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POSH LAW IN INDIA

Understanding the POSH Act and Its Compliance in India


Introduction

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) is a landmark legislation in India aimed at ensuring a safe and equitable workplace for women. Rooted in the principles of gender justice and workplace equality, the POSH Act lays down comprehensive guidelines for the prevention, prohibition, and redressal of sexual harassment. This blog delves into its historical background, key provisions, compliance requirements, and case laws that have shaped its implementation.


Historical Background

The genesis of the POSH Act can be traced back to the Vishaka Guidelines, issued by the Supreme Court of India in the case of Vishaka & Ors. v. State of Rajasthan (1997). This case arose from the gang rape of Bhanwari Devi, a social worker in Rajasthan, who was targeted for preventing a child marriage. The Supreme Court recognized the absence of specific legislation addressing workplace sexual harassment and laid down guidelines under Articles 14, 15, 19, and 21 of the Indian Constitution.

The Vishaka Guidelines mandated that:

  1. Employers take preventive measures to curb sexual harassment.
  2. A complaints committee be established in every workplace to address grievances.

The guidelines formed the bedrock for the POSH Act, enacted in 2013, to codify and expand on these principles.


Key Provisions of the POSH Act

  1. Definition of Sexual Harassment (Section 2(n))
    The Act defines sexual harassment to include unwelcome acts such as:
    • Physical contact or advances.
    • Demand or request for sexual favors.
    • Sexually colored remarks.
    • Showing pornography.
    • Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
  2. Applicability (Section 2(o))
    The Act applies to all workplaces in India, including:
    • Government and private sector organizations.
    • NGOs.
    • Educational institutions.
    • Hospitals.
    • Unorganized sectors like domestic work.
  3. Constitution of Internal Complaints Committee (ICC) (Section 4)
    Every employer with more than 10 employees is required to set up an ICC at the workplace. The ICC must include:
    • A presiding officer (a senior woman employee).
    • At least two members committed to women’s causes.
    • One external member from an NGO or legal background.
  4. Procedure for Filing Complaints (Section 9)
    • A victim can file a written complaint within three months of the incident.
    • The ICC has the discretion to extend this period by another three months for valid reasons.
  5. Inquiry Process (Section 11)
    • The ICC must complete the inquiry within 90 days.
    • The final report should be submitted to the employer within 10 days of completion.
  6. Penalties for Non-Compliance (Section 26)
    Failure to comply with the Act may result in penalties such as:
    • A fine of up to ₹50,000.
    • Cancellation of business licenses in case of repeated violations.


Compliance Requirements for Employers

  1. Policy Formulation
    Employers must draft and implement a sexual harassment policy clearly outlining the organization’s stance against such behaviour.
  2. Awareness and Training
    Regular sensitization programs and training sessions for employees and ICC members are mandatory.
  3. Display of Information
    Details of the POSH policy and ICC members must be prominently displayed at the workplace.
  4. Annual Report
    The ICC is required to prepare an annual report detailing the number of complaints received, resolved, and pending, which must be submitted to the District Officer.


Notable Case Laws

  1. Medha Kotwal Lele & Ors. v. Union of India (2013)
    The Supreme Court reiterated the importance of implementing the Vishaka Guidelines effectively and emphasized the need for periodic training and awareness.
  2. Dr. Punita K. Sodhi v. Union of India (2010)
    This case highlighted that false allegations of sexual harassment could also lead to disciplinary action, stressing the need for fair inquiry procedures.
  3. Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (2014)
    The Bombay High Court ruled that universities and educational institutions are also covered under the ambit of the POSH Act.
  4. Priya Ramani v. MJ Akbar (2021)
    In this high-profile case, the court upheld the defence of truth and public interest under defamation laws, emphasizing the importance of creating safe workplaces for women.


Challenges in Implementation

  1. Lack of Awareness
    Many employees, especially in the unorganized sector, are unaware of their rights under the POSH Act.
  2. Inadequate Training
    ICC members often lack the necessary training to handle complaints sensitively and fairly.
  3. Fear of Retaliation
    Victims may refrain from filing complaints due to fear of stigma or retaliation.


Conclusion

The POSH Act is a significant step toward ensuring gender justice and workplace equality in India. However, its effectiveness depends on robust compliance, widespread awareness, and a proactive approach by organizations. Employers must view the Act not just as a legal mandate but as a moral obligation to foster a safe and inclusive work environment.

As advocates, we must continue to raise awareness, provide legal support, and ensure that the spirit of the POSH Act is upheld in every workplace across the country.