Safe Workplaces, Strong Workforces: Navigating The Posh Act's Fundamentals
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In today's rapidly evolving professional landscape, ensuring the safety, well-being, and dignity of employees, especially women employees, is paramount. Recognizing this imperative, the Indian legislature has introduced the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, popularly known as the POSH Act. The POSH Act basically strives towards furnishing a safe and health workplace environment for the female employees at different workplaces across the nation.
This landmark legislation represents a pivotal stride not only in curbing the horrendous issue of sexual harassment, but also in establishing a conducive work environment that empowers women and make them feel safe. In this comprehensive exploration, we delve into the essential and fundamental components of the POSH Act and its transformative role in fostering secure workplaces and resilient workforces.
POSH Act: A Holistic Approach to Prevention
The POSH Act came into force in 2013 and it became a watershed moment for women employees and their safety and well-being at workplace in India.
The genesis of the POSH Act is the landmark case of Vishakha & Ors. vs. State of Rajasthan & Ors.[1], where the Supreme Court of India has laid down various guidelines and parameters to curb sexual harassment of women employees at workplaces across the nation. The Indian Parliament thereafter in order to incorporate the guidelines laid down by the Supreme Court in the case of Vishakha (Supra) has enacted the POSH Act.
The POSH Act signifies the legislative acknowledgment that a safe and respectful work environment is not only a fundamental right but a critical catalyst for women to thrive professionally. The Act's significance extends beyond mere compliance of some legal checklist, as it endeavors to ingrain a culture of respect, inclusivity, and zero tolerance for harassment. As we navigate the essentials of the Act, a fundamental understanding of its provisions holds profound significance in modern workplaces.
Defining Sexual Harassment: A Broad and Inclusive Approach
At the core of the POSH Act's efficacy lies with its comprehensive definition of sexual harassment. Section 2(n) of the Act defines sexual harassment to encompass unwelcome physical, verbal, or non-verbal conduct of a sexual nature that creates a hostile, intimidating, or offensive work atmosphere.
This expansive definition ensures that no form of harassment goes unnoticed and/or unpunished; encompassing everything from explicit advances to subtle but equally harmful behavior of the employees.
It is submitted that the POSH Act has rightly not restricted the definition to some certain hostile acts of sexual harassment. It paves way for the judiciary and the concerned authorities to consider each case on its own merits and seriousness instead of imposing a straight-jacket formulae.
Applicability Across the Spectrum: Workplaces Covered by the POSH Act
The efficiency of the POSH Act lies in its universality, encompassing a diverse array of workplaces, regardless of its size and nature. From corporate offices to factories characterized by industry, educational institutions shaping young minds, and healthcare facilities nurturing health, and so many other forms of workplaces; the POSH Act's umbrella of protection extends seamlessly. It leaves no room for ambiguity, applying not only to regular employees but also to encompassing interns, contractors, and even visitors—clients or customers—who visit these realms.
Internal Complaints Committee (ICC): A Pillar of Protection
A fundamental and robust feature of the POSH Act is the establishment of the Internal Complaints Committee (herein after referred to as “the ICC”). Mandated by Section 4 of the Act, every organization with ten or more employees is required to constitute an ICC.
This committee stands as the foremost bastion against harassment, entrusted with the critical responsibility of receiving, investigating, and redressing complaints in a manner that is equitable, transparent, and just.
Every workplace having 10 or more employees is obligated to constitute an ICC headed by a senior woman employee of the concerned workplace, and one person not related to the workplace among other members of the ICC. It is submitted that atleast half of the total strength of the ICC shall be women.
Local Complaints Committee (LCC): Extending Protection to Smaller Workplaces
As stated earlier, that ICC is a mandate where there are 10 or employees. Thus, the organizations/ workplaces having less than 10 (ten) employees can easily dodge the mandate and effectiveness of ICC. In order to curb this gap, the POSH Act extends its protective arm by introducing the concept of Local Complaints Committee (herein after referred to as “the LCC”).
As elucidated under section 6 of the POSH Act, every District Officer shall constitute an LCC to receive the complaints of sexual harassment from the places having no ICC on the account of having less than 10 (ten) employees or is the complaint is against the employers himself.
It is submitted that India is witnessing a wave of entrepreneurship and start-ups and such organizations may not have 10 (ten) employees. Thus, the constitution of LCC is more than a welcome step while combatting with the horrendous issue of sexual harassment at workplace.
Protection Against Retaliation: Encouraging Reporting
The Act strategically weaves in provisions to incentivize reporting by ensuring protection against retaliation. Under Section 13(2), the Posh Act explicitly prohibits any adverse action against the complainant. This resolute stance affirms that the aggrieved women can come forth with their grievances and complaints without the looming dread of repercussions, thereby fostering a culture of openness and accountability.
However, at the same time the POSH Act also makes sure that false, baseless, vexatious, and ill motived complaints get suitably punished in order to avoid misuse of the provisions[2].
Confidentiality: Safeguarding Privacy
Privacy and dignity of a complainant are safeguarded under the POSH Act[3], which lays great emphasis on maintaining confidentiality throughout the complaint process. This provision allays concerns about exposure and encourages more individuals to step forward, assured that their complaints and grievances will be treated with the utmost sensitivity.
Penalties for Non-Compliance: Ensuring Accountability
The POSH Act underscores its commitment to compliance by establishing penalties for organizations that falter in implementing its provisions. As highlighted under section 26, the penalties range from fines to the license cancellation.
This stern stance reinforces the urgency of cultivating a workspace that adheres to the POSH Act's tenets, ensuring accountability from the organizational echelons to achieve the aim of safe, and comfortable work environment for women.
Training and Awareness: Promoting Prevention
Integral to the POSH Act is the knowledge and awareness of the legal mechanism and the remedies provided against the sexual harassment at workplaces. The POSH Act[4] mandates organizations to conduct regular training programs for their employees. These initiatives serve to equip individuals with an understanding of their rights, responsibilities, and avenues for recourse, fostering a collective vigilance against sexual harassment at workplaces.
Recent Developments: Supreme Court's Imperative Directions
The aim enshrined under the POSH Act is entirely based upon its effective, regular, and wide implementation. However, it is observed that the POSH Act, due to one reason or the other, could not be effectively incorporated by many workplaces.
At this juncture it is imperative to highlight the case of Aureliano Fernandes vs. State of Goa & Ors.[5], where the Hon’ble Supreme Court of India has highlighted serious lapses in the enforcement of the POSH Act. Expressing its concern, the Apex Court drew attention to a national daily report revealing that out of 30 national sports federations, 16 federations have not even constituted ICC. Further, where ICCs exist, they often lack the stipulated number of members or the mandatory external member, presenting a glaring gap in implementation.
The Court observed, “Being a victim of such a deplorable act not only dents the self-esteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many of them even drop out from their job.”
Furthermore, the Supreme Court issued a set of directions to fortify the implementation of the POSH Act. Recognizing the profound impact of sexual harassment on victims' self-esteem, mental health, and physical well-being, the Court emphasized the need for robust enforcement to provide a safe and secure workplace environment. To fulfill the promise of the POSH Act, the Court issued several directives including the following: -
Conclusion: A Holistic Vision for Safer Workspaces
As the POSH Act's impact continues to unfold, it is evident that its essence goes beyond legislative text as it signifies a shift in societal consciousness. It embodies a commitment to creating work environments that transcend mere legality and venture into the realm of ethics, dignity, and respect. The POSH Act is not just about punishing perpetrators; it is about empowering individuals to rise against harassment, fostering workspaces that celebrate diversity, and ensuring that women can unleash their potential unhindered by fear or discrimination. In embracing the POSH Act's essentials, organizations embark on a journey toward safe workplaces and strong workforces, ultimately contributing to a more inclusive and progressive society.
References
[1] (1997) 6 SCC 241
[2] § 14 of the POSH Act
[3] § 6 of the POSH Act
[4] §§ 10, 20, and 24 of the POSH Act
[5] 2023 SCC OnLine SC 621
