Addressing workplace Harassment: The role of POSH committees
Pulkit Raj (21010624)
Gargi A Singh (21010652)
Deeksha Agarwal (21010647)
Abstract
The Protection of Women from Sexual Harassment (POSH) Act, 2013 mandates that every
company develop anti-sexual harassment policy for its staff. Despite this many workforces are
abstained from its rights under the POSH Act, due to poor enforceability. This legitimately
contributes to the rise in occurrences of sexual harassment cases despite a dedicated legislation
which ought to have been preventing sexual harassment.
Introduction:
Sexual harassment can be defined through the actions of workers or coworkers in the workplace
or outside the workplace, which can either be physical or verbal in nature and may include
defaming behaviour. Examples taken from real life could be a nightmare coming true for a
great number of individuals working in various organisations.
The POSH Committee plays a crucial role in enhancing the protection of women's rights within
labour legislation. It is crucial in establishing a secure and non-threatening workplace
atmosphere for women.
Legislative History and embarking challenges
The Vishaka case and the A.K. Chopra case are two of the landmark judgements in the field
of sexual harassment. These cases have made it abundantly clear that any employee who is
sexually harassed is in violation of Fundamental Rights, and these cases have also built
guidelines so that workers or employees do not face such things in the future.
However, it is important to note that up until this point, the legislature has only focused on the
women's right and has left the men and other genders at a halt, this affects the feminist
intersectionality. The prevention of the vulnerable section is further seen to be encompassing
in the Rights of Persons with Disabilities Act, 2016, Transgender Persons Act, 2019 and so on.
Sometimes, transmen and transwomen abstain from disclosing their identity due to the fear of
prejudices and biases. Therefore, there is a need for the POSH Act to be implemented with a
wider connotation and has to be reworked, yet it should also be made sure that these acts are
only used to promote safety and not to misuse it.
POSH and the Metaverse
Sexual harassment in the metaverse reflects numerous problems observed in the tangible realm
but can materialise within a virtual setting. Gender-based discrimination, which encompasses
making insulting or offensive comments about someone's avatar, physical appearance, or
identity.
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Collaboration between metaverse platforms and their users is crucial in order to proactively
combat and handle instances of sexual harassment, hence creating a virtual environment that
promotes a good and respectful experience for all users. The implementation and enforcement
of POSH policies can have a substantial impact on accomplishing this objective.
The Information Technology (IT) Act and the POSH standards are both essential in dealing
with and preventing sexual harassment in the metaverse. Improvisations in tracking down the
unknown abuser remains a challenge in Indian setup as observed in Sulli Deals case and Bulli
bai case.
Adapting POSH Policies: Navigating the Challenges of Preventing Sexual Harassment in
Remote Work Environments During COVID Times
Following the impact of the Covid-19 pandemic, there was a noticeable transition towards
virtual and internet platforms. The decision to transition to a virtual mode was driven by the
necessity to rapidly adjust to long-term remote work, address consumer demands during the
lockdown, modify business models, address staff requirements and concerns, and ensure
business recovery and continuity in the face of many hurdles. The online environment has not
been secure for everyone, as there have been several instances of unreported sexual harassment.
During the initial stages of the work-from-home trend in multinational corporations, there was
a belief that the POSH Act was no longer necessary. However, it is important to understand
that the scope of POSH Act extends beyond physical spaces and has a broader interpretation.
It is crucial to note that Sexual Harassment encompasses not just the physical realm but also
extends to the internet realm.
Scope of POSH Act
Although many multinational corporations (MNCs) have declared their intention to implement
permanent work-from-home policies, it is necessary to broaden the definition of the workplace
to encompass the concept of "Home”. If an employee or workman experiences a situation
where their home becomes an unfriendly or unwelcoming atmosphere for work, it should be
considered for inclusion in either the virtual workspace or physical workplace. In 2021, the
Rajasthan High Court, in the case of Sanjeev Mishra v. Disciplinary Authority and General
Manager, expanded the definition of workplace to include virtual workspaces.
It would be inaccurate to interpret the phrase "virtual workspace to home". Therefore, if the
legislature decides to include "home" within the scope of the workplace, it will provide relief
for numerous employees.
The case of Medha Kotwal Lele & Ors. v. Union of India & Ors. was adjudicated by the
Supreme Court of India in 2018. The case originated with a petition submitted by a few activists
advocating for Women's Rights, headed by Medha Kotwal Lele. The Petition questioned the
validity of the POSH Act. The Petitioners alleged that the POSH Act was inadequate in
safeguarding women from sexual harassment in the workplace, and that it lacked proper
redressal measures for victims of such misconduct in furtherance to this, they stated that the
Act failed to sufficiently provide a redressal to the concerns about the involvement of third
parties enabling sexual harassment, the need to safeguard against online harassment, and the
requirement for gender-sensitisation of its members of internal complaint committees.
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The Supreme Court dismissed the petitioners' claims, affirming the constitutionality of the
POSH Act and its adequate safeguards for women against workplace sexual harassment. The
Court also determined that the Act was consistent with India's international commitments under
the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
The Medha Kotwal Lele case has great significance as it reasserted the crucial role of the POSH
Act in safeguarding women from sexual harassment in the workplace and offered valuable
insights into the practical implications and impacts of the Act. This is a landmark judgment in
the ongoing battle against sexual harassment and all manifestations of gender-based violence
in India.
Fostering a respectful workplace: Legal obligations and best practices
The POSH Act has established regulations that organisations must adhere to address complaints
promptly. As part of these provisions, the Act requires organisations to establish an internal
complaints committee (ICC) as a legal requirement. The IC consists of:
1. The IC is required to designate a female Presiding Officer who occupies a high-ranking
position within the organisation. In the absence of a senior-level employee, the ICC
has the authority to choose a female employee from other departments or divisions
within the workplace. If a qualified candidate cannot be discovered within the
organisation, another senior-level female employee from a different workplace under
the same employer or organisation may be selected instead.
2. Moreover, it is vital to incorporate two more members who are employees, namely
persons who are committed to promoting women's rights or possess proficiency in
social work or legal affairs.
3. The IC should include a representative from an NGO or association specialising in the
promotion of women's rights or possessing expertise in the field of sexual harassment.
It is accurate to assert that individuals do not resign from their positions, but rather depart from
the detrimental work atmosphere.
In the matter of Ruchika Singh Chhabra v. Air France India and Anr. (2018 SCC Online Del
9340), the Court offered more elucidation about the eligibility criteria for the External Member
of a Committee and the qualities required for the internal members within the organisation.
The requirement is that an external member does not need to have a specific professional or
organisational affiliation but must have competence around workplace sexual harassment.
The case of Sibu v. Air India Limited, ((2016) 2 KLJ 434) shed light on the method of
conducting preliminary inquiries and formal investigations, offering a clear understanding of
the procedure. Several Internal Committees fail to adhere to different inquiry requirements,
including paperwork, quorum, speed, and secrecy, when they receive a complaint. In this
judgement, the Court emphasised that the preliminary inquiry must adhere to all the protocols
of a full investigation.
Measuring POSH Act Effectiveness: Leadership's Role in Prevention
It's worth noting that the implementation of the POSH Act came after the landmark case of
Vishaka Vs. State of Rajasthan, but it's also important to note that with further change in time
amendments are needed, taking the loopholes into aspect, in a case of M. Rajendran Vs Daisy.
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Just like the above case there have been multiple cases where there had been partiality in
constituting the members of the Internal committee. Despite a good step that had been taken
by the POSH Act to implement an Internal committee whenever any sexual harassment case is
reported, there have been loopholes. The case had been decided by the Madras High Court in
which the Respondent persuaded the IC to handle the case favouring him. Additionally, the IC
was made up of personnel who reported to him as subordinates and worked under his
supervision. As a response to this, the Madras High Court decided that there is a legitimate
risk that any investigation carried out by the IC would be tainted by prejudice. This conclusion
was reached after the Madras High Court reviewed the allegations. Because of this, the Court
gave instructions to establish the IC in accordance with the mandates of the POSH Act in order
to address the specific complaint. This is being done in order to comply with the requirements
of the POSH Act thereby meeting principles of Natural Justice.
This is being done to comply with the requirements of the POSH Act committee. Despite this,
there have been several instances where employees have seen bias in the internal committee
member appointments. These kinds of situations have been documented in a number of cases:
In Smt. Sobha v. State of U.P., the respondent sought the formation of the internal committee
in response to a petitioner's complaint against him. The respondent contended that the
individual designated as the Internal Committee's presiding officer was a subordinate and did
not meet the requirements for being a senior level employer.
In the second case involving K Hemlata v. State of Tamil Nadu and Ors., the Madras High
Court rejected the internal committee's report because it contained representatives of the
educational institution's administrative department, which was against the POSH Act's
established procedure.
The Vishaka case ruling, delivered by the Supreme Court in 1998, was a significant milestone
in addressing sexual harassment in the workplace. Following this judgement, the enactment of
the POSH legislation demonstrated a greater focus on the rights and protection of women in
the workplace. The POSH Act is alleged not to be gender neutral, as the IC established under
the act is authorised to investigate only those complaints lodged by female employees, provided
that the complaint is filed within three months of the incident's occurrence.
There are misconceptions regarding the POSH Act. Some people believe that making an
organization's POSH policy gender neutral would be sufficient and a viable solution. However,
the legislature has not considered making it gender neutral. In other words, the POSH Act does
not permit such a modification.
The organisational policy, developed in compliance with the Act, cannot be gender-neutral
because the Act explicitly prohibits it. The Act grants the IC the power of a civil court while
conducting investigations related to actions under the Act. The jurisdiction of IC is comparable
to that of a civil court, but only when cases are initiated by female employees. The powers
vested in the IC, such as the ability to summon the complainant, respondent, and witnesses for
interrogation, seek documents as evidence, or propose actions following the conclusion of an
inquiry, are exclusively applicable to complaints filed by female employees.
The Vishaka case ruling basically aims to safeguard the "fundamental rights of women to
equality under Articles 14 and 15 of the Constitution of India, their Right to life and dignity
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under Article 21, and their Right to engage in any profession or occupation, including the Right
to a safe environment free from sexual harassment".
In the case of Anita Suresh vs. Union of India & Ors in W.P.(C) 5114/2015, the Court affirmed
the improper utilisation of the privileges granted to women under this legislation and imposed
a penalty of INR 50,000 on the Complainant for submitting a fraudulent complaint. An
essential provision in the statute is included to guarantee the prevention of abuse under this
legislation. Many organisations neglect to provide proper education to their workers about
this matter, and several Internal Committees fail to launch inquiries when they determine a
complaint to be frivolous.
POSH Act and infringement to the Fundamental Rights
In the Golaknath case, the Supreme Court made it abundantly plain that the Constitution
designates some rights to be Fundamental rights, and that this declaration renders null and void
any laws that infringe upon such rights. The supreme court could have used the word "person"
instead of just "women" or the specific pronoun "she"; the Vishaka judgement itself clarifies
that "fundamental rights of women to protect them from sexual harassment."
It can be made clear from the POSH Act that it violates the constitution of India according to
the Vishaka case. The Constitution and the Golaknath case state that fundamental rights do
not discriminate based on gender and have a broad application. These rights are not restricted
to any single gender.
However, the Fundamental Rights chapter of the Indian Constitution is responsible for Articles
14, 15, and 21 of the law in question. Therefore, in accordance with the Golaknath case, the
constitution recognises certain rights as basic rights and renders null and void all laws that
infringe upon those rights. Sexual harassment is not limited to a single gender. Recently, the
concept of diversity and inclusion has progressed to encompass LGBTQIA+ individuals in the
workforce.
It is imperative for organisations to adopt gender-neutral rules since some organisations have
already implemented gender-neutral policies regarding POSH Act. The Act establishes the
fundamental principles. Furthermore, sexual harassment not only directly affects employee
productivity and well-being, but also has a profound and enduring impact on the emotional and
mental well-being of the employee, as well as their behaviour. This impact extends beyond the
individual, affecting their family, children, and society. This issue is a critical and urgent
problem that requires immediate attention and action. The present expenses incurred will be
significantly less than the future consequences to be addressed.
Limitations of POSH Act and IT Act
Just like any other piece of law, they have their own restrictions and possible omissions. The
following are some objections and flaws that are often linked with both acts:
1. Obsolete Provisions and tracking system: IT Act, which underwent an amendment in
2008, has been criticised for allegedly not keeping up with the fast-advancing
technology. It is possible that it may not sufficiently handle modern forms of
cybercrime, such as increasing dangers like cyberbullying and online harassment.
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2. Ambiguities in Legal jargons: Some people believe that the legal wording of the IT Act
is unclear and may be interpreted in several different ways, which might result in
possible loopholes that criminals could use to their advantage.
3. Difficulties in Enforcing the Law: Due to jurisdictional questions and the international
scope of the internet, enforcing the laws of the Information Technology Act, particularly
in cyberspace, may be difficult. It might be difficult to locate criminals and bring them
to justice.
4. Concerns Regarding Privacy: The IT Act has come under fire for various aspects that
are associated with surveillance and data protection. A recurring difficulty is striking a
balance between the pressing need to protect individuals' privacy and the need of
fighting online criminality. Because, the Act is mainly concerned with criminal
prosecution, the scope of the civil remedies that may be available to victims who are
looking for compensation or restitution may be restricted.
However, constant adjustments and updates to existing laws are essential in order to
meet developing difficulties and enhance the efficacy of the legal system in the digital
era. In addition, increasing number of people's understanding these rules and
encouraging them to report violations are two of the most important things that can be
done to make them more effective in practise.
Conclusion
To summarise, while the POSH Act represents a noteworthy advancement in tackling
workplace sexual harassment in India, it cannot achieve complete success on its own. To
establish a work environment that is fair and equal for women, it is imperative to continue with
initiatives such as awareness campaigns, strict enforcement, and a change in societal attitudes.
It is an interactive procedure that requires the active participation of all parties involved, such
as employers, workers, and appropriate authorities, in order to accomplish its desired
objectives.
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