The Act propelled India to a select league of nations1 that has outlawed workplace sexual harassment through national legislation. The Act, along with the Rules2 (collectively, the POSH Law), aims to foster a safe and secure environment for women by preventing, prohibiting, and redressing instances of sexual harassment at workplaces in India.
Genesis of the POSH LawWomen in India are recognized and granted protection under the Constitution of India. The preamble to the Constitution, inter alia, guarantees social, economic, and political justice, equality of status, opportunity, and the dignity of the individual.
Notwithstanding these avenues of protection, for a long time working Indian women did not practically receive the protections granted under the Constitution and national or state legislations. It was obvious that women needed specific rules to enforce their rights. The Supreme Court of India, in Vishaka v. State of Rajasthan,3 observed that equality in employment cannot be achieved if women are subjected to gender specific violence at the workplace, such as sexual harassment. The Vishaka ruling is easily among the landmark judgments that changed India. Indian legal luminary Zia Mody says: “Judicial activism reached its pinnacle in Vishakha v. State of Rajasthan.”4
[Related: Sexual Harassment Law in India: Redefining Workplace Dynamics]
While delivering the judgment, the apex court went on to issue guidelines for employers that would ensure equal working conditions for women, including protection from workplace sexual harassment. Prior to the Vishaka judgment, a woman aggrieved by any act of sexual assault or harassment had to approach law enforcement authorities under the Indian Penal Code (specifically Sections 354 and 509). The guidelines laid down by the apex court, known as the Vishaka Guidelines (the Guidelines), were the culmination of a long fight for justice by a gang rape victim. Bhanwari Devi, a social worker for the Women Development Programme in the Indian state of Rajasthan, was brutally raped in 1992 when she opposed a child marriage in her village. Feudal patriarchs who took exception to her crusader efforts allegedly committed the rape. The rape and the victim’s subsequent futile quest for justice garnered widespread attention and represented a watershed moment for women’s rights in India.
Bhanwari’s cause was taken up by Vishaka, a women’s welfare group that led public interest litigation, ultimately resulting in the Guidelines. The Guidelines put the onus of ensuring a safe workplace environment squarely on the employer and laid down, for the first time, a mechanism for employers to address complaints relating to sexual harassment, including the constitution of a committee to evaluate such complaints. The Guidelines were accorded legal status by the apex court until a definitive law would be enacted by the legislature.
“Vishaka triggered a national consciousness on an issue that was, until then, not given its due importance. Following up on Vishaka, the Supreme Court of India enlarged the scope of sexual harassment by ruling that physical contact was not essential to be considered an act of sexual harassment.
Vishaka triggered a national consciousness on an issue that was, until then, not given its due importance. Following up on Vishaka, the Supreme Court of India enlarged the scope of sexual harassment by ruling that physical contact was not essential to be considered an act of sexual harassment. The apex court went on to describe sexual harassment as a form of sex discrimination that affects the employment of women employees and unreasonably interferes with their work performance, ultimately creating an intimidating workplace environment.5 Upset with the tardy enforcement of the Guidelines, the apex court directed the Indian states to implement sufficient mechanisms to ensure effective implementation of the Guidelines. The apex court observed that “The implementation of the guidelines in Vishaka has to be not only in form but substance and spirit so as to make available safe and secure environment to women at the workplace in every aspect and thereby enabling the working women to work with dignity, decency, and due respect.”6
The above judicial activism notwithstanding, it took a decade after Vishaka for the legislature to initiate the crafting of a definitive law on workplace sexual harassment. The initial draft, first introduced in 2007, had to wait another six years to receive the assent of the legislature. The Guidelines were superseded by the POSH Law in December 2013.
ApplicabilityThe Act recognizes that sexual harassment constitutes a violation of fundamental rights of women and their right to life and to live with dignity and carry on any profession, trade, or business in an environment free from sexual harassment. POSH Law affects all of India and is not gender neutral — it only protects women. A man who is a victim of sexual harassment at the workplace is not entitled to invoke POSH Law, rather he must rely on company policies that prohibit harassment of any nature. However, many organizations have opted to make their POSH policy gender neutral in order to ensure an equal representation of the workforce. POSH Law applies to both organized and unorganized sectors.
This article has primarily focused on the Internal Committee (IC); however, there is also a provision in the POSH Law for the constitution and empowerment of the Local Committee (LC). The LC is only invoked when a workplace has fewer than 10 personnel and a complaint needs adjudication or the complaint is against the employer itself. Given most organizations have 10 or more personnel and the complaints are often between employees themselves, the IC and its role and function is the focus of this article.
Sexual harassmentThe Act defines “sexual harassment” expansively and includes the ensuing unwelcome acts:
- Physical contact and advances;
- A demand or request for sexual favors;
- Making sexually colored remarks;
- Showing pornography; or,
- Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.
- Promise of preferential treatment in employment;
- Threat of detrimental treatment in employment;
- Threat about present or future employment;
- Creating an intimidating or offensive or hostile work environment; and,
- Humiliating treatment potentially endangering health or safety.
From the definition, it is evident that what constitutes sexual harassment could be very subjective under POSH Law. This belies the general notion that some physical contact or at least some words, spoken or written, are a prerequisite to any conduct or behavior being characterized as sexual harassment. The judiciary has acknowledged the subjective nature of sexual harassment and stated:“A complete understanding of the complainant’s view requires... an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women... Men tend to view some forms of sexual harassment as ‘harmless social interactions to which only overly-sensitive women would object’. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.”7
While certain forms of sexual harassment are easily distinguishable for their sheer egregiousness, such as sexual assault, other forms may tread a thin line. Whether a particular behavior amounts to sexual harassment depends on the context in which such behavior takes place.
“In-house legal departments can be instrumental in assisting the IC members with interpreting the Act and the Rules judiciously, while ensuring the IC is not impeded in its investigation of the claim.
WorkplaceInterestingly, the Act introduces the concept of an “extended workplace.” In addition to the office of the employer or employee, any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment, will also constitute a workplace. The most commonly seen situations of an extended workplace are those scenarios where an official event is taking place in a social setting, but endorsed or financed by the employer, in which case, such events will also be deemed a workplace under POSH Law.
Aggrieved womanThe Act defines an “aggrieved woman” as a woman of any age, whether employed or not, who has been subjected to sexual harassment. Given that the definition does not necessitate the woman to be an employee, even a customer or a visitor who feels sexually harassed at any workplace can claim protection under POSH Law. To ensure the above definition applies without restriction at the workplace, the definition of an “employee” under the 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 workers, coworkers, 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.
Duties of employersPOSH Law mandates every employer to:
- Provide a safe working environment, which shall include safety from persons coming to the workplace;
- Display the penal consequences of workplace sexual harassment, and the order constituting the IC, at any conspicuous place at the workplace;
- Conduct training programs to create awareness and sensitization among employees at all levels (i.e., managers and non-managers). Given that the spirit of the above provision in awareness, a practical reading of the POSH Law would require that attendance be made mandatory, and human resources (HR) teams should see to it that any unjustifiable absence is rectified and the absentee employee is made to attend such awareness programs immediately. The preferred mode of training is through online webinars, at least once a quarter, though it is recommended that employers, wherever feasible, conduct at east one workshop in person in a calendar year, over and above the quarterly webinar, in order to demonstrate the practical aspects of POSH Law at the workplace;
- Conduct orientation programs for the members of the IC;
- Provide necessary facilities for the members of the IC and assist in any manner required to enable the aggrieved woman to secure justice under the IPC; and,
- Monitor the timely submission of the reports by the IC and assist in any manner required to enable the aggrieved woman to secure justice under the IPC.
- Publish the POSH Law related policies over the company intranet and/or services rules, which shall include the contact details and names of the IC members;
- Carry out capacity building and skills development programs for IC members; and,
- Use modules published by the state governments to generate awareness amongst employees and may involve collaborations with urban local bodies to promote dialogue on sexual harassment, including its prevention, prohibition, and redressal.
Redressal of complaints: ICEvery workplace that has a minimum of 10 employees shall mandatorily set up an IC with women constituting at least half of the IC’s members. The IC’s key mandate is to oversee the implementation of the organization’s POSH Law policy by ensuring a work environment free of sexual harassment and providing an effective redressal mechanism for any complaints of sexual harassment against women. The IC shall comprise a senior level woman employee as the chairperson or presiding officer, a minimum of two employees committed to uphold women’s rights, and another member from a NGO or an association dedicated to women’s welfare or conversant with issues of sexual harassment. It is pertinent to note that where an employer or organization has multiple locations, with each location having 10 or more personnel, it is mandatory to set up an IC in each such location. The term of IC members shall not exceed three years and a minimum of three members, including the chairperson, are required to conduct an investigation into any complaint.
The Act has afforded the IC the status of a Civil Court and is empowered to summon or enforce the attendance of any person, order the production of documents, and perform any other matter(s) as may be prescribed.
“Given the need to interpret complex laws and rules, it is reasonably common to have in-house counsel on the IC.
Given the subjective nature of sexual harassment, it is critical to get the composition of the IC right. Organizations need to ensure that the IC members are selected, to the extent practically possible, on their commitment to the cause of women. While the Act itself is silent on what constitutes “commitment to the cause of women,” it’s generally understood that the phrase is equated with, inter alia, upholding or championing women’s rights, including their right to a work environment without threats or intimidation of a sexual nature. Since the IC o en has to deliberate on employment matters, it would do well to select members who have sound understanding of HR a airs and the overall business context as well. It is fairly common to find experienced HR/senior business/ functional leaders heading ICs of several organizations. This is logical considering that the IC has to balance the legitimate interests of the woman employee, communicate the overall message to the workforce, and, at the same time, provide recommendations or sanctions with the overall goal of complying with the POSH Law. The IC must treat sexual harassment as misconduct under the applicable services rules and initiate action for such misconduct, which could range from written warnings to terminating the accused, who is found guilty. While there is no “one size fits all” approach, it would be prudent for the IC to view things as holistically as possible and adopt an approach that is sufficiently balanced and fair to both the accuser and the accused.
While constituting an IC is one thing, ensuring that the IC does its job impartially and to the best of its abilities can be an entirely different aspect. is is precisely where the training of IC members assumes great significance. Employers have to take great care to tailor the training programs specifically for the IC whose acquaintance with the nuances of the POSH Law is critical for its seamless functioning. Sensitization and orientation workshops for the IC would go a long way in this regard. Employers may consider inviting legal professionals, who have managed women’s rights issues, or representatives of organizations espousing women’s rights for such sensitization and orientation programs.
In-house legal departments can be instrumental in assisting the IC members with interpreting the Act and the Rules judiciously, while ensuring the IC is not impeded in its investigation of the claim. Given the need to interpret complex laws and rules, it is reasonably common to have in-house counsel on the IC. Aside from providing expert legal advice, the in-house counsel should endeavor to familiarize the IC with the rules of evidence specifically on what does or does not constitute indisputable evidence. The evidence to be collected varies from case to case. Typically, it involves emails, SMSs, WhatsApp, and other social media messages or images, witness statements, etc. In the absence of any documentary evidence or witness statements, IC should be encouraged to probe whether adequate circumstantial evidence subsist to support the claim. Wherever necessary, IC should not hesitate to seek outside support, including forensic help.
“The POSH Law does not specifically mandate the manner in which the IC should meet, therefore the POSH Law affords the IC sufficient flexibility to meet at their convenience, including virtually, to deliberate on any aspect of the organization related to the area of sexual harassment, including complaint(s).
How often should the IC meet?As per the POSH Law, the mandate is to meet whenever a complaint is lodged with the IC and follow the timelines stated in the section below. However, it is pertinent to note that when the IC was originally brought into force by the Act, it was seen by employers as a mechanism to meet only when complaints are registered. However, the lawmakers quickly realized that the IC, and more importantly the Act, was not only for the redressal of sexual harassment complaints, but also for the prevention or prohibition of sexual harassment. Therefore, keeping this legislative intent in mind, even if there are no complaints, it is a good practice for the IC to meet at reasonable intervals. The POSH Law does not specifically mandate the manner in which the IC should meet, therefore the POSH Law affords the IC with sufficient flexibility to meet at their convenience, including virtually, to deliberate on any aspect of the organization related to the area of sexual harassment, including complaint(s). For example, IC members who are on official travel may log in (via audio or video) from around the globe and partake in the deliberations. Additionally, it’s not mandatory that every IC member be present whenever the IC meets to address a compliant. The requirement is to have a minimum quorum to conduct the meeting. For example, IC members do not need to be physically present to take in the deliberations and the full committee does not need to be present to address a complaint. A minimum quorum is sufficient to conduct the meeting.
Procedure for resolving claims in a timely manner
The Act has laid down specific timelines for all claims arising under the POSH Law, ranging from the receipt of the claim, due inquiry, testimony and evidence collection, the adjudication of the claim and its final resolution and implementation, and the possibility of appeals on specific issues. The IC has also been empowered to refer claims to the local police authorities should a claim attract the provisions of the IPC.Specifically, on the timelines, the below procedure is outlined under the POSH Law:
- Filing of the complaint — the aggrieved woman is required to file the complaint with the IC, in writing, within three months from the date of the alleged incident of sexual harassment, or three months from the date of the last alleged incident of sexual harassment, if there’s a series of incidents. The IC, at its sole discretion, is empowered to grant extensions up to three additional months if the circumstances are deemed justified. Further, should the aggrieved woman have any physical or mental incapacity, including death, owing to which she is unable to file the complaint, her legal heir, coworker, relative, friend, or a person with knowledge of the incident or such other person prescribed by the Rules is permitted to make the complaint on behalf of the aggrieved woman. While anonymous complaints are not given recognition under POSH law, many organizations allow filing of anonymous complaints, thereby acknowledging that it could be embarrassing for an aggrieved woman to disclose her identity while lodging the complaint. However, at all times, the IC must ensure that any claim is adjudicated in accordance with the principles of natural justice.
- Completion of the inquiry — All complaints submitted to the IC must be adjudicated and the recommendations finalized by the IC within 90 days of the receipt of the complaint.
- Submission of report — The IC must submit the report within 10 days of completion of the inquiry to the employer. Further, if the parties to the incident so desire, the report can be made available to such parties.
- Implementation of recommendations — The employer must implement the recommendations shared as part of the report prepared by the IC within 60 days of receipt of such recommendations by the employer.
- Appeals — All appeals under the Act must take place within 90 days of the recommendations being formulated on specific issues only, such as (a) no sanctions/sanctions of misconduct or deductions of wages; (b) false/malicious complaints or false witnesses or forged documents; (c) penalty for contravening the non-disclosure guidelines of the Act; or (d) non-implementation of recommendations.
False or malicious complaintsDuring the inquiry process laid out above, should the IC conclude that (1) the allegation against the respondent is malicious; (2) the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false; or (3) the aggrieved woman or any other person making the complaint has produced any forged or misleading document, then the IC may recommend to the employer to take action against the woman or the person who has made the complaint. However, a mere in- ability to substantiate a complaint or provide adequate proof need not attract action against the complainant as being malicious or false.
Further, should the IC conclude that any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness to take action against the witness.
Conciliation processThe POSH Law also provides for conciliation between the interested parties in its provisions. This option is commonly seen as an attempt by the legislature to ensure the aggrieved woman and the respondent are able to settle the incident(s) of alleged sexual harassment in an amicable manner. On a practical level, such conciliatory efforts are ordinarily adopted when the complaint of sexual harassment is centered around a misunderstanding, rather than an egregiousness error of the respondent.
On the conciliation process itself, the IC, may, before initiating an inquiry and at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation. However, no monetary settlement shall be made as a basis of the conciliation.
Interim reliefThe POSH Law has also delved into empowering the IC to grant interim reliefs during the pendency of an inquiry. The purpose behind this approach, and if one were to carefully see the timelines for an inquiry mentioned above, it usually takes between three to six months for the entire matter to resolve itself. However, the aggrieved woman may have to be in contact or work with the respondent during this time and this can be very disturbing for the aggrieved woman. To prevent a hostile work environment, the IC is empowered, at the written request of the complainant, to recommend any of the following interim reliefs during the inquiry: (1) transfer the complainant or respondent to any other workplace; (2) grant leave to the aggrieved woman for up to three months in addition to her entitled leave; (3) restrain the respondent from reporting on the work performance or writing any confidential report in relation to the aggrieved woman; or (4) restrain the respondent from supervising academic activities of the aggrieved woman, should the aggrieved woman be a part of an educational institution.
Sanctions under POSH LawContravention of the provisions of the POSH Law, including failure to constitute the IC, will expose the employer to a fine that may extend to INR 50,000 (approx. US$750). For subsequent offenses, there are higher fines and sanctions. However, what is pertinent to note under the POSH Law is that any offense committed thereunder shall be non-cognizable.
Though the penalty per se may appear trivial, organizations run the risk of having their business licenses and registrations cancelled for continuing non-compliance. Additionally, if a court takes cognizance of an offense under the POSH Law, and there is a higher punishment under another legislation (in force at the time) for such offense, the court can take due cognizance of such higher punishment while awarding the punishment.
Reporting requirements under POSH LawIt’s mandatory for the IC to prepare, in each calendar year, an annual report and submit it to the employer. The report should incorporate the following:
■ Number of complaints of sexual harassment received in the year;
■ Number of complaints disposed of during the year;
■ Number of cases pending for more than 90 days;
■ Nature of action(s) taken by the employer; and,
■ Number of workshops or awareness programs conducted against sexual harassment.
The annual report should be pre- pared by the IC who shall forward it to the employer and the local labor district officer. There is also an obligation under the Act for the employer to include the above POSH Law related annual report as part of its overall annual company report. Where such overall annual company report is not required, the employer will notify the number of cases to the local labor district officer. Failure to submit the annual report will invite the same penalties as the failure to constitute the IC does.
ConclusionIndia’s growth, and its increased efforts to honor the tenets of its Constitution, show its commitment to its citizens’ fundamental rights. The POSH Law is one such example, especially given the genesis of this legislation from the early 1990s. As India progresses as a nation, including in its economic policies, it is natural for organizations and work- places to stay abreast with the tide of modern development and encourage work environments driven solely by merit and rid all forms of discrimination. The POSH Law is one such step to such meritocracy and in time shall yield its benefits for all women who are part of the workforce.
1 Currently, there are just over 50 nations that have prohibited workplace sexual harassment through national laws.
2 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (the Rules).
3 AIR 1997 SC 3011.
4 Ten Judgments that Changed India.
5 Apparel Export Promotion Council v. A.K Chopra (1999) 1 SCC 759.
6 Medha Kotwal Lele v. Union of India (2013) 1 SCC 297.
7 Dr. Punita K. Sodhi v. Union of India & Ors. W.P. (C) 367/2009 & CMS 828, 11426/2009.