October 30, 2023
In today's world, ensuring safe and inclusive workplaces has become imperative for fostering a healthy and productive environment. Sexual harassment is a pervasive issue that can have devastating consequences for victims, perpetuating power imbalances and undermining personal well-being. To address this concern, and in light of Articles 14, 15, and 21 of the Constitution of India, the Indian Government introduced the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), which aims to protect individuals from harassment and promote gender equality in workplaces across the country. This article aims to delve into the intricacies of the POSH Act by specifically examining its provisions regarding the essentiality of formulating an inclusive and comprehensive policy on the prevention of sexual harassment and current legal frameworks governing its application.
The POSH Act applies to every private and public establishment/ organization in India, including offices, companies, educational institutions, hospitals, NGOs, and various other organizations. However, there is a very essential compliance under the POSH act which requires every organization to create an Internal Complaints Committee (“ICC”), applicable to only those organizations that have 10 or more employees.
As per Section 19 of the POSH Act, there are some duties to be followed by the employers such as providing a safe working environment, displaying the penal consequences of sexual harassment, organizing workshops, providing necessary facilities to the ICC or the Local Complaints Committee (“LCC”), etc. In the prolongation of this Section 19, Rule 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013 (“POSH Rules”) states that every employer shall: “formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention, and redressal of sexual harassment at the workplace intended to promote gender-sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women”. Therefore, as per Rule 13 of the POSH Rules, every employer shall formulate the internal policy or charter or resolution or declaration for prohibition and redressal of sexual harassment. However, most organizations prefer to formulate an internal policy rather than a charter resolution or declaration for the prevention and redressal of sexual harassment, because through the policy, organizations are able to provide better clarity to the employees about the provisions of sexual harassment as per the POSH Act and POSH Rules.
The policy on the prevention of sexual harassment should outline the definition of sexual harassment, emphasizing the broad range of behaviors that fall under its purview. Further, it should clearly express that sexual harassment is strictly prohibited and provide examples of unacceptable behavior. The policy should detail the responsibilities of employees, supervisors, and management in stopping and addressing sexual harassment incidents. It should clearly communicate the process for reporting complaints, including the designated authorities or committees responsible for receiving and investigating complaints. Organizations that have 10 (ten) or more employees should establish an ICC with external members, and ensure its independent status and fairness.
Furthermore, the policy should highlight the confidentiality and privacy of complainants and witnesses during the investigation process. It should provide a guarantee that complainants will not face retaliation or victimization for reporting incidents. Organizations must ensure that employees are aware of the policy and should provide training on preventing sexual harassment, recognizing its signs, and understanding the reporting process. Regular reviews and updates of the policy are also very crucial to ensure its effectiveness and compliance with any amendments to the POSH Act and POSH Rules. By formulating a strong and well-communicated prevention of sexual harassment policy, organizations reveal their commitment to promoting a safe, respectful, and inclusive work environment, where employees feel authorized to report incidents and seek redressal, leading to a culture that enthusiastically stops and addresses sexual harassment.
POSH Act and POSH Rules have been outlined by the legislation for protecting women employees from any form of sexual harassment and the application of the same is of the utmost importance. However, many organizations are not properly following the provisions of the POSH Act, which has been highlighted by the Supreme Court of India as well. The Supreme Court of India has communicated serious concerns about the insufficient enforcement of the POSH Act by employers in various sectors across the country, including government departments, educational institutions, and private organizations. This issue was extensively discussed in the recent case of Mr. Aureliano Fernandes vs. State of Goa and Others, in their judgment dated May 12, 2023. The Supreme Court specifically observed insufficiencies in adhering to the principles of natural justice, the improper formation of ICCs and LCCs in establishments, the ineffectively drafted service rules for addressing sexual harassment complaints, and the poor application of the inquiry process.
Sexual harassment of women in the workplace has long been a serious concern, not restricted to India alone, but concerning societies across the world. In India, the POSH Act represents an important milestone in the fight against workplace sexual harassment. However, passing this legislation is just the first step. Equally, if not more, important is its complete and effective implementation. For the POSH Act to have a substantial impact, it is imperative that every organization thoroughly adheres to its provisions. The policy on prevention of sexual harassment must be well-drafted, thorough, and, above all, strictly imposed. This methodology will not only benefit the victims but also aid in the overall well-being and efficiency of the workforce, making it a necessary endeavor for every responsible body in society
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