By Madiya Mushtaq
The Prevention of Sexual Harassment Act of 2013 is a landmark legislation that seeks to address the pervasive issue of sexual harassment in various spheres of society. Recognizing the urgent need for legal protection and redressal mechanisms for victims, this act was enacted to ensure a safe and conducive environment, free from sexual harassment, for everyone, regardless of gender.
Sexual harassment is a grave violation of an individual’s rights and dignity, often resulting in profound physical, emotional, and psychological consequences. It can occur in workplaces, educational institutions, public spaces, and even within the family. The Prevention of Sexual Harassment Act of 2013 acknowledges the detrimental impact of such behavior and endeavors to establish a robust framework to prevent and address instances of sexual harassment effectively.
This legislation defines sexual harassment comprehensively, encompassing a wide range of unwelcome acts or behavior, including physical advances, verbal or non-verbal conduct, or any form of sexually colored remarks or jokes. It recognizes that sexual harassment is not limited to physical contact but extends to creating a hostile, intimidating, or offensive environment that interferes with an individual’s safety, dignity, and well-being.
One of the crucial provisions of the act is the establishment of Internal Complaints Committees (ICCs) in organizations with ten or more employees. These committees play a pivotal role in handling complaints related to sexual harassment. They are responsible for receiving, investigating, and resolving such complaints in a fair and impartial manner. The ICCs serve as a crucial avenue for victims to seek justice and obtain appropriate redressal within their workplaces.
Furthermore, the act also emphasizes the need for awareness and sensitization programs to educate employees and students about their rights, as well as the consequences and implications of sexual harassment. It encourages employers and educational institutions to foster a culture of zero-tolerance towards sexual harassment, thereby creating an atmosphere that promotes gender equality, respect, and dignity for all.
The Prevention of Sexual Harassment Act of 2013 represents a significant step forward in addressing the pervasive issue of sexual harassment in India. By providing legal protection, establishing redressal mechanisms, and promoting awareness, this act seeks to empower victims, hold perpetrators accountable, and create a safer and more inclusive society. Its implementation is crucial in ensuring that individuals can live and work free from the fear and trauma of sexual harassment, fostering an environment that upholds the principles of equality, dignity, and respect for all.
Brief Overview of the Provisions
The Prevention of Sexual Harassment Act of 2013 encompasses several sections that outline the rights and responsibilities of victims and the procedures for dealing with instances of sexual harassment. Here is an overview of the key sections of the act and what a victim should do in case of being sexually exploited.
Definitions
This section provides definitions for various terms related to sexual harassment, including unwelcome acts, physical contact, verbal or non-verbal conduct, and the creation of a hostile work environment.
Constitution of Internal Complaints Committee (ICC)
According to this section, organizations with ten or more employees are required to establish an ICC. The ICC is responsible for receiving complaints, conducting inquiries, and recommending action against the perpetrator.
Complaint of sexual harassment
According to Section 9 of the POSH Act, complaints of sexual harassment at work may be made to the Internal Committee or Local Committee. The process is as follows:
Within three months of the occurrence date and, in the case of repeated incidences, within three months of the most recent incident, an aggrieved woman may report sexual harassment at work.
If the victimised lady is unable to file a complaint within the allotted three months, the Internal Complaints Committee or Local Complaints Committee may extend the deadline. The committee must be convinced that the woman was unable to submit a complaint within the allotted time frame due to the circumstances. According to Section 9 of the POSH Act, complaints of sexual harassment at work may be made to the Internal Committee or Local Committee. The process is as follows:
Within three months of the occurrence date and, in the case of repeated incidences, within three months of the most recent incident, an aggrieved woman may report sexual harassment at work.
If the victimised lady is unable to file a complaint within the allotted three months, the Internal Complaints Committee or Local Complaints Committee may extend the deadline. The committee must be convinced that the woman was unable to submit a complaint within the allotted time frame.
Punishment and compensation:
According to the POSH Act, an employer may discipline an employee in the following ways for sexual harassment:
The penalty outlined in the organization’s service regulations;
There may be written apologies, warnings, reprimands, censures, withholding of promotions, pay increases, or increments, termination of the respondent’s employment, counselling sessions, or community service if there are no service rules in the organisation; and
Paying the woman who was wronged compensation by reducing the respondent’s salary (Section 13 of the POSH Act).
According to Section 15 of the POSH Act, harmed women may also get compensation. The following considerations must be made when calculating compensation:
With regard to medium-term strategy, the panel said, there is a need to review taxes on Masala bonds and international use of Real Time Gross Settlement (RTGS) for cross-border trade transactions and inclusion of INR as a direct settlement currency in the Continuous Linked Settlement (CLS) system.
Examination of taxation issues in financial markets to harmonise tax regimes of India and other financial centres and allowing banking services in INR outside India through off-shore branches of Indian banks were part of medium-term suggestion given by the Reserve Bank panel.
The Inter-Departmental Group (IDG) of the Reserve Bank of India (RBI) was formed in December 2021.
The objective of the IDG was to review the extant position of INR as an international currency and to frame a road map for the internationalisation of INR. The IDG has since submitted its report containing its final set of recommendations.
The report and its recommendations reflect the views of the IDG and do not in any way reflect the official position of the Reserve Bank of India. The recommendations of the report will be examined for implementation, it said.
The IDG said that over the long term, India will achieve higher level of trade linkages with other countries and improved macro-economic parameters, and INR may ascend to a level where it would be widely used and preferred by other economies as a ‘vehicle currency’.
• Affected employee’s mental trauma, pain, suffering, and emotional distress;
• The loss of career opportunities caused by sexual harassment;
• Physical and mental health treatment expenses incurred by the victim;
• Whether the alleged perpetrator has a high income or a high status; and
• Whether lump sum or instalment payments are feasible.
• A failure by the respondent to pay the aforesaid sum will result in the IC forwarding the order of recovery to the District Officer concerned.
False/ frivolous complaints:
Actions will be taken against complainants who “falsely or maliciously” invoke the provisions, according to Section 14 of the POSH Act. According to the POSH Act, disciplinary action can be taken against a complainant whose claims have been proven to be false, malicious, or made with knowledge that they are false in accordance with the service norms of the organisation. In cases where there are no service standards in place, the Act allows for disciplinary measures such as written apologies, warnings, reprimands, censure, withholding of promotions, withholding of raises and increments, terminating employment, going to counselling, and completing community service. The POSH Act makes it clear that a complaint does not necessarily have to be untrue or malicious just because there is not enough evidence to back it up. It is true that Section 14 appears to be a saving clause, but the language of the section is regarded as a deterrent in nature. It is possible to conclude from different perspectives that the provisions incorporated in Section 14 to punish false and malicious complaints or false evidence may deter frivolous complaints, but they may also deter genuine witnesses or complainants who may not collect sufficient evidence to prove their allegations.
What steps should a victim taken when being sexually assaulted
i. Recognize the harassment: Understand and identify the behavior as sexual harassment, whether it involves physical advances, unwelcome remarks, or creating a hostile environment.
ii. Document incidents: Keep a record of the incidents, including dates, times, locations, and any witnesses present. Maintain any related evidence such as emails, messages, or photographs, if applicable.
iii. Inform the appropriate authority: File a written complaint with the ICC or the LCC within the prescribed timeframe, providing a detailed account of the incidents and supporting evidence, if available.
iv. Cooperate in the inquiry: Participate in the inquiry process, provide relevant information, and cooperate with the ICC during the investigation.
v. Seek support: Seek emotional support from trusted friends, family, or support organizations. It is crucial to share the experience with someone who can provide guidance and empathy.
vi. Follow up: Stay informed about the progress of the inquiry and any action taken against the perpetrator. If unsatisfied with the outcome, consider filing an appeal with the Appellate Authority.
vii. Preserve confidentiality: Maintain the confidentiality of the proceedings and refrain from discussing the details of the case publicly, as it may hinder the investigation or legal processes.
It is important for victims to remember that they have the right to be treated with respect, dignity, and fairness throughout the entire process. Seeking legal advice or counseling services can also be beneficial in navigating through the procedures and coping with the emotional impact of the harassment.
Challenges for the implementation of the POSH Act:
The implementation of the Prevention of Sexual Harassment (POSH) Act in India faces several challenges. Some of the key challenges include:
• Lack of awareness: One of the significant hurdles is a lack of awareness about the provisions and requirements of the POSH Act among both employees and employers. Many individuals are unaware of their rights and the procedures for filing complaints, leading to underreporting and inadequate implementation.
• Inadequate training: Proper training and sensitization programs are essential for employees, employers, and members of Internal Complaints Committees (ICCs) to understand the nuances of sexual harassment, prevention strategies, and the process of handling complaints. Insufficient or inconsistent training can hinder effective implementation.
• Fear of retaliation: Victims of sexual harassment may fear retaliation, such as negative repercussions or professional consequences, for reporting incidents. This fear can discourage victims from coming forward, leading to underreporting and perpetuating a culture of silence.
• Ineffective Internal Complaints Committees (ICCs): The formation and functioning of ICCs pose challenges. Some organizations may not have well-constituted or active ICCs, or lack trained members who can handle complaints effectively. This can undermine the confidence of victims in the complaint redressal mechanism.
• Inadequate support systems: Victims of sexual harassment require supportive systems and mechanisms to assist them throughout the complaint process. Access to counseling services, legal aid, and protection against victimization are essential for ensuring the well-being and safety of victims.
• Delayed or ineffective redressal: The timely resolution of complaints is crucial for the effectiveness of the POSH Act. Lengthy and delayed inquiry processes can discourage victims and undermine their faith in the system. It is important to ensure expeditious and fair investigations and appropriate disciplinary action against perpetrators.
• Compliance issues: Some organizations may struggle with compliance, either due to a lack of understanding or unwillingness to adhere to the requirements of the act. This can result in inadequate implementation and insufficient measures to prevent and address sexual harassment.
• Limited awareness in informal sectors: The POSH Act primarily focuses on formal workplaces, leaving out individuals working in the informal sector, such as domestic workers, agricultural laborers, and daily wage earners. Extending awareness and protection to these sectors remains a challenge.
Addressing these challenges requires collective efforts from all stakeholders, including employers, employees, ICC members, and the government. Continuous awareness campaigns, robust training programs, strengthening ICCs, promoting a culture of zero tolerance towards sexual harassment, and ensuring accessible support systems are crucial for effective implementation of the POSH Act and creating safer work environments.
Some FAQs related to the POSH Act:
a. Is it possible for both men and women to be victims of workplace sexual harassment?
Both men and women can experience harassment. However, POSH Act safeguards and protections are only offered to women.
b. Does language/ verbal conduct alone qualify as sexual harassment?
Sexual harassment may include sexually explicit verbal abuse. Words can be offensive in the same way that touching and physical deeds can be. Sexually explicit jokes, remarks, and anecdotes can encourage sexual harassment at work and foster a hostile environment.
c. Do the parties involved in a claim of sexual harassment have a chance to resolve the issue through mediation or conciliation?
Yes, a settlement may be reached at the request of the aggrieved woman, but no monetary settlement can be reached.
- The author is an Alumni, Hidaytaullah National Law University and currently works as Advocate, Jammu & Kashmir and Ladakh High Court
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