Prevention of Sexual Harassment (PoSH) Act

Context: An investigation has revealed that more than half of India’s national sports federations do not have an Internal Complaints Committee (ICC), which is a requirement under the Prevention of Sexual Harassment (PoSH) Act, 2013.

Background: The Wresters’ Protest

• A section of wrestlers is protesting, demanding the removal of the President of Wrestling Federation on the allegations of sexual harassment.
• Post the protest, the government had formed a committee led by boxer M C Mary Kom that was required to investigate the matter and provide a report to the government.
  • The major finding of the committee is the absence of the ICC at the Wrestling Federation of India (WFI).
• The wrestlers have resumed their protest after no action was taken against the accused. The Supreme Court took notice of the event and asked police to register FIR.

The PoSH Act

• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, known commonly as the PoSH Act, was passed in 2013.
• The act defines sexual harassment, lays down the procedures for filing complaint and inquiry, and the action to be taken if allegations are true.
• Evolution of the PoSH Act:
  • The Supreme Court in 1997 had passed a judgment for prevention against sexual harassment at workplace. The detailed suggestions of the court were known as Vishaka Guidelines.
    • Vishaka was a women’s rights groups, which had filed a case over the alleged gangrape of a social worker for performing her duty.
  • The PoSH Act broadened and gave legislative backing to Vishaka guidelines.
• Sexual harassment under PoSH Act:
  • Under the 2013 PoSH Act, committing any one or more of the following would constitute sexual harassment:
    • 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.
• Under the PoSH Act, there are five circumstances that amount to sexual harassment:
  • Implied or explicit promise of preferential treatment in her employment;
  • Implied or explicit threat of detrimental treatment;
  • Implied or explicit threat about the complainant’s present or future employment status;
  • Interference with the complainant’s work or creating an offensive or hostile work environment;
  • Humiliating treatment of the complainant that is likely to affect her health or safety.

Internal Complaints Committee (ICC)

• The PoSH Act mandates every employer to constitute an Internal Complaints Committee (ICC) at each office or branch having 10 or more employees.
• The act defines various aspects of sexual harassment, and lays down procedures for action in case of a complaint.
• The ICC must be headed by a woman. It has powers similar to those of a civil court

Procedure for filing complaints under PoSH Act

• Initiation: It is not compulsory for the aggrieved victim to file a complaint for the ICC to take action.
  • She may do and if she cannot, any member of the ICC can provide all reasonable assistance to her to complain in writing.
  • In case the victim is unable to file complaint due to physical or mental incapacity or death or otherwise, her legal heir may do so.
• Local complaints committee: A local complaints committee must be formed that must receive complaints of sexual harassment from establishments that do not have ICC.
• Victim: The act provides a broad definition of victim, who can be a woman of any age whether employed [at the workplace] or not, who alleges to have been subjected to any act of sexual harassment”.
  • Under the act, the rights of all women who are working or visiting any workplace, in any capacity are protected.
• Time limit: The complaint had to be made within three months from the date of the incident. The ICC can extend the time limit if it is satisfied that certain circumstances prevented the victim from filing a complaint within the said period.
• Settlement: The ICC can take steps to settle the matter between victim and the respondent through conciliation, before the start of inquiry and at the request of the aggrieved victim.
  • However, monetary settlement shall not be allowed as a basis of conciliation.
• Inquiry: ICC can either forward the victim’s complaint to the police, or it can start an inquiry on its own, which has to be completed within 90 days.
  • During inquiry process, the ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath, and requiring the discovery and production of documents.
• Report: After completion of inquiry, ICC must provide a report of its findings to the employer within 10 days. This report must be provided to both parties.
• Confidentiality: The identity of the complainant, respondent, witness, any information on the inquiry, and action taken, should not be made public.

Post inquiry by ICC

• Proven allegation:
  • The ICC may recommend employer to take action in accordance with the provisions of the service rules of the company, which may vary from company to another.
  • ICC may recommend deduction of salary of the guilty person.
  • Compensation to the victim is based on five aspects: suffering caused to the woman; loss in career opportunity; medical expenses; financial status of the respondent; and the feasibility of such payment.
  • In case the victim or the accused is not satisfied, they may appeal in court within 90 days.
• False complaints:
  • If allegations are found to be false, the ICC may recommend to the employer to take action against the complainant, in accordance with the provisions of the service rules.
  • However, the act makes it clear that action cannot be taken for failure to substantiate the complaint or provide adequate proof.

Way Forward

• The Justice Verma committee was formed in 2013 to provide recommendation on prevention of sexual harassment in workplaces. Some of its recommendations include:
  • Employment tribunal: An employment tribunal must be set up under PoSH act instead of ICC. The tribunal need not function as a civil court but may choose its own procedure to deal with each complaint.
  • Expanding scope: The act must be expanded to include domestic workers. The definition of ‘sexual harassment’ must be expanded to consider perception of the victim.
  • Other provisions: The committee recommended doing away with 90 days’ time limit and penalty for wrong complaints.
    • It also increased the responsibility of the employer, making them liable for the safety of their employee.

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