ district officer, as the case may be:

Within 10 days of completion of the inquiry

Implementation of recommendations:

Within 60 days

Appeal13 by complainant/ respondent:

Within 90 days of the recommendations

 

9. Employers’ duties and obligations14: Every employer is under an obligation and duty-bound to:

  • Provide a safe and secure working environment;
  • Set up an IC and ensure redressal of grievances of workplace sexual harassment in a time-bound manner;
  • Display the penal consequences of harassment at conspicuous places in the workplace;
  • Organize workshops and awareness sessions at regular intervals for sensitizing employees on the issues of sexual harassment at the workplace and its implications;
  • Provide necessary facilities to the IC/ LC, as the case may be, for dealing with the complaint and conducting an inquiry;
  • Treat sexual harassment as a misconduct under service rules and initiate action for such misconduct;
  • Monitor the timely submission of reports by the IC;
  • Provide assistance and cause to initiate action under IPC or any other law in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
  • Assist in securing the attendance of respondent and witnesses before the IC/ LC, as the case may be;
  • Make available such information to the IC/ LC, as the case may be, as it may require to the complaint made;

Additionally, the employer is responsible for the following as per POSH Law:

  • Frame a POSH policy that prohibits unwelcome behavior that constitutes workplace sexual harassment, prevents the incidences of harassment through awareness programs/ sensitization sessions and provide a detailed framework for redress;
  • Declare the name and contact details of all the members of IC;
  • Publish the POSH policy over the company website/ intranet and circulation of the same, wherever required;
  • Submit an annual report to the district officer, prepared by IC containing the details on the number of cases filed and their disposal and number of workshops or awareness sessions against the workplace sexual harassment carried out to sensitize the employees;

Include in the annual report of the organization, the number of cases of sexual harassment filed and disposed of.

10. Consequences of making a false or malicious complaint15: If the IC/ LC concludes that the allegation made by the aggrieved woman is false/ frivolous/ malicious/ complaint has been made knowing it to be untrue/ forged/ misleading information has been provided during the inquiry, then, in that case, disciplinary action in accordance with the service rules of the organization can be taken against such complainant and if service rules doesn’t exist, then in such manner as may be prescribed under the POSH Rules.

11. Confidentiality16: The Act prohibits the publication or making known the contents of a complaint and the inquiry proceedings due to the sensitivity attached to the matters related to sexual harassment. Any breach of confidentiality will result in specific consequences. Furthermore, the POSH Act specifically stipulates that information pertaining to workplace sexual harassment shall not be subject to the provisions of the Right to Information Act, 2005.

12. Consequences of non-compliances17: Contravention of the provisions of the POSH Law, including failure to constitute the IC, will attract a penalty of INR 50,000 on the employer. Repetition of the same offence could result in the punishment being doubled and/ or de- registration of the entity or revocation of any statutory business licenses. It is pertinent to note here that any offence committed under the POSH Law shall be non-cognizable18.