CIA-II

On

Analysis of

“Prevention of Sexual Harassment (POSH) Act of 2013”

Submitted by:

ASHISH KUMAR KURREY

Submitted to:

MR. ATUL JAYBHAYE

Year – 3rd Year Student

Submitted on:

8th July, 2023

Student of-

“HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR (C.G.)”

 DECLARATION

I hereby declare that this research on “Prevention of Sexual Harassment (POSH) Act of
2013” had been done by me. All adequate sources are properly cited. After reading the case
from SSC Online, a lot of journal, article or provisions related to this case, I have made this
project on my own words.

Ashish Kumar Kurrey

Roll No- 33

Semester - V

B.A. LL.B. (Hons.)

 INTRODUCTION

Women make up the majority of the world's population, however because of

prejudices and gender disparities, they are often put in a range of
unfavourable situations. They have been subjected to abuse and exploitation
by civilizations that are controlled by men. Women have been mistreated in
India on an interpersonal, monetary, psychological, physical, and sexually basis
from the dawn of time, occasionally in the name of religious direction,
occasionally in the name of scripture, and occasionally out of societal habit.

The landmark Vishakha case transformed the Indian Judicial system. And
therefore the “Prevention of Sexual Harassment (POSH) Act of 2013” is
enacted, which aimed at creating a safe and respectful working environment
for women. It provides a “legal framework to prevent and address incidents of
sexual harassment at the workplace”.

In India, the POSH Act 2013 has a substantial impact on sexual harassment
prevention and response. It seeks to establish a setting for work that is secure,
welcoming, and supports the dignity and rights of women. The Act defines
“sexual harassment broadly, covering unwelcome acts, behaviour, or conduct
of a sexual nature that violates the dignity of a woman, creates an intimidating,
hostile, or offensive work environment, or interferes with her work
performance”1.

SCOPE AND FEATURES

The Act applies to all workplaces, including government and private

organizations, establishments, educational institutions, and hospitals. It covers
employees, interns, temporary workers, and women visiting the workplace.

1
Section 2 (n)
1. Formation of Internal Complaints Committee (ICC): Every workplace with
more than 10 employees must constitute an ICC to address complaints of
sexual harassment. The committee consists of an external member, preferably
a woman, and representatives from the organization, including a senior-level
woman employee.

2. Duties of Employers: Employers are responsible for implementing the

provisions of the Act. They must widely publicize the policy against sexual
harassment, organize awareness programs, and provide a safe and supportive
environment for women. Employers must also conduct regular workshops and
training sessions for employees.

3. Complaint Mechanism: The Act mandates a complaint mechanism to

address sexual harassment complaints. It allows women to file complaints in
writing within three months of the incident. The Act also provides for the
option of filing complaints through electronic communication.

4. Confidentiality and Non-Disclosure: The Act ensures that the identity of the
complainant and the details of the complaint are kept confidential throughout
the inquiry process. It also prohibits the publication or disclosure of any
information that may lead to the identification of the parties involved.

5. Inquiry and Redressal: The ICC is responsible for conducting an impartial

inquiry into the complaint and providing a fair opportunity to both the
complainant and the accused to present their case. The Act prescribes a time
frame of 90 days for completing the inquiry and submitting the report.

6. Penalties: In case of non-compliance with the provisions of the Act,

employers may face penalties, including fines and cancellation of licenses or
registrations required for running a business.

ORIGIN

The history of the Prevention of Sexual Harassment (POSH) Act of 2013 in India
can be traced back to the landmark judgment of the Supreme Court of India in
the Vishaka case in 1997. The Vishaka case arose from the gang rape of a social
worker in Rajasthan, India. According to the Indian Constitution, sexual
harassment of women at work is a basic right violation, as acknowledged by
the Supreme Court of India.

The Supreme Court established standards and guidelines in the Vishaka

judgement to prevent and resolve such events in the absence of explicit law
addressing workplace sexual harassment. These guidelines were based on the
“Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)”, which India had ratified.

The Vishaka guidelines provided a framework for employers to deal with

complaints of sexual harassment. It emphasized the obligation of employers to
prevent sexual harassment, institute a complaints mechanism, and conduct
inquiries into complaints. It also highlighted the need for awareness programs
and training to create a safe working environment.

However, the Vishaka guidelines had limitations as they were not legally
binding. The absence of a statutory framework led to inconsistent
implementation and enforcement across organizations. To address these
limitations, the Government of India introduced the “Sexual Harassment of
Women at Workplace (Prevention, Prohibition, and Redressal) Bill” in 2010.

The bill underwent several revisions and consultations with stakeholders,

including women's organizations and legal experts, to address concerns and
incorporate suggestions. The POSH Act of 2013 was a significant development
in India's efforts to address sexual harassment at the workplace. It provided a
comprehensive legal framework for preventing and redressing such incidents,
making it mandatory for employers to establish internal complaint
mechanisms and constitute Internal Complaints Committees (ICCs). The Act
also laid down guidelines for conducting inquiries, maintaining confidentiality,
and ensuring the safety and protection of victims and witnesses.

Since its enactment, the POSH Act has played a crucial role in raising
awareness about sexual harassment, empowering women to report incidents,
and fostering a culture of respect and equality in Indian workplaces.
Organizations have taken steps to comply with the Act's provisions, including
the establishment of ICCs and conducting training programs. The Act has
helped create a more supportive environment for women and has increased
accountability for addressing and preventing workplace sexual harassment in
India

ANALYSIS OF VISHAKA CASE

The case in question was a significant one in the realm of protecting women
from sexual harassment in the workplace. It involved an incident in 1992
where Bhanwari Devi, a social worker in Rajasthan working on women's
development, was allegedly gang-raped by five men from a higher caste when
she tried to prevent a child marriage in her village. Despite lodging a complaint
with the police, no thorough investigation was conducted.

This landmark case raised important questions about the responsibility of

employers in cases of sexual harassment by their employees or towards their
employees in a workplace setting.

Seeking justice, Bhanwari Devi pursued her case in the Trial Court, but the
accused were acquitted due to a lack of medical evidence and other reasons.
This led women's groups and organizations to appeal against the judgment. As
a result, a public interest litigation was filed in the Supreme Court of India,
focusing on the issue of sexual harassment in the workplace. The Supreme
Court's judgment drew on various international treaties that had not yet been
adopted in domestic law.

The Supreme Court ruled that sexual harassment of a woman in the workplace
violated her fundamental rights to gender equality and the right to life and
liberty under Articles 14, 15, 19, and 21 of the Indian Constitution. The court
determined that such acts constituted a violation of women's human rights.

Verdict

It became apparent that there was a legislative gap that needed to be

addressed with regard to sexual harassment in the workplace. The case
established several guidelines and requirements for employers and other
responsible individuals or institutions, including:
1. The employer or responsible person should establish procedures and
mechanisms to prevent acts of sexual harassment in the workplace.

2. Formation of a complaint committee at all workplaces.

3. The committee should be headed by a female employee and may involve

participation from NGOs or third parties.

4. At least half of the committee members should be women.

5. The committee is responsible for handling all complaints of sexual

harassment by women employees, and employers must take appropriate
action in accordance with relevant laws.

6. The committee provides advice and recommendations to the victim on

further action to be taken.

These legal changes brought about by the case aimed to address the issue of
sexual harassment at the workplace and introduced measures to ensure the
prevention and redressal of such incidents.

OBLIGATION OF EMPLOYER

Employers in India have certain obligations and responsibilities under the "Prev
ention of Sexual Harassment (POSH) Act" of 2013 to guarantee the prevention
and resolution of sexual harassment in the workplace. Here are the key duties
of employers outlined in the Act:

1. Formulating and Communicating Policy: Employers are required to

formulate a policy against sexual harassment that defines what
constitutes sexual harassment, provides guidelines on the complaint
procedure, and emphasizes a zero-tolerance approach towards such
behavior. The policy should be communicated to all employees through
appropriate means, such as notice boards, intranet, or employee
handbooks.

2. Establishing an Internal Complaints Committee (ICC): Employers must

constitute an ICC in every workplace or designate a Local Complaints
Committee (LCC) for organizations with fewer than 10 employees or
 where the ICC cannot be constituted. The ICC/LCC should be composed
of members with knowledge and sensitivity to issues relating to sexual
harassment and should include at least one external member who is
preferably a woman.

3. Providing a Safe Working Environment: Employers are responsible for

creating a safe and conducive working environment for all employees,
free from sexual harassment. This includes taking measures to prevent
sexual harassment and ensuring the implementation of the policy and
the provisions of the Act.

4. Conducting Awareness Programs: Employers are required to conduct

regular awareness programs and workshops to educate employees
about sexual harassment, its prevention, and the available redressal
mechanisms. These programs should help create a better understanding
of the Act, promote a respectful workplace culture, and inform
employees about their rights and responsibilities.

5. Training ICC/LCC Members: Employers should provide appropriate

training to the members of the ICC or LCC, including their roles and
responsibilities, inquiry procedures, legal aspects of sexual harassment,
and methods of addressing complaints. Training ensures that the
committee members are well-equipped to handle complaints in a fair
and unbiased manner.

6. Ensuring Confidentiality: Employers must ensure that the identity of the

complainant, the accused, and other individuals involved in the
complaint remains confidential throughout the inquiry process. They
should take necessary measures to maintain confidentiality and protect
the privacy of the individuals concerned.

7. Taking Appropriate Action: Employers have a duty to take prompt and

appropriate action upon receiving a complaint of sexual harassment.
This includes conducting an impartial inquiry, providing a fair
opportunity for both parties to present their case, and taking necessary
disciplinary action against the guilty party if the complaint is
substantiated.
 8. Prohibiting Retaliation: Employers are required to prohibit any form of
retaliation or victimization against the complainant or witnesses in
connection with a sexual harassment complaint. They should take steps
to ensure that no adverse consequences arise for individuals reporting
incidents or cooperating with the inquiry process.

Conclusion

A key piece of law in India, the Prevention of Sexual Harassment (POSH) Act of
2013, strives to make the workplace a secure and respected place for women.
The Act offers a framework for the legal prevention and resolution of instances
of sexual harassment in workplaces across the nation.

The Act guarantees that women have a forum to report instances of sexual
harassment and seek justice by requiring the creation of Internal Complaints
Committees (ICCs) in organisations and establishing rules for handling
complaints. It highlights how companies must create policies, awareness
campaigns, and training sessions in order to avoid and resolve such situations.

The POSH Act also focuses on maintaining confidentiality and providing a fair
and impartial inquiry process to protect the rights and dignity of complainants
and accused individuals. It lays down penalties for non-compliance by
employers, thereby enhancing accountability and encouraging organizations to
take the issue of sexual harassment seriously.

Since its enactment, the POSH Act has played a vital role in raising awareness,
empowering women, and fostering a culture of respect and equality in
workplaces in India. It has provided a legal basis for addressing workplace
sexual harassment and has contributed to the creation of safer and more
inclusive work environments.

However, the effectiveness of the Act relies on its implementation and

enforcement by employers and organizations. Continued efforts in promoting
awareness, conducting training programs, and ensuring compliance with the
Act's provisions are essential for its success in combating sexual harassment
and creating workplaces free from such misconduct.
Overall, the POSH Act of 2013 is a crucial legislative measure that seeks to
protect the rights and well-being of women in the workplace, contributing to a
more equitable and inclusive society.