Pertinent Points of PoSH

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH), a result of a relentless campaign by women organisations to ensure safe work places for women with an effective and quick redressal system is in place in most corporate offices. However, individuals working in corporate offices still lack knowledge about it. Noted advocacy activist Adv. Rama Sarode provides an insight into this law, in a simple manner. Read on…

Drawing from over two decades of extensive experience, navigating cases across diverse sectors such as Information Technology (IT), manufacturing, academia, and nongovernmental organisations (NGOs), Adv Rama Sarode is a veteran and a rallying force for transformation in society. She delves into the background of PoSH law, important definitions for understanding this law, complaint filing process and a brief overview of its implementation. She said that there was a learning in every case she has handled in all these years.

Need to understand personal space

As an employee, it’s important to understand that the relation between you and your colleagues defines the boundaries of your personal space. You should also understand that of others. The level of friendship with one colleague is different from that with another. So, subjectivity needs to be understood in sexual harassment complaints. Also, I look at these complaints from the complainant’s perspective.

Reasons for enacting this law

A woman named Bhanwari Devi (from Bhateri village located about 52km from Jaipur) from a potter community in Rajasthan, was appointed by the women and child welfare department to work as ‘saathi’ for preventing child marriages. In 1992, she intervened to stop the marriage of a nine-month old baby girl on Teej – an auspicious occasion for conducting marriages. In order to teach her a lesson, the family members who belonged to the higher caste, sexually assaulted Devi in front of her husband, on 22 September, 1992. However, she did not relent and fought her case valiantly.

Concerned about the safety of women at workplaces, a group of women organisations filed a public interest litigation (PIL) in the Supreme Court under the collective platform of ‘Vishakha’, which issued Vishakha Guidelines in 1997. The PoSH Act was passed in 2013, by incorporating some of the Vishakha Guidelines.

The law is gender specific and only for women. Anyone other than that, can file their complaints under the internal policy of misconduct in that organisation.

Students also come under this law because they are governed under the University Grants Commission (UGC) which has competent guidelines. As against PoSH, which deals with women’s complaints; a student, whether a girl or a boy is covered under UGC’s law because of their vulnerability.

Definitions:

Aggrieved person - complainant: Whether or not a person is employed in that organisation, if he/she has a working relationship with it, he or she comes under the PoSH Act. For example, vendors who provide books for the library; some instruments for the laboratory; provide vehicles, security guards or do outsourced services come under PoSH. All of them may not be on the payroll of your organisation but you have a working relationship with them as they are your vendors. If students are placed for internship in any organisation means you have a working relationship with it.

Respondent: A respondent can be a man or a woman or a person of the third gender. Anyone committing sexual harassment is a respondent under this law.

Employer: Employer is the one who controls the entire organisation. It can be one person, board, board of directors, trustees, management, vice-chancellor, dean or others. So, you have to decide whose overall control or management is there. If anyone complains to the government that an organisation does not implement this law nor follows its mandate, then it will send a show cause notice to this organisation and ask what has been done to follow the law.

If after issuing a show cause notice it is proved that the organisation is guilty then it has to pay a penalty of `50,000 for first offence, second time the penalty goes the `1 lakh, so much so that the authorities have powers to cancel or withhold the registration of the organisation. There are serious implications if you don’t follow the mandate of the law.

Employee: It is anybody with whom you have a working relationship and not at your personal level. It could be somebody who is permanently employed or on contract basis, assignment basis, internship, volunteership or apprenticeship in the organisation. So vendors, outsourced authorities, students, guest faculties, organisations where students work on internships, are also employees. The criteria is not whether they are your permanent employee or not, whether you are paying him/her or not, but it is whether you are having a working relationship or not.

Workplace: It is not necessary that the incident should occur inside your premises. It could happen when you take your students to attend seminar or conference or a faculty development programme or a get-together organised by some staff members outside the premises.

If the employees are working from home then their home becomes their workplace so PoSH is still applicable. The transportation also becomes the workplace if the organisation provides it to the employees.

If sexual harassment occurs in a flight, train or public transport by a stranger, then the organisation should help you to file a case but it is not responsible for redressal here. There is no working relationship between you and the stranger so the law is not applicable here.

What defines Sexual Harassment: It is an unwelcome act of behaviour because it violates or encroaches upon one’s personal space. Which are the acts which define sexual harassment? One of them is physical advance or contact. Physical advance means a person does not touch you but comes very close, much to the consternation of the complainant and feels intimidated. In physical contact there is touch—whether intentional or unintentional. Further, under this law we look more at the impact on the victim and not whether it was intentional or unintentional touch. We also look into the entire context in which the incident occurred, so as to determine whether or not, it is a sexual harassment case.

Other forms of sexual harrasment are: asking sexual favours for doing some work like giving promotion or good appraisals or more marks in examinations; making sexually coloured remarks or doing indecent gestures or facial expressions; sending indecent messages, e-mails, videos and cartoons. The silence of the victim or no retaliation cannot be considered as consent for any wrongdoing.

So there is a need to create such awareness in all organisations to encourage formation of Vishakha committees, for preventing occurrences of women sexual harassment incidents, for creating safe workplaces and ensuring dignity and respect for women in corporate spaces.

IMPORTANT PROVISIONS OF THE PoSH ACT

• Legal obligation on employers to prevent and prohibit sexual harassment in the workplace
• Employers are required to form an Internal Complaints Committee (ICC) at each workplace with 10 or more employees to accept and address complaints
• ICC have the powers of civil courts for collecting evidence
• Employers must conduct awareness programmes, provide a safe working environment and display information about PoSH Act at the workplace
• Penalties for non-compliance of Act, including fines and cancellation of licences