I) Background of the Act
Workplace sexual harassment in India, was for the very first time recognized by the Supreme Court of India (“Supreme Court”) in its landmark judgment of Vishaka v. State of Rajasthan (“Vishaka Judgment” or “Guidelines”), wherein the Supreme Court framed certain guidelines and issued directions to the Union of India to enact an appropriate law for combating workplace sexual harassment.
Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work (whether she is drawing salary or honorarium or voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace. It is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work (including recruiting and promotion), or when it creates a hostile working environment. Adverse consequences might result if the victim does not consent to the conduct in question or raises any objection thereto.
The Guidelines puts the onus of ensuring a safe workplace environment squarely on the employer and recommended constitution of a committee to evaluate such complaints. These Guidelines were accorded legal status by the Apex Court until a definitive law was enacted by the Legislature.
II) Provisions in the Act
I) Sexual Harassment
- wide enough to cover both direct or implied sexual conduct which may involve physical, verbal or even written conduct.
- the conduct is unwanted and unwelcome by the recipient.
- includes “quid pro quo” sexual harassment, a form of sexual blackmail (which if translated in English, would mean ‘this for that’).
- includes reference to creating an ‘intimidating, offensive or hostile working environment’.
- Covers both public and private sector, organized and unorganized
- hospitals, nursing homes, educational institutions, sports institutes,
- any place visited by the Employee during the course of employment including the transportation
- dwelling place or house too
All over India and all workplaces irrespective of female employees or not
Internal Committee (IC) under the Act
- Applicable to all workplaces employing ten or more employees by an order in writing by the employer
- separate committees for each of its offices or units in workplace in order to strictly comply with the letter of the law
- IC to consist of a Presiding officer (Who shall be a woman employed at a senior level at workplace), 2 members form amongst employees committed to cause of women and 1 member from NGOs or associations committed to cause of women
- at least ½ of the total members nominated shall be women
Process of inquiry under the Act
Once a compliant is received in writing by IC, IC has to conduct enquiry and allow both parties Complainant and Respondent to present their case, examine witness and have fair, impartial proceedings. The most crucial part is that IC should follow principles of natural justice and be totally unbiased.
IC Members can also support conciliation between the Parties, in case complainant desires so.
It is the responsibly of IC to maintain confidentiality and that Complainant be assured non retaliation.
Timeline of 3 months is provided to IC to complete proceedings and issue the final report.
According to the National Commission for Women data, there has been an increase in the number of crimes against women following the lockdown. Keeping in mind the spirit of the legislation, the “New Normal” of work from home and in order to ensure that women are given protection from unwanted sexual advances in cyberspace, a dynamic approach needs to be adopted by widening the scope of the definition of workplace to include virtual offices or work from home. While many companies have complied with the Act and constituted POSH committees, the actual success will require a societal change in the attitude towards women wherein more women will come forward to report instances of sexual harassment without fear of reprisal.
Government has also introduced measures to popularize the Act and ensure strict adherence. The ‘SHe-Box’, is an online portal that directly forwards complaints to the IC of the employer or organisation, was launched by the Indian Ministry for Women in November 2017.The portal also provides a forum outside the organisation for female employees to complain to.