Issues and Challenges in POSH

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter the act) broadly uses the framework laid down by the Vishaka’s guidelines, but departs both from the judgment as well as the bill drafted by the women’s groups in many ways. It restricts the rights of women, dilutes the due process rights, and reduces the liability of employers.

  • The definition of “Respondent” as given under Sexual Harassment at Workplace (Prevention, Prohibition & Redressal) Act, 2013 uses the word “person”. The legislation is silent as to whether this “person” or perpetrator can be a woman or a transgender as well.
  • Internal Complaints Committee: Problems: 
  • Under the Act there is a requirement of establishment of Internal Complaint Committee in all administrative units or offices for each workplace. The committee requires four members out of which three should be employees and one should be a non – employee. Half of the members of the committee are supposed to be women and it is also required for it to be headed be a senior level woman employee belonging to that workplace. 

But the fact not taken into consideration is that a particular organization may not have a senior level woman employee to head such a committee. Not only this, but it may not have the required number of women employees to constitute this committee. There is also no provision laying down the credibility and expertise of the members who would constitute the committee. The training and capacity building of these members has not been spoken about either.

  • Section 11(ii) of the act that enables the internal complaints committee to be given powers of a civil court for summoning discovery and production of documents, whereas the composition is without any legal background and no requirement of trainings then what is the utility of this provision in the Act.
  • It is also worth noting that the procedure of enquiry and complaints committee procedure is very cumbersome regarding the documents and paperwork.
  • Issues regarding Complaints: Section 26 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 speaks about the penalty on employer failure to constitute an Internal Complaints Committee. The Act is silent upon who is to shoulder the responsibility if the committee is not constituted within an organization. Who has to initiate action against the non- constitution of the committee? Hence, there is a need of a more defined structure is upon whom the responsibility of keeping a check on the constitution of such a committee is fixed.
  • The nature of the workplace:  It may be noticed that the law is very general and is not sensitive to different natures of the workplaces. The agricultural sector and residential areas for domestic helps are not sensitive to LCC and its proceedings. It does not provide the same civil remedy to domestic workers as it does to other women. Complaints from domestic workers have to be mandatorily forwarded to the Police Station, regardless of whether they want to use the criminal justice system or not. The civil remedy of compensation etc. is absent in their case.
  • Conciliation:  According to the provision of the Act on the written request of the aggrieved women the Internal Complaint Committee can proceed with conciliation as a first step towards the redressal of the complaint of sexual harassment. But, if it is observed on later stage that the respondent is not changed his behaviour according to the suggestion of the committee members, the aggrieved women has the option to go back to Internal Complaint committee to take the same complaint for redressal. As the Internal Complaint Committee members are all those members, who has redressed the complaint through conciliation and again they are going through the civil procedure to redress there are the chances of biasness/ prejudice and hence conciliation is contrary to the vishakha’s guidelines.
  • The onus of implementation of the Act is on the Employers, whereas the state should also hold some responsibility for its enforcement: The Act places main responsibility on the employer for implementation and leaves the State largely out of the purview of responsibility. There is no set-time frame for the LCC’s etc to be notified and no punishment for government officials for failing to do so. The role of the state especially the state government is negligible in terms of ensuring the enforceability of the Act.
  • Awareness: 
  • Home Ministry should play a bigger role like advertising and taking measures to sensitize the youth.
  • The employers must be assigned a duty to devise a sexual harassment policy and that should be prominently displayed within the premises with complete details on the procedure for making a complaint.
  • There is vagueness pertaining to the definition of what exactly constitutes sexual harassment. It might be a very subjective experience for each woman. Hence, women might often be unaware about the citation of difference between physical and sexual harassment. Hence, a clarity pertaining to the same must be incorporated.
  • Vigilance and monitoring committee: There is no provision in the Act about the monitoring of implementation of the provisions of the Act, which has to be taken into consideration for smooth and better functioning of the Act. The high-power Vigilance and monitoring committee shall meet at least twice in a calendar year, in the month of January and July to review the implementation of the provisions of the Act and other matters connected therewith, prosecution of cases under the Act, role of different officers/agencies responsible for implementing the provisions of the Act.
  • Protection mechanism: Due to lack of witness protection, witnesses are not willing to come forward to support the women concerned. Hence, a protection mechanism to be incorporated within the act.
  • Inclusion of a non- employee in the constitution of the ICC: The act requires a person “amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment”. However, employers might not be comfortable in relying on a person from outside their establishment on such a sensitive matter. They often like to keep such matters as confidential as possible so as to avoid unwanted publicity. Such instances usually lead to a downfall in the image of the establishment in the market. Thus, employers would find it difficult to trust a person from an outside organization with such a case. 
  • Time Frame to Redress Complaint: The act lays down the limitation of a maximum of six months for filing the complaint with limited powers to the committee to condone the delay. Moreover, it insists on a written complaint and illogically asks for six copies of the complaint. The limitation of three months (extendable by another three months at the discretion of the committee) is designed to defeat the claims that are filed after the woman is victimised and goes beyond the Vishaka guidelines in limiting the rights of women to seek redressal.
  • Penalty for False and Malicious Complaint:  Act states of action for false and malicious complaints and evidence under section 14 of the act. Women are penalised and have to bear the threat of punishment in case they are unable to prove their complaint and where the Internal Committee comes up with an adverse finding against them. Even the Verma Committee Report had asked for its deletion, but the government ignored the recommendation and retained the provision.
  • Inquiries: The law is developing, and unclear as to the inquiry procedure. There are no clear road maps on how to conduct inquiries. Most committees are unaware of the legal requirement for cross-examination and its importance. The employers, by and large, do not play any role in ensuring that the enquiry committees are equipped to deal with the procedures in accordance with law, except where the stakes are high or the employer has a personal interest in ensuring an outcome that can be defended in a court of law. In most cases, there is lack of coordination between the complaints committee and the personnel/disciplinary authority of the organisation.

Conclusion:

Even though the Act is in force since 2013, the awareness regarding consequences of sexual harassment and its redressal against the same is limited. The effective implementation of POSH Act not only requires creating an environment where women can speak up about their grievances without fear and get justice but sensitization of men towards treatment of women at workplace is equally necessary. In case of allegations of sexual harassment, the employer has no liability to remove the person unless the woman is able to prove the allegations made by her.

Thus, the law that aims to provide a safe working environment for women puts the onus on the woman to prove that she does not have a safe workplace environment and does not make it the legal responsibility of the employer. Apart from this, large companies have taken a number of steps but most have to still implement measures in order to live up to the spirit of the act. Also, a majority of business establishments are still in the process of figuring out what to do. Hence, I, suggest that a greater clarity may be brought into the act.

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