POSH

The POSH Act has its roots in a tragic incident from 1992, when Bhanwari Devi, a grassroots worker in Rajasthan, was tasked with preventing child marriages in her community. While successfully stopping the marriage of a one-year-old girl, she faced severe backlash and harassment from local men. Despite reporting the harassment to the authorities, no action wastaken. This negligence led to a horrific outcome—Bhanwari was gang-raped by those same men.

Her case highlighted the pervasive sexual violence faced by working women across India, regardless of their location. It also underscored the dangers of ignoring sexually offensive behavior in the workplace. In response to this, Vishaka and other women’s groups filed a Public Interest Litigation (PIL) against the State of Rajasthanand the Union of India in the Supreme Court. They argued that sexual harassment must be recognized as a violation of women’s fundamental right to equality and that all workplaces should be held accountable for protecting these rights.

1. Quote in the famous Vishaka case:

In response to this growing issue, the Indian government enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the POSH Act. This legislation, introduced by the

Ministry of Women and Child Development, specifically addresses workplace sexual harassment.

The key three pillars are:

• Prevention,
• Prohibition and
• Redressal

Further, now with globalization, women’s roles in the workforce have dramatically expanded. However, as more women join the workforce, the issue of sexual harassment at work has become increasingly significant.

Sexual harassment in the workplace is not just a violation of basic rights; it is a form of gender discrimination that undermines a woman’s fundamental rights to equality and life, as guaranteed by Articles 14, 15, and 21 of the Indian Constitution.

The primary goal of the POSH Act is to prevent sexual harassment at the workplace, protect women from such abuse, and ensure that complaints are effectively addressed. The law is designed to provide every woman—regardless of her age or employment status—a safe and dignified work environment, free from all forms of harassment. However, despite the law being in place since 2013, its effective implementation remains a challenge.

Many people are still unclear about what constitutes sexual harassment, the responsibilities of employers, the remedies available to victims, and the proper procedures for investigation. There’s also a general lack of awareness about the criminal consequences of such behavior.

Often, inappropriate jokes or comments are brushed off as harmless, and many women hesitate to take action due to fear of disbelief or ridicule. This highlights the need for greater awareness and stricter enforcement of the law.

Key Provisions of the POSH Act

I. Applicability and Scope

• Jurisdiction: The POSH Act extends to the ‘whole of India’.
• Aggrieved Woman: As per the POSH Act, an ‘aggrieved woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment. Given that the definition does not necessitate the woman to be an employee, even a customer/client who may be sexually harassed at a workplace can claim protection under the POSH Act. The POSH Act further stipulates that a woman shall not be subjected to sexual harassment at her workplace.
• Accordingly, it may be noted that inorder for a woman to claim protection under the POSH Act, the incident of sexual harassment should have taken place at the ‘workplace’.
• Gender: The POSH Act is not a gender-neutral legislation and protects only women. Therefore, the safeguards under the POSH Act are not applicable to ‘men’ victims although employers may choose to extend the protection through their policy.

Definition of Sexual Harassment?

As per the POSH Act, ‘sexual harassment’ includes unwelcome sexually tinted behaviour, whether directly or by implication, such as (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

The following circumstances, among other circumstances, if they occur or are present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:

-> 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 or offensive or hostile work environment; or

-> humiliating treatment likely to affect the lady employee’s health or safety.

Employee

The definition of an ‘employee’ under the POSH Act is fairly wide to cover regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract labourers, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.

Workplace

The POSH Act (Prevention of Sexual Harassment) of 2013 defines a workplace as any place visited by an employee during the course of their employment, including transportation provided by the employer.

This includes:

• Premises owned and operated by the government or private parties
• Homes where domestic workers are employed
• The unorganized sector, which includes enterprises owned by individuals or self-employed workers

The POSH Act also considers an employee’s home to be part of an extended workplace because they may still interact with colleagues and work there. This means that an employee’s actions at home may fall under the purview of the POSH Act. The Sikkim High Court has also emphasized the inclusive nature of the POSH Act’s workplace definition, and has stated that the use of social media platforms is a big part of the workplace. When determining whether a coworker has been harassed, messages of any kind will be taken into account.

The POSH Act also requires most organizations in India to have an anti-sexual harassment policy that covers workplace conduct, social media usage, and reporting mechanism.

Complaints Committee

An important feature of the POSH Act is that it envisages the setting up of a grievance redressal forum.

A. Internal Committee

The POSH Act requires an employer to set up an ‘internal committee’ (“IC”) at each office or branch, of an organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment. Failure to constitute the IC has led to imposition of a fine under the POSH Act.

Registration of the IC

The Department of Women and Child Development of Telangana and Maharashtra has issued a circular (on 01.07.2019 for Telangana) and an office order (on 23.03.2017 for Mumbai) mandating registration of the IC in Telangana & Mumbai.

Powers of the IC/LC

The POSH Act stipulates that the IC and LC shall, while inquiring into a complaint of workplace sexual harassment, have the same powers as vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of:

i. summoning and enforcing the attendance of any person and examining him on oath;

ii. requiring the discovery and production of documents; and

iii. any other matter which may be prescribed.

Complaint Mechanism

An aggrieved woman who is subject to sexual harassment can file the same by way of submitting a written complaint, along with supporting documents and names and addresses of the witnesses to the IC, within 3 months from the date of the incident and in case of a series of incidents, within a period of 3 months from the date of the last incident.

In instances where sufficient cause is clarified as to why complainant could not be made within 03 months, Internal Compliant Committee may extend the timeline for filing the complaint, for reasons to be recorded in-writing.

Additionally, under special circumstances the law provides a provision for friends, relatives, co-workers, psychologist & psychiatrists, to file the complaint for an aggrieved woman due to physical incapacity, mental incapacity or death.

Conciliation

Internal Compliant Committee (“IC”) before proceedings on the compliant, on the request of the aggrieved woman, may take up a conciliation proceeding to bring an amicable settlement between the parties.

Accordingly, after a complaint of sexual harassment has been lodged, the aggrieved woman may request IC to resolve the matter by conciliating between the parties before commencement of the inquiry proceedings, although monetary settlement should not be made as a basis of conciliation.

In case there is any settlement, then the IC shall record the settlement arrived at and thereafter provide copies of the settlement to the aggrieved woman as well as the respondent.

Once a settlement has been arrived at, the IC shall not proceed with an inquiry under the POSH Act

Interim Reliefs

At the request of the complainant, the IC may recommend to the employer to provide interim measures such as:

i. transfer of the aggrieved woman or the respondent to any other workplace;

ii. granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement;

iii. restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, which duties may be transferred to other employees.

Punishment and Compensation

The POSH Act prescribes the following punishments that may be imposed by an employer on an employee for indulging in an act of sexual harassment:

i. punishment prescribed under the service rules of the organization;

ii. if the organization does not have service rules, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service; and

iii. deduction of compensation payable to the aggrieved woman from the wages of the respondent.

The POSH Act also envisages payment of compensation to the aggrieved woman. The compensation payable shall be determined based on:

i. the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee;

ii. the loss in career opportunity due to the incident of sexual harassment;

iii. medical expenses incurred by the victim for physical/ psychiatric treatment;

iv. the income and status of the alleged perpetrator; and

v. feasibility of such payment in lump sum or in installments.

In the event that the respondent fails to pay the aforesaid sum, IC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

Frivolous Complaints

In order to ensure that the protections envisaged under the POSH Act are not misused, provisions for action against “false or malicious” complainants have been included in the statute. As per the POSH Act, if the IC concludes that the allegation made by the complainant is false or malicious or the complaint has been made knowing it to be untrue or forged or misleading information has been provided during the inquiry, disciplinary action in accordance with the service rules of the organisation can be taken against such complainant.

Where the organisation does not have service rules, the statute provides that disciplinary action such as written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service may be taken. The POSH Act further clarifies that the mere inability to substantiate a complaint or provide adequate proof need not mean that the complaint is false or malicious.

Confidentiality

Recognising the sensitivity attached to matters pertaining to sexual harassment, the POSH Act attachessignificant importance to ensuring that the complaint and connected information are kept confidential.

The POSH Act specifically stipulates that information pertaining to workplace sexual harassment shall not be subject to the provisions of the Right to Information Act, 2005.

The POSH Act further prohibits dissemination of the contents of the complaint, the identity and addresses of the complainant, respondent, witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the IC/LC and the action taken to the public, press and media in any manner. That said, the POSH Act allows dissemination of information pertaining to the justice that has been secured to any victim of sexual harassment, without disclosing the name, address, identity or any other particulars which could result in the identification of the complainant or the witnesses.

Disclosure of the justice secured could not only deter other individuals from engaging in acts of sexual harassment, but also instil in the minds of employees and public that the employer is serious about providing a safe work environment and

harbours zero tolerance for any form of sexual harassment at the workplace.

Breach of the obligation to maintain confidentiality by a person entrusted with the duty to handle or deal with the complaint or conduct the inquiry, or make recommendations or take actions under the statute, is punishable in accordance with the provisions of the service rules applicable to the said person or where no

such service rules exist, a fine of INR 5,000.

Tips : Drafting an Inquiry report

IC to prepare a report on the proceedings and has to submit the same with the management of the organization within 10 days from completion, with a copy to be shared with the complainant and the respondent.

Key terms to be included in the reports:

1. This is a detailed report that consists of all the information of the complaint including the conclusion and the actions that the IC recommends along with its reasons.

2. Some of the details that are included in the Inquiry Report are as follows:

a. Date of complaint — whether it was filed with 3 or 6 months from the last incident of sexual harassment
b. Names of the parties
c. Allegations
d. Details of the IC members

e. Interim relief provided by the IC (if any)

f. Name of Witness(es)

g. Documentary evidence relied upon by the IC

h. Findings with reasons

i. Written representation of the party (if any)

j. Reasons of the IC to accept / reject the representation(s)

k. Recommendation of action to be taken by the management as per the conclusion of the inquiry

l. All relevant annexures, disclaimers and any other aspect that may need mentioning based on facts and circumstances.