According to the PoSH Act, sexual harassment includes unwanted behaviours such unwanted physical contact and approaches, demands for sexual favours, showing pornography, making sexually charged comments, and other unwanted behaviours that are physical, verbal, or nonverbal in character.
In a recent ruling, the Supreme Court criticised the shortcomings in the creation of Internal Complaints Committees (ICC), citing a newspaper report that 16 of the country’s 30 national sports federations had not yet established an ICC.
One of the issues is that the Act does not adequately address accountability by omitting to identify who is responsible for making sure that workplaces comply with the Act’s requirements and who can be held accountable if those requirements are not fulfilled.
Points to Ponder:
What is the PoSh Act?
According to the PoSH Act, sexual harassment includes unwanted behaviours such unwanted physical contact, unwanted sexual approaches, demands or requests for sexual favours, remarks with sexual overtones, the viewing of pornographic material, and any other unwanted sexual behaviour whether it be physical, verbal, or nonverbal.
Regardless of their job status, including regular, temporary, contractual, ad hoc, daily wage workers, apprentices, interns, and even those hired without the major employer’s knowledge, all women employees are covered under the POSH Act. Both the governmental and private sectors in India are affected.
All female employees have the right to file a complaint about sexual harassment in the workplace, regardless of whether they are working on a regular basis, on a temporary basis, under a contract, on an as-needed or daily salary basis, as apprentices or interns, or even without the knowledge of their primary employer.
It offered a thorough legal framework for discouraging, outlawing, and addressing sexual harassment and replaced the Vishakha Guidelines.
The statute covers female employees, interns, and volunteer workers and is applicable to all workplaces, including those in the public and commercial sectors.
The act involves unwanted physical, verbal, nonverbal, or online action of a sexual nature when defining sexual harassment.
It replaced the Vishakha Guidelines and provided a comprehensive legislative framework for deterring, banning, and dealing with sexual harassment.
The law applies to all workplaces, including those in the governmental and private sectors, and protects female employees, interns, and volunteers.
When defining sexual harassment, it must contain unwanted physical, verbal, nonverbal, or online conduct that is of a sexual character.
How was the PoSH Act formed?
Bhanwari Devi, a social worker with the Rajasthani government’s Women’s Development Project, was gang-raped in 1992 by five men when she attempted to stop the marriage of a one-year-old girl.
The SC established a set of guidelines in 1997 known as the Vishakha Guidelines after observing the lack of any law “enacted to provide for effective enforcement of the basic human right of gender equality” guarantee against “sexual harassment at workplaces” while hearing petitions submitted by activist groups against the crime.
The Vishakha case, in which the court issued them, is whence the rules got their name.
The rules had to be scrupulously followed at every job until a law could be passed to adequately handle the problem.
They were created with the intention of filling the legal gap and offering a framework for combating and preventing sexual harassment in the workplace.
The regulations required all employers and those in charge of workplaces to take the necessary precautions to prevent sexual harassment.
They mandated that employers set up a system for complaints, investigations, and resolutions, such as Internal Complaints Committees (ICCs) at work.
The policies placed a strong emphasis on the employer’s responsibility to maintain a secure workplace and advance gender equality.
Obligations of Employers:
Every workplace with more than 10 workers must have an internal complaints committee (ICC) set up to handle sexual harassment claims.
Additionally, they must create an environment that is secure and supportive of work, run awareness campaigns, and guarantee the complainant’s confidentiality and lack of reprisal.
Additionally, the Act requires every district in the nation to establish a local committee to handle complaints from women working in informal employment, such as domestic workers, home-based business owners, volunteer government social workers, and other jobs with less than 10 employees.
Hurdles to the Act’s Implementation
Inadequate constitution of Internal Complaints Committees (ICCs):
According to the PoSH Act, any company with ten or more employees must set up an ICC to address claims of sexual harassment in the workplace.
Numerous national sports federations in India were deemed to have violated the law by failing to create ICCs, according to the Supreme Court.
Even when ICCs were constituted, they frequently lacked the required number of members or a required external member, which indicates poor constitution.
The PoSH Act’s ability to handle sexual harassment in the workplace is compromised by these flaws in ICCs.
Lack of clarity and accountability:
The PoSH Act is vague on who is in charge of making sure the Act is followed in the workplace.
Due to this ambiguity, it is unclear who can be held accountable if the Act’s guidelines are not followed.
Without clear responsibility, organisations might not take the essential actions to stop and deal with workplace sexual harassment.
Inaccessibility to women workers in the informal sector:
Women working in the informal sector are not protected by the PoSH Act because it only applies to formal sector firms with 10 or more employees.
Given that women make up a disproportionate amount of the unorganised sector and are thus more likely to experience sexual harassment at work, this is a serious matter.
The PoSH Act’s exclusion of women working in the unorganised sector from its protection emphasises the necessity for comprehensive legislation that safeguards all employees, regardless of the industry in which they are employed
Underreporting of sexual harassment cases:
Experts have noticed that a number of factors, including fear of retaliation, lack of faith in the system, and the power structures of organisations, contribute to the vast underreporting of sexual harassment cases in the workplace.
The PoSH Act tries to solve this problem by giving women a way to lodge complaints with civil entities like their place of employment.
The lack of clarity in the law over how to conduct such inquiries, however, and the ineffective operation of the court system have led to duplicate access restrictions.
This undermines the PoSH Act’s ability to effectively handle sexual harassment in the workplace and emphasises the need for more user-friendly complaint processes.
