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What is POSH, the law against sexual harassment in India?

  • Published
    19th Mar, 2022
Context

Kerala High Court recently asked organisations associated with the film industry to take steps to constitute a joint committee to deal with cases of sexual harassment of women, in line with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013.

About

About the law against sexual harassment:

  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013.
  • It defined sexual harassment; lay down the procedures for a complaint and inquiry, and the action to be taken.
  • It broadened the Vishaka guidelines, which were already in place.
  • The Vishaka guidelines were laid down by the Supreme Court in a judgment in 1997.
  • This was in a case filed by women’s rights groups, one of which was Vishaka.
  • They had filed public interest litigation over the alleged gang rape of Bhanwari Devi, a social worker from Rajasthan.
  • In 1992, she had prevented the marriage of a one-year-old girl, leading to the alleged gang rape in an act of revenge.

Guidelines and the law

  • The Visakha guidelines, which were legally binding, defined sexual harassment and imposed three key obligations on institutions —
  • prohibition
  • prevention
  • redress
  • The Supreme Court directed that they should establish a Complaints Committee, which would look into matters of sexual harassment of women at the workplace.
  • The 2013 Act broadened these guidelines.
  • It mandated that every employer must constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees.
  • It lay down procedures and defined various aspects of sexual harassment, including the aggrieved victim, who could be a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”.
  • This meant that the rights of all women working or visiting any workplace, in any capacity, were protected under the Act.

Definition of sexual harassment:

Under the 2013 law, sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:

  • Physical contact and advances
  • A demand or request for sexual favours
  • Sexually coloured remarks
  • Showing pornography
  • Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Procedure for complaint

  • Technically, it is not compulsory for the aggrieved victim to file a complaint for the ICC to act. 
  • Under the Act, the complaint must be made “within three months from the date of the incident”.
  • However, the ICC can “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”.
  • The ICC “may”, before inquiry, 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”.
  • The ICC may either forward the victim’s complaint to the police, or it can start an inquiry that has to be completed within 90 days.
  • The ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath, and requiring the discovery and production of documents.
  • When the inquiry is completed, the ICC must provide a report of its findings to the employer within 10 days. The report is also made available to both parties.
  • The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, the Act states, should not be made public.
  • After the recommendations, the aggrieved woman or the respondent can appeal in court within 90 days
  • Section 14 of the Act deals with punishment for false or malicious complaint and false evidence.
  • In such a case, the ICC “may recommend” to the employer that it take action against the woman, or the person who has made the complaint, in “accordance with the provisions of the service rules”.
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