October 23, 2021
To: either/view subscribers
KNOW YOUR RIGHTS – EDITION 12
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Good morning. Here’s a sobering statistic – over one-third of women said they have experienced some form of sexual harassment at work. The same survey found over half of the respondents didn’t report the incidents. This, even as the #MeToo movement took shape in India. Do women have legal protection at the workplace? What does the law say on this?
First, it’s a sad fact that official data on sexual harassment at the workplace is scant. The government doesn’t maintain a centralised repository of data on harassment of women in workplaces. Any person in a working environment should feel safe and comfortable. That’s what the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the Prevention of Sexual Harassment Act (PoSH), states.
Let’s take a look back on the history of legal recourses that were present on this matter. In 1997, the Supreme Court formed the ‘Vishaka guidelines.’ Public or private organisations must set up mechanisms to address sexual harassment complaints. Concerning the guidelines, they came into force in the wake of a case of social worker Bhanwari Devi. She filed a complaint against five men who gang-raped her. A trial court rejected it after doctors and the police dismissed her accusations.
It spurred women’s groups and NGOs to file a PIL in the Supreme Court. They did so under the collective platform called Vishaka. The apex court cited the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and passed guidelines that came to be known as the Vishaka guidelines. The court stated that such an incident violates the fundamental rights of Gender Equality and the Right to Life and Liberty. The court issued basic directions on preventive steps, criminal proceedings, disciplinary action, awareness, and complaints mechanisms among others. Here are two important components of the guidelines from the court:
- It stipulates that a company with more than ten employees should have an internal complaints committee. It must include a senior women employee and a member of an NGO that deals with sexual harassment.
- Districts should have a local complaint committee for companies with less than ten employees.
A woman can file a written complaint with either of these committees within three to six months of the incident. It’s resolved in two ways. One, through conciliation between both parties. Two, the committee can begin an inquiry and take appropriate action based on the investigation and evidence.
Sixteen years later, the Vishaka guidelines evolved into the PoSH Act, 2013. It came into effect on December 9, 2013, from the Ministry for Women and Child Development. Here’s section 2(n) defining ‘sexual harassment’ – any unwelcome physical contact, sexual advances, demand for sexual favours, making sexually explicit remarks, and other physical, verbal, or non-verbal conduct. It defines ‘unwelcome’ if a woman expresses discomfort as any of the acts take place. Here’s who the Act applies to:
- The head of a department, organisation, office, institution, undertaking, or government unit.
- A person who manages and supervises a workplace.
- A person who employs a domestic worker regardless of activities performed or period of employment.
What constitutes a workplace? Here’s how the Act defines it:
- A department, office, institution, organisation, enterprise, or branch unit that’s established, owned, controlled, or funded by the government or local authorities.
- Private sector entities, organisations, undertakings, institutes, NGOs, trusts, service providers, or private ventures that carry out commercial, professional, vocational entertainment, financial or health-related activities.
- Hospitals, nursing homes, sporting institutes, stadiums, competition venues, a house, and broadly, a place visited by an employee in the course of their employment.
Here are the mandates in the PoSH Act:
- A safe working environment – Employers are responsible for ensuring that the workplace is a safe environment for their employees. It isn’t limited to the official workplace; it also includes any company transportation or third-party sites.
- Constitution of committees – The formation of internal and local committees depending on if the organisation has less or more than ten employees.
- In-depth inquiry of all complaints – The internal and local committees are required to conduct an inquiry into every complaint. Once it’s completed, if the complaint is valid and allegations are proved correct, the committee can recommend the employer to take action.
- Workshops and awareness programmes – Every employer has to organise periodic sensitisation workshops for their employees. It must ensure that they are familiar with the Act and its components, the redressal procedures, and possible consequences for misconduct.
- False and malicious complaints – The Act includes provisions for false and malicious complaints and action against them. If the committee has found that a complaint or allegation is false, it can recommend the employer to take action against the person who filed the complaint.
What happens in cases of non-compliance? Here are two scenarios:
- If an employer fails to comply with the guidelines and components of the Act, they can be fined up to ₹50,000.
- If an employer fails a second time, they can be fined twice the amount, or their license, permit, or registration for conducting their activities can be terminated.
With the type of workforce in India, the law and other resources concerning sexual harassment aren’t accessible to most women. Let’s have a look at the ways how. First, most women in India work in the informal sector – domestic work, street vendors, construction, etc. For them, poverty and stigma continue to be the hardest barrier against speaking out. They also don’t get opportunities in law or the women’s movement. Second, internet usage among women is relatively low. Hence, these women workers can’t access redressal methods like the SHe-Box online portal, introduced in 2017. Given the current circumstances of the pandemic, the PoSH Act also applies if you’re working from home.