SC’s Guidelines for implementating POSH Act

Recently, the Supreme Court (SC) has issued directions to has issued directions to the Centre, States and Union Territories for appointment of District Officer in each district of India with aim of implementing POSH Act in a better way.

What is the decision of Supreme Court?

• The Apex Court interpreted Section 5 of the POSH (Protection of Women from Sexual Harassment) Act and expressed that the concerned provision made it mandatory for appointment of a District Officer.
• The Supreme Court directed that the Principal Secretary of the State/UT Ministry of Women and Child will personally ensure appointment of a district officer in each district within their territorial jurisdiction, as mentioned within four weeks.

Section 5 of POSH Act:

The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act.

• The Court also stated that the word “may” used in Section 5 with respect to appointment of District Officer does not make the provision discretionary.
• The bench of Apex Court said the District Officer, is the most important functionary in the system, tasked with keeping the redressal and monitoring framework both intact, and smoothly running and hence his/her appointment is important for streamlining the implementation of the Act.
• The Supreme Court has also asked the appropriate government or district officers in question, to also “undertake effort to spread awareness on the existence of local committees, and make them approachable for the unorganised sector”.
  
  
  

What is POSH Act?

• The POSH Act is a legislation enacted in 2013 to address the issue of sexual harassment faced by women at the workplace.
• Guidelines given by Supreme Court in Vishaka vs State of Rajasthan formed the base of the above-mentioned law.

What is Sexual harassment as per the provisions of POSH Act?

Sexual harassment as defined by POSH Act - includes unwelcome acts such as physical contact and sexual advances, a demand or request for sexual favours, making sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.

What is the Key Provisions of POSH Act?

• The Act places a legal obligation on employers to prevent and prohibit sexual harassment in the workplace.
• Employers are required to constitute an ICC at each workplace with 10 or more employeesto receive and address complaints of sexual harassment.

The Complaints Committees have the powers of civil courts for gathering evidence.

• Employers must undertake awareness programs, provide a safe working environment, and display information about the POSH Act at the workplace.
• The Act lays down a procedure for filing complaints, conducting inquiries, and providing a fair opportunity to the parties involved.
• Non-compliance with the Act's provisions can result in penalties, including fines and cancellation of business licenses.

Mandatory Steps taken by Company against POSH Compliance in India

As per the POSH Act, every company is required to take the following mandatory steps:

• Appoint an Internal Complaints Committee (ICC): As per the POSH Act, every company with more than 10 employees must appoint an ICC. The ICC must have at least 4 members, including a Presiding Officer who is a senior-level employee of the company. At least 50% of the members of the ICC must be women.
• Display notice of sexual harassment policy: The POSH Act requires companies to display a notice of their sexual harassment policy in a conspicuous place at the workplace. The notice must include the name and contact details of the ICC Members.
• Conduct awareness programmes: Companies are required to conduct regular awareness programmes for all employees on sexual harassment and the procedures for filing complaints under the POSH Act.
• Investigate complaints promptly: All complaints filed with the ICC must be investigated promptly and action taken against the perpetrator, if found guilty.

Concerns associated:

• The law is largely inaccessible to women workers in the informal sector: As more than 80% of India’s women workers are employed in the informal sector.
• Huge underreporting: Due to the power dynamics of organisations, fear of professional repercussions (loss of employment), and concrete evidence is often lacking, etc.
• Lacunae in the constitution of ICCs: 16 out of the 30 national sports federations in the country had not constituted an ICC to date.
• Improper composition of ICCs: ICCs either had an inadequate number of members or lacked a mandatory external member.
• Lack of clarity in the law: About how to conduct such inquiries, lack of awareness in women employees about who to approach in case of facing harassment, etc.