POSH Act, Challenges, Implementation, Procedure to Complaint

POSH Act in India refers to Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Know all about Associated Challenges and Implementation of POSH Act.

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Context: More than half — 16 — of India’s 30 national sports federations lack an Internal Complaints Committee (ICC), mandatory under the 2013 PoSH Act, as highlighted in the Mary Kom-led government committee’s report.

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POSH Act Overview

The “POSH Act” in India refers to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Bhanwari Devi Incident (1992): Bhanwari Devi, a social worker with Rajasthan’s Women’s Development Project, was gang-raped for trying to stop a child marriage.
Supreme Court 1997/Vishakha Guidelines (Vishaka vs. State of Rajasthan case in 1997):
- Following pleas against the crime, the Supreme Court recognized the lack of laws against sexual harassment at workplaces.
- The Court established guidelines to address this gap until relevant legislation could be passed.
Sources for the Guidelines:
- Article 15 of the Indian Constitution, which prohibits discrimination based on religion, race, caste, sex, and place of birth.
- International conventions, notably the CEDAW General Recommendations, which India ratified in 1993.
The Prevention of Sexual Harassment (PoSH) Bill:
- Introduced by the Ministry of Women and Child Development in 2007.
- Underwent several amendments before being enacted by Parliament on December 9, 2013.

Procedure Under Prevention of Sexual Harassment (PoSH) Act

Prevention of Sexual Harassment (PoSH) Act
Definition of Sexual Harassment	Under the 2013 law, sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication: Physical contact and advances A demand or request for sexual favours Sexually coloured remarks Showing pornography Any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Additionally, it also lists down five circumstances that would constitute sexual harassment if they are connected to the above-mentioned acts: Implied or explicit promise of preferential treatment in employment. Implied or explicit threat of detrimental treatment in employment. Implied or explicit threat about present or future employment status. Interference with work or creating an intimidating offensive or hostile work environment. Humiliating treatment is likely to affect health or safety.
Coverage	Applies to all workplaces and covers all women, irrespective of their age or employment status.
Committees	Internal Complaints Committee (ICC): Mandatory for employers with ten or more employees. Headed by a woman. Minimum two female members, with at least one external member. Local Complaints Committee (LCC): For workplaces with less than 10 employees, a Local Complaints Committee at the district level must be formed. LCC, appointed by the state government, can instruct employers on necessary actions for victim protection.
Role Of ICC And LCC	Compliance with Act and Natural Justice: ICCs and LCs must conduct inquiries according to the POSH Act, adhering to the principles of natural justice as outlined in the Act’s Rules. Filing a Complaint: A woman can submit a written complaint to either the internal (ICC) or local (LC) complaints committee within 3 to 6 months of the sexual harassment incident. Resolution Methods: The issue can be resolved in two ways: Through Conciliation: Between the complainant and the respondent, without involving financial settlements. Initiating an Inquiry: The committees may start an inquiry and take actions based on their findings.
Procedure For Complaint Under The Act	Filing a Complaint: The aggrieved woman “may” file a complaint, but it’s not mandatory for action. If she can’t, an ICC member “shall” assist in filing it in writing. Alternate Complainant: In cases of the woman’s incapacity, death, or other reasons, her legal heir can file the complaint. Time Frame for Complaint: Complaints must be filed within three months of the incident. The ICC can extend this limit under certain circumstances. Conciliation Option: Before the inquiry, the ICC can try to resolve the issue through conciliation, without monetary settlements. Inquiry Process: The ICC can forward the complaint to police or conduct its own inquiry within 90 days. It has similar powers to a civil court for summoning and document production. Report Submission: Post-inquiry, the ICC submits its report to the employer within 10 days, and it’s shared with both parties. Confidentiality: Identities and details of the inquiry and actions taken must remain confidential.
Actions After The ICC Report	If Allegations are Proved: The ICC recommends employer action per company service rules. Actions vary across companies. Compensation Recommendations: The ICC may suggest salary deduction of the guilty for compensation. Compensation considers factors like emotional distress, career loss, medical expenses, income status of the respondent, and payment feasibility. Right to Appeal: Both the aggrieved woman and the respondent can appeal in court within 90 days if dissatisfied.

Challenges To Implementation Of POSH Act

Inaccessibility in Informal Sector: The law is difficult to access for women in the informal sector, where over 80% of India’s female workforce is employed.
High Rate of Underreporting: Factors like organisational power dynamics, fear of losing jobs, and the absence of tangible evidence contribute to significant underreporting.
Gaps in ICC Formation: As seen with 16 out of 30 national sports federations, many organisations have not established an Internal Complaints Committee (ICC).
Flaws in ICC Composition: Many ICCs suffer from having too few members or missing a mandatory external member.
Unclear Legal Guidelines: There’s ambiguity in the law about conducting inquiries and a lack of awareness among women employees on how to report harassment.

Supreme Court Directions on POSH Act Implementation (Oct 2023)

Appointment of ‘District Officer’: The Supreme Court emphasised the mandatory appointment of a ‘District Officer’ in each state and union territory as per Section 5 of the POSH Act.
Time-Bound Assessment for Committees: The SC directed the Union of India, state governments, and union territories to conduct time-bound assessments to ensure the formation of Local Committees (LCs) and Internal Committees (ICs) across ministries, departments, organisations, and public sector undertakings.
Capacity Building Initiatives: The Court advised regular orientation programs, workshops, and awareness campaigns to improve the expertise of LC and IC members.

Justice Verma Committee Recommendations

Proposed establishing an employment tribunal instead of an ICC for addressing workplace sexual harassment.
Suggested that the committee may adopt its own procedures for expedient complaint resolution.
Recommended including domestic workers under the Act’s protection.
Advised against penalising women for false complaints, to preserve the law’s objective.