POSH Act : Daily Current Affairs

Relevance: GS-2: Issues relating to the development and management of Social Sector/Services relating to Health, Education, Human Resources.

Key Phrases: sexual harassment, #MeToo movement, Vishaka Guidelines, Ministry of Women & Child Development, ICC, UN Convention on the Elimination of All Forms of Discrimination against Women.

Why in News?

  • Kerala High Court on Thursday (March 17) asked organisations associated with the film industry to take steps to constitute a joint committee to deal with cases of sexual harassment of women, in line with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013.

Context:

  • In doing so, the court underlined that film production units must comply with the law against sexual harassment, commonly known as the prevention of sexual harassment or POSH Act, passed by Parliament in 2013. During the #MeToo movement, a number of women in India called out influential men - actors, standup comics, senior journalists - for alleged sexual harassment.

Vishaka Guidelines

  • In 1992, Bhunwari Devi worked as a social worker in the state’s Women Development Programme in Rajasthan. She was on duty when she tried to prevent a child marriage from taking place. She was brutally gang raped by a group of men from the dominant caste community who participated in the child marriage ceremony. A case was filed in the Supreme Court of India in 1997 (Vishaka versus the State of Rajasthan and others) highlighting this incident.
  • The lack of a framework, regarding sexual harassment faced by Indian women in their workplace, was recognised, and certain guidelines were passed by the Supreme Court that was in effect, until a comprehensive law regarding sexual harassment in the workplace was implemented. These guidelines were called the “Vishaka Guidelines” and included the definition of sexual harassment, disciplinary action for sexual harassment, and the formation of a complaints committee to investigate complaints of sexual harassment.
  • The Visakha guidelines, which were legally binding, defined sexual harassment and imposed three key obligations on institutions — prohibition, prevention, redress. The Supreme Court directed that they should establish a Complaints Committee, which would look into matters of sexual harassment of women at the workplace.

Law against sexual harassment or POSH Act:

  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013. It defined sexual harassment, lay down the procedures for a complaint and inquiry, and the action to be taken. It broadened the Vishaka guidelines, which were already in place.
  • It mandated that every employer must constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees. It lay down procedures and defined various aspects of sexual harassment, including the aggrieved victim, who could be a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”.
  • This meant that the rights of all women working or visiting any workplace, in any capacity, were protected under the 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.

Ministry of Women & Child Development

The Ministry of Women & Child Development has published a Handbook on Sexual Harassment of Women at Workplace with more detailed instances of behaviour that constitutes sexual harassment at the workplace. These include, broadly:

  • Sexually suggestive remarks or innuendos; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life.
  • Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails
  • Intimidation, threats, blackmail around sexual favours; also, threats, intimidation or retaliation against an employee who speaks up about these
  • Unwelcome social invitations with sexual overtones, commonly seen as flirting
  • Unwelcome sexual advances.

The Handbook says “unwelcome behaviour” is experienced when the victim feels bad or powerless; it causes anger/sadness or negative self-esteem. It adds unwelcome behaviour is one which is “illegal, demeaning, invading, one-sided and power based”.

Additionally, the Act mentions 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 her present or future employment status;
  • Interference with her work or creating an offensive or hostile work environment;
  • Humiliating treatment likely to affect her health or safety.

Procedure for complaint

  • Technically, it is not compulsory for the aggrieved victim to file a complaint for the ICC to act. The Act says that she “may” do so — and if she cannot, any member of the ICC “shall” render “all reasonable assistance” to her to complain in writing. If the woman cannot complain because of “physical or mental incapacity or death or otherwise”, her legal heir may do so.
  • The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, the Act states, should not be made public.
  • If the allegations of sexual harassment are proved, the ICC recommends that the employer take action “in accordance with the provisions of the service rules” of the company. These may vary from company to company. It also recommends that the company deduct from the salary of the person found guilty, “as it may consider appropriate”.
  • Compensation is determined based on five aspects: suffering and emotional distress caused to the woman; loss in career opportunity; her medical expenses; income and financial status of the respondent; and the feasibility of such payment.
  • Section 14 of the Act deals with punishment for false or malicious complaint and false evidence. In such a case, the ICC “may recommend” to the employer that it take action against the woman, or the person who has made the complaint, in “accordance with the provisions of the service rules”.
  • The Act, however, makes it clear that action cannot be taken for “mere inability” to “substantiate the complaint or provide adequate proof”.

Way Forward:

  • The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this above act are also properly observed by the employers in Private Sector.
  • Sexual harassment at the workplace is a very sensitive issue and is required to be handled with the utmost care, patience, and understanding thus, the complaints must be redressed as quickly as possible to ensure a harmonious and harassment-free workplace for all employees.

Un Convention On The Elimination Of All Forms Of Discrimination Against Women (CEDAW)

  • The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (“Convention”), was implemented in the year 1979 by the UN General Assembly which is often described as an international bill of rights for women. It enumerates what constitutes discrimination against women and also sets up a goal for national action to end such discrimination.
  • The Convention describes discrimination against women as “…any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
  • The Convention is the only human rights treaty that affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women’s rights to acquire, change or retain their nationality and the nationality of their children.
  • It is imperative to note that the Countries that have acceded to the Convention are legally bound to set its provisions into practice.
  • In 1994, India ratified the Convention of the Elimination of all forms of Discrimination Against Women (CEDAW) treaty.

Source: Indian Express

Mains Question:

Q. “Sexual harassment at a workplace is considered violation of women’s right to equality, life and liberty”. Illustrate the Statement.