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 The Vishaka Guidelines then superseded by the POSH Law in December 2013.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. 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 “Employee⁷” under 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:

• 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:

*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:

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.