PoSH Act 2013 – Regulations And Implementations

The issue of sexual harassment of women at work is one that the whole human race takes very seriously. It cannot be understood in a limited sense because it may also refer to unwanted sexual advances and other verbal or physical harassment of a sexual nature. As a result, victims of sexual harassment often experience severe psychological and physical problems like stress, depression, anxiety, and feelings of shame and guilt.

Following the ruling of the Supreme Court in the matter of Vishaka & Ors. State of Rajasthan and Others v. (1997), the Sexual Harassment of Women at Workplace Act (Prevention, Prohibition and Redressal) Act, 2013 (“women harassment act“) was finally enacted by the Ministry of Women and Child Development (“Ministry”) on December 9, 2013, via a notification. A safe workplace for women is therefore ensured by the implementation of the PoSH Act, which aims to prevent and protect women from sexual harassment at work. Every employer with more than 10 workers is required under the PoSH Act to establish an internal complaints committee (“ICC”) in the way specified in order to accept and respond to complaints of any type of sexual harassment from women in a timely and highly secret manner.

Vishaka vs State Of Rajasthan (1997)

Vishaka and others A historical case involving sexual harassment of women at work is known as v. State of Rajasthan. The Supreme Court has made a significant change in the way sexual harassment lawsuits are handled by issuing this ruling. Uninvited or unwelcome sexual favors or sexual gestures from one gender toward the other are included in the definition of “Sexual Harassment.” Such bad deeds leave the victim feeling embarrassed, aggrieved, and disrespected.

Bhanwari Devi, who worked for the Government of Rajasthan’s rural development program, was viciously gang-raped in 1992 as a result of her efforts to stop the then-common practice of child marriage and support the government’s campaign against it. The villagers were unaware of this cause and continued to support the practice. In the meantime, a family in the mentioned village decided to marry off their young daughter as a child. Bhanwari tried to persuade the family to forgo the marriage, but her efforts had no effect and the family decided to go ahead with the marriage. A few police officers then attempted to prevent the marriage, but no action was taken 

The people concluded that Bhanwari’s actions—which led to both her job loss and the boycott of her family by the whole village—were what caused the police to make the aforementioned visit. Five (five) guys attacked Bhanwari’s husband and violently raped her to get revenge on her. The rape victim did not receive justice from the courts, and the rapists were.

Under the umbrella of Vishaka, attorneys and women’s rights advocates filed public interest litigation (PIL) at the Supreme Court to support the cause of working women in India. Given this serious problem, the Supreme Court recognized the apparent legal deficiency 

Un Convention on Elimination of All Forms of Discrimination Against Women (CEDAW)

The UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), also referred to as an international bill of rights for women, in 1979. It lists the many types of discrimination against women and establishes a national action objective to put an end to it.

The Convention lays the groundwork for achieving gender parity by guaranteeing women’s equal access to and opportunities in political and public life, including the right to vote, the right to run for office, and the right to health, education, and employment. The parties to this Convention agree to implement all necessary measures, including legal and temporary ones, to ensure that women can fully exercise their fundamental rights and human rights.

The Convention is the only human rights treaty that upholds women’s right to abortion while also focusing on how culture and custom shape gender roles and family relationships. It upholds women’s rights to choose their nationality, as well as the nationality of their offspring.

It is crucial to remember that the nations that have ratified the Convention are obligated by law to implement its provisions.

What is the Internal Complaints Committee (ICC)?

Any organization with ten (10) or more workers is required under the PoSH Act to establish an internal complaints committee by written order. The ICC will have sufficient authority to look into sexual harassment claims and address them through the women harassment act and PoSH act 2013 Rules. The ICC must be established in each administrative division if an organization has numerous administrative divisions in various locations.

The local complaints committee, established by district officers of each district under the PoSH Act, will handle all complaints of sexual harassment if the organization has less than 10 (ten) employees. In this case, the ICC is not required to be formed by the aforementioned organization.

The complaints must be resolved as soon as possible to guarantee a peaceful and harassment-free workplace for all employees. Sexual harassment in the workplace is a very delicate topic that has to be addressed with the utmost care, patience, and understanding. Therefore, creating an ICC sends a strong statement that the organization is fully dedicated to making efforts to ensure the safety of women. However, it is important to remember that the PoSH Act makes the creation of an ICC a necessity, and failure to comply with it can result in severe penalties, including the loss of the right to operate a business.

What is the Composition of the ICC?

An organization’s ICC must have at least 4 (four) members, including one external member, and at least 50% of its members must be women.

The three categories of members the:

1. Presiding Officer

The Presiding Officer, who serves as the ICC’s chairwoman, must be a woman who works for the firm and has a high position. This makes it simpler for women to protest against the ICC and presents their cases more effectively. If a senior female employee is not available to fill the position of presiding officer, the employer may choose another administrative unit, office, or location owned by the same employer to appoint a senior female employee for the position.

2. Employee Members

Employee members of the ICC must be nominated by at least 2 (two) members. The aforementioned staff members should ideally have substantial legal expertise and experience working for a social cause or women’s safety. Because it is not always practical to have employees with legal expertise in the field of women’s safety, the employer must regularly provide training to all staff members to give them the knowledge and skills they need to handle complaints of this nature.

3. External Member

A person from a non-governmental organization or association dedicated to the cause of women, or any individual who is knowledgeable about the problems of sexual harassment in general, is generally referred to as an external member of the PoSH Act. The purpose of having an external member with such expertise is to guarantee the impartiality and independence of the ICC’s activities, as well as the objectivity and transparency of the inquiry process.

What are the Redressal Do’s And Don’ts?

Posh Act Applicability

The ICC must first be aware of its key responsibilities, which include 

(I) being thoroughly prepared with the laws and procedures, including but not limited to policies, service rules, and relevant rules and regulations; 

(ii) gathering and recording all relevant information, documents, and information regarding the complaint made by the aggrieved; and 

(iii) identifying the main issues in the complaint and acting accordingly.

The ICC must follow the next procedures:

• Establish a conducive setting for meetings.
• Use gestures to show that you are giving the parties your undivided attention.
• Respectfully deal with the complaint.
• Throw out preconceived notions.
• Identify the harm.

The ICC must, however, refrain from the following actions:

• Become combative.
• Demand a detailed account of sexual harassment.
• In the presence of the complainant or the respondent and examine 

Employees and workers have a right to expect certain things when it comes to addressing sexual harassment at work, including a trained, skilled, and competent complaints committee; a time-bound process; information confidentiality; assurances of non-retaliation; counseling or other enabling support where necessary; and assistance if the complainant chooses to pursue criminal charges.

What is the Inquiry into the Complaint and Associated Timelines?

Primarily, within 3 (three) months of the date of the occurrence/last incidence, the aggrieved ladies must submit a written complaint to the ICC (6 copies), together with supporting documentation, names, and addresses of witnesses. The ICC has the authority to extend the stated deadline by an additional 3 (three) months if it is satisfied with the submitted justifications, which must be provided in writing. It is important to note that the Presiding Officer or any other Member of the ICC shall provide the aggrieved. After then, the responder must get 1 (one) copy of the complaint within 7 (seven) days of receiving it. Additionally, the responder must answer the complaint within 10 (ten) working days after getting a copy of it, together with a list of any supporting documentation and the names and addresses of any witnesses.

The PoSH Act stipulates that the investigation must be finished within a total of 90 (ninety) days of receiving the complaint. Within 10 (ten) days after the inquiry’s conclusion, the ICC must provide the employer with the report of the investigation. Last but not least, the employer must implement the ICC’s recommendations within 60 (sixty) days of receiving the inquiry report.

Appeal

If a party does not agree with the recommendations made or feels further wronged by their implementation or non-implementation, they may file an appeal with the appellate authority under the PoSH Act and PoSH Rules within the time frame specified therein.

What is the Penalty for Non-compliance Under Posh Act?

If the employer fails to establish the ICC, violates, attempts to violate, or aids in the violation of another provision of this PoSH Act or the PoSH Act 2013 Rules, they may be subject to a fine of up to INR 50,000. Additionally, if an employer who has previously been convicted of a PoSH Act violation commits the same offense and is found guilty, he will be subject to a double punishment. In addition, the government or local authority may also cancel or refuse to renew the employer’s license or registration, depending on the circumstances, which is necessary to conduct his business activity.