Know the ‘POSH’ Law. Author Divya Gurnay. Advocate, Punjab and Haryana High Court.

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POSH as an acronym stands for ‘Prevention of Sexual Harassment’. The law is ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013’. This Act defines the duties of an employer in making a workplace gender sensitive. It involves creation and implementation of a policy for effectively safeguarding women at workplace against sexual harassment.

The legislation of this Act first and foremost vindicates the fact that sexual harassment is and has been a workplace reality. The Act mandates every organisation to form an ‘Internal Complaints Committee’ (ICC) to handle complaints regarding sexual harassment. It calls for submission of an annual report to the district magistrate, by an organisation, on efforts made by it in following the directions set by this act.

To make employees aware on what all amounts to sexual harassment as per the act, ‘gender sensitisation’ training of employees is necessitated by this law, and it can best be done by organising lectures, seminars, workshops and distribution of educative material. Regular feedback mechanisms need being established, to ensure that all concerned have rightly understood the spirit of POSH law. This can be best done by well-designed post training feedback forms or/and regular online tests on this subject.

Training of ICC, to be able to carry out an unbiased investigation within the stipulated time is important. The Act’s implementation is ensured through requirement for an annual compliance report to be submitted to DM, as well as penalties for non-compliance to be as heavy as revocation of license of the employer.  There is always a second side to the story. Misuse of this law by women to harass or blackmail their fellow employee or the employer cannot be totally ruled out. In this light, the law also provides for action against malicious complainants.

The POSH law is a potential social disrupter. It has the power to diminish the inherent patriarchy that Indian society is plagued with. The working men and women of India should be forced to go through an awakening campaign, towards equal dignity of both genders, permeating into their homes as well as life outside work.  This is the mandate of POSH law over and above the compliance of employers to procedural requirements.

Indian POSH laws are not gender neutral, as they only protect women and do not recognise that men too could be victims of sexual harassment. Apart from this, the law is generally progressive and at par with international requirements.

Although, women were provided protection at workplace, under ‘Vishakha Guidelines’,  the POSH law has a wider scope. It protects all women at workplace, including permanent, ad-hoc employees, daily wagers, contract workers, probationers, trainees, interns, job seekers, job applicants, casual visitors, volunteers, and even those whose services stand terminated. Thus, any woman who happens to be at a workplace, if subjected to sexual harassment, is protected by this law, and the employer is liable to take action against the culprit. Workplace now includes all places that the employee visits in the course of work including  the complete workplace infrastructure, transportation used for work related travel, lodging provided to the employee, the home of the employer if he is working from there, and all places visited by an employee in the course of work, including training and social events etc.

In a patriarchal society like India, gender biased behaviours of men often go unchecked and uncorrected. For example some men think that it is their duty to police social interactions of women, at home and workplace, to the extent of them deciding how women should dress, speak or conduct themselves. As a result, male employees do not realise when they have crossed the line and female employees do not realise, where they can draw the line. 

As defined by POSH, sexual harassment is any unwelcome behaviour of a man towards a woman, which emerges from gender biased prejudices. Making a sexually coloured comment about a female colleague, in her presence, or even in her absence, if objected to by the lady, would amount to sexual harassment, no matter how harmless it may seem.

It is also very important in a healthy workplace, for both men and women to look at each other as persons, rather than through the gender lens. Women also must remember, before making any allegation, that every allegation has serious consequences, in terms of reputation of the man, his career and his family life.  Defamation claims against the complaining women, if her claim of sexual harassment is malafide, also needs to be considered by a complainant. Thus both men and women employees, equally need to be gender sensitised, and motivated towards a responsible workplace behaviour.

© Divya Gurnay, BA (Hons.), MA, LL.B, PG Human Rights, LL.M.

Advocate, Punjab and Haryana High courts, Chandigarh.

For the benefit of Students and Practitioners of Law, the important provisions of the Act are reproduced below.

Extracted from the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) ACT, 2013 [Act No. 14 of 2013]

Section 2 (a).  “Aggrieved woman” means.-  

i.                 in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;

ii.                ii.  in relation to a dwelling place or house,  a woman of any age who is employed in such a dwelling place or house;

Section 2 (f). “Employee” means a person employed at a workplace for any work on regular, temporary, ad-hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co- worker, a contract worker, probationer, trainee, apprentice or called by any other such name;

Section 2 (n). “Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely–

i.                 Physical contact and advances; or

ii.                A demand or request for sexual favours; or

iii.               Making sexually coloured remarks; or

iv.               Showing pornography; or

v.                Any other unwelcome physical, verbal or non-verbal conduct of sexual nature:

Section 2 (o). “Workplace” includes.–

i.                 any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or  a co-operative society;

ii.                Any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non -governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;

iii.               Hospitals or nursing homes;

iv.               Any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

v.                Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;

vi.               A dwelling place or a house;

vii.             vii “Unorganized sector” in relation to  a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

Section 3. Prevention of sexual harassment :–

a.  No woman shall be subjected to sexual harassment at any workplace.

b.  The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment.–

        i.            Implied or explicit promise of preferential treatment in her employment; or

        ii.           Implied or explicit threat of detrimental treatment in her employment; or

iii.               Implied or explicit threat about her present or future employment status; or

iv.                Interference with her work or creating an intimidating or offensive or hostile work environment for  her; or

v.                Humiliating treatment likely to affect her health or safety.

Constitution of Internal Committee

Section 4. Constitution of Internal Committee.– a.  Every employer of a workplace shall,  by an order in writing, constitute  a Committee to be known as the “Internal Committee”: Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub- divisional level, the Internal Committee shall be constituted at all administrative units or offices. b.  The Internal Committee shall consist of the following members to be nominated by the employer, namely: i.  a Presiding Officer who shall be  a woman employed at a senior level at workplace from amongst the employees: Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub section (1): Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization; ii.  not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge; iii. one member from amongst non-Governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment: Provided that at least one-half of the total Members so nominated shall be women. c. The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer. d. The Member appointed from amongst the non -Governmental organizations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed. e.  Where the Presiding Officer or any Member of the internal Committee. i.  contravenes the provisions of Section 16; or ii.  has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or iii.  has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or iv.  has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

Section 9. Complaint of sexual harassment. a.  Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within  a period of three months from the date of last incident: Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing: Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in-writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period. b.  Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

Section 10. Conciliation. a.  The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under Section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation:  Provided that no monetary settlement shall be made as a basis of conciliation.

Section 12. Action during pendency of inquiry:

a)  During the pendency of an inquiry, on  a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to: 

i.  transfer the aggrieved woman or the respondent to any other workplace; or

ii.  grant leave to the aggrieved woman up to a period of three months; or

iii.  grant such other relief to the aggrieved woman as may be prescribed. b. The leave granted   to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.

Section 13. Inquiry report.

a)  On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties…

d) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.

Section 14. Punishment for false or malicious complaint and false evidence. a.  Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub section (1) or subsection (2) of Section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed: Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section: Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended. b.  Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the pro visions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

Section 16. Prohibition of publication or making known contents of complaint and inquiry proceedings.- Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under Section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:

 Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.

Section 19. Duties of employer.- Every employer shall:

a.  provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;

 b.  display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under subsection (1) of Section 4; c.  organize workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;

 d.  provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

 e.  assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;

 f. make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub section (1) of Section 9;

 g.  provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code(45 of 1860) or any other law for the time being in force; h.  cause to initiate action, under the Indian Penal Code,1860 (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

 i. treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;

 j. monitor the timely submission of reports by the Internal Committee.

Section 26. Penalty for noncompliance with provisions of Act.

a.  Where the employer fails to.  

i.  constitute an Internal Committee under sub section (1) of Section 4;

 ii.  take action under Sections 13, 14 and 22; and

iii.  contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder,

  he shall be punishable with fine which may extend to fifty thousand rupees.

b. If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to:

i. twice the punishment, which  might have been imposed on  a first conviction, subject to the punishment being maximum provided for the same offence: Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;

ii. cancellation, of his licence or withdrawal, or non -renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.