Open Access Research Article
Development Of Posh Act 2013 And Posh During Covid-19 (By- Ms. Diksha Thakur)
Published Paper
Article Details
Development Of Posh Act 2013
And Posh During Covid-19
Authored By- Ms. Diksha Thakur
1st Year Student Of LLB (3)
Seedling School Of Law And Governance
Jaipur National University, Jaipur
Abstract
Sexual
harassment of women at workplace is neither new nor a rare issue, yet it is not
reported or even talked about enough. By looking at present scenario women at
their workplace are more prone to this violence because of the nature of their
jobs which involves high interaction with their colleagues. India, on this
issue, is a late entrant in formalising sexual harassment as a penal punishable
offence. In 1997 S.C. through Vishakha V. State of Rajasthan held that sexual
harassment of women is violation of two utmost fundamental rights guaranteed by
Articles 14, 19 and 21 of the Indian Constitution. Later on India finally
enacted its laws on prevention of such harassment as “The Protection of Women
Against Sexual Harassment at Workplace Bill, 2010”and“Sexual Harassment of
women at workplace (Prevention, Prohibition and Redressal) Act, 2013 by which
government intended to put a break on such sexual harassment of women and
Criminal Law (Amendment)Act,2013”which included section 354A IPC, 1860 that
define sexual harassment and prescribed a penalty of 3 years imprisonment with
or without fine. But recent data generated by government indicates that there
has been a raise in sexual harassment and a number of complaints relating to it
at work place have seen an upsurge. This paper is therefore an attempt to
explain the sexual harassment in current scenario with its legal status and how
organizations can help in maintaining the dignity of a woman.
Keywords: Sexual Harassment, Right to life and personal
liberty, Women Protection, Amendment Act, 2013.
Introduction :
“Our lives begin to end the day we become silent about things
that matter.” -Martin Luther King.jr
A woman is the mother of the race and
the future of all generations. Women constitute one half of the humanity and
they are the pivots around which the family moves. She’s looked upon as the
nourisher, provider, counsellor, developer, and the sharer of all the joys and
surrounds of the family.
Violence against women in India is a
very common phenomenon since ages, particularly in Mughal era. However, in
British era Indian women were provided some safeguards and violence against
women decreased. In spite of this the overall dignity of Indian women was not
up to the mark after the freedom of India. Therefore, the government of India
framed a Dowry Prohibition Act, 1961 and also ensured such other special
provisions in the Indian Penal Code (IPC). These provisions gave a safeguard to
household women but working women were not given due importance in the many
Acts laid down by Indian parliament from time to time. Consequently the working
women felt unsafe at the workplaces and many cases were registered against the
employers. Ultimately to empower the working women and provide them a safe and
secure environment at the workplace, the government of India decided to frame
an effective legislation which is known as the Sexual Harassment Act 2013.
However sexual harassment at workplace was not mentioned as a separate offence
in the Indian Penal Code (IPC). This issue was given attention around the year
1997. It was highlighted due to a Public Interest Litigation (PIL) filed in the
Supreme Court by an NGO (Non-Governmental Organizations) called Vishakha. This
NGO challenged the verdict of Rajasthan High Court on the gang rape case. While
hearing the matter, the Supreme Court noted the lack of legal recourse against
sexual harassment at workplace. The Supreme Court defined what would constitute
sexual harassment at workplace and issued guidelines that were to have
statutory value until a proper law was enacted by Parliament. Before the
Supreme Court set the law against sexual harassment at workplace in order, such
cases were dealt under IPC Section 354 (outraging the modesty of women) and
Section 509 (using a word, gesture or act intended to insult the modesty of a
woman).In the concerned case, a Rajasthan government employee with the Women's
Development Project was gang raped for campaigning against and stopping child
marriage. The perpetrators of this crime were some powerful landlords nearby
the capital of Rajasthan, Jaipur. They were enraged when according to them a
woman of “low caste” opposed the child marriage of a Gujjar family.
From the ancient time, gradually, the
concept of the working women came into existence. In
addition to the domestic sphere women
have taken professional roles outside their homes, this evolved into dual role
of employed women and home maker. Sexual harassment in workplace is a serious
irritating factor that renders women’s involvement in works unsafe and effects
right to work with dignity. Sexual
harassment refers to any form of unwelcome sexual behaviour which is offensive,
humiliating and intimidating. Further, it is against the law to sexually harass anyone. Over the years, sexual
harassment has taken a lot of time to be recognized as a real issue.
Nonetheless, it is a start that can protect people from this harassment.
Workplace sexual harassment is a form
of gender discrimination which violates a woman’s fundamental right to equality
and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution
of India. Workplace sexual harassment not only creates an insecure and hostile
working environment for women but also impedes their ability to deliver in
today’s competing world. Apart from interfering with their performance at work,
it also adversely affects their social and economic growth and puts them
through physical and emotional suffering.
India’s first legislation
specifically addressing the issue of workplace sexual harassment; the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 (“POSH Act”) was enacted by the Ministry of Women and Child
Development, India in 2013. The Government also subsequently notified the rules
under the POSH Act titled the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”). The year
2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013
(“Criminal Law Amendment Act”) which has criminalized offences such as sexual
harassment, stalking and voyeurism. Although the law preventing sexual
harassment at workplace has been in force since 2013, there remains lack of
clarity on various aspects pertaining to the statute, including what
constitutes sexual harassment, obligations of an employer, remedies/safeguards
available to the victim, procedure of investigation, etc. Many are also not
fully aware of the criminal consequences of sexual harassment. Lewd jokes,
inappropriate comments etc. are dismissed as normal, with women being hesitant
to initiate actions due to apprehension of being disbelieved or ridiculed;
which underpins the need for greater awareness and greater enforcement.
Moreover, the “POSH Act” is more
centered on complaint redresses mechanism rather than prevention of such act
whereas the major hurdle in combating with this evil is that majority of
incidents are not reported. It is very clear that just black and white letters
are not enough to provide a safer environment for women at workplace.
Types Of Workplace Sexual
Harassment
There are usually
following two types of workplace harassment-
·
Quid
Pro Quo sexual harassment which means demand for something in return for sexual
favours; and
·
Hostile
Work Environment in which individual or group behaviours create the conditions
those are intimidating or humiliating for the victim.
WHAT DO THE STATISTICS SPEAK?
In the current scenario each and
every country have adopted preventive measures and laws for preventing, controlling
and redressing workplace sexual harassment, yet have miserably failed and India
is no exception to that. The current survey data emphatically speaks that this
evil has not been curbed but on its contrary has rose. The survey reports also
show that not all but only few cases are reported by the victims, majority of
cases goes unreported.
Reports from United States
According to reported conducted by a
non-profit organization Stop Street Harassment in 2018 found that nationwide,
81% of women reported experiencing some form of sexual harassment in their
lifetime. The CNBC All-America Survey conducted in Dec 2017 found that overall
19% of American adults said they have been victims of sexual harassment in the
workplace. Among women the figure was 27%.
Reports from United Kingdom
The Trades Union Congress its sexual
harassment report named ‘Still just a bit of banter?’ conducted in Aug. 2016
found that
·
Around
52% of all women polled have experienced some form of sexual harassment.
·
Nearly
one quarter of women have experienced unwanted touching and nearly one fifth of
women have experienced unwanted sexual advances.
·
In
the vast majority of cases, the perpetrator was a male colleague, with nearly
one in five reporting that their direct manager or someone else with direct
authority over them was the perpetrator.
·
Four
out of five women did not report the sexual harassment to their employer.
According to the BBC survey of Oct.,
2017 half of British working women have been sexually harassed at work or a
place of study. Out of the women who said they had been harassed, 63% said they
didn't report it to anyone. The BBC Radio 5 live survey, of 2,031 British
adults, found that 37% of all those asked - 53% of women - said they had
experienced sexual harassment, ranging from inappropriate comments to actual
sexual assaults. More women than men were targeted by a boss or senior manager
and one in 10 women who had experienced harassment said it led to them leaving
their job or place of study.
Reports from India
The National Crime Records Bureau
2014, 2015, 2016 shows that the cases of sexual harassment within office
premises have been doubled–from 57% to 119% in the period of 2014-2016.There
has also been a 51% rise in sexual harassment cases at other places related to
work. India’s largest survey on workplace sexual harassment was conducted by
Indian National Bar Association (INBA) in 2016.The report was called ‘Garima’.
The initiative, reached out to over 6,047 people, of which, 78% were women. The
interviews were conducted in over ten cities in India. The report shows that
around 87.9% participants in the survey admitted that sexual harassment occurs
with the community, while 54% replied in affirmative when asked if they have
witnessed, perpetrated or been a target of sexual harassment. Around 50.7% of
the participants admitted to witnessing or being a target of sexual harassment
online or on social media. The report further discloses the facts that
·
38%
women had faced sexual harassment at workplace.
·
70%
working women do not report workplace sexual harassment in India. 65.2% women
said that their respective company did not follow the procedures laid down
under the POSH Act, 2013.
·
46.7%
surveyors said that the Internal Committee were not aware of the sections and
the legal provisions available under the Act.
·
50%
of the victims left the place post the closure of their case.
Between Jan 1, 2017 and Dec 12, 2017
the National Commission for Women (NCW) received 539 complaints, an average of
1.7 complaints per day with Uttar Pradesh leading the list with a total of 141
cases registered with NCW followed by Delhi and Maharashtra with 71 and 40
cases respectively. Cumulative data for four years from 2014 shows a similar
trend with the NCW receiving 1.8 complaints per day on average. This data
consists of only the reported cases. There are surely many more cases which
went unreported.
Why it goes Unreported?
Sexual harassment is often viewed as
a hidden issue in our society. The victims are often asked to keep quite. The
victims thus often feels it right to normalize and keep it to themselves. The
survey data speaks a lot about this issue. One thing that all the surveys found
in common was that the majority of women don’t report sexual harassment out of
the fear of losing their jobs, lack of confidence in the organisation, low
awareness about law and procedures, threat of professional victimisation,
stigma, and embarrassment.
The Equal Employment Opportunity
Commission (EEOC), 2016 study revealed that “Only 6% to 13% of individuals who
experience harassment file a formal complaint. That means that, on average,
anywhere from 87% to 94% of individuals did not file a formal complaint”.
In India only 50 out of 500
harassment cases are reported by the victims or the witnesses. The INBA 2016
survey revealed that most of the women victims dealt with it on their own
instead of filing a complaint. Fear, embarrassment, lack of faith in the
redressal mechanism, unawareness was some of the reasons cited for not reporting
to the management. Around 69% of the victims did not complain to the management
fearing repercussions or retaliation.
To sum up following facts may be
cited to be the main reasons of not reporting harassment-
·
Blame,
fear and embarrassment are the main reasons why the victims don’t report it.
Many women did not report because they did not want to "make an
issue". Fear of losing job on reporting and the fear of blame coming on
them stopped them from reporting it. Women tend to hold themselves responsible,
at least in their thought process.
·
70%
women said they did not report sexual harassment by superiors because they
feared the repercussions.
·
The
lack of social support from their friends and family is another reason. Around
42.2% of the victims who reported sexual harassment said that they were not
treated fairly by their peers and colleagues during the period of inquiry.
·
The
Internal Committee members and the women employees are not entirely aware of
the provisions of the POSH Act, 2013. The INBA survey stated despite provisions
under the POSH Act, 2013, 56.7% of the respondents said that the members of the
internal committee did not have proper knowledge of the process that needs to
be followed. In many cases the
non-verbal forms of sexual harassment were not regarded as harassment and the
women was blamed for making an issue out of “nothing”.
·
Many
companies have still not established Internal Complaint Committees suggested by
the POSH Act by saying that instances for sexual harassment cannot happen in
their work places.
·
The
dignity of women is often put at stakes by the ICC. They are very often
subjected to embarrassing questions. It was found that in some cases the
Committee insisted on a ‘physical demonstration’ of the molestation and asked
her prejudicial questions such as whether she had consumed liquor on the night
of the incident.
POSH Act
The
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, 2013 (also referred to as the “POSH Act”) came into existence
in 2013.The Act establishes a mechanism for dealing with sexual harassment
complaints in the workplace. The POSH Act has been implemented to prevent and
protect women from sexual harassment at the workplace and thereby ensure a safe
working environment for women. The POSH Act, as mandatory compliance, requires
every company having more than ten employees to constitute an Internal
Complaints Committee (ICC) in the prescribed manner to receive and address the
complaints of any sort of sexual harassment from women in a time-bound and
extremely confidential manner. The person who can file a complaint has to be a
woman, the POSH Act is not gender-neutral.
Most of the scholars have pointed out their
views about sexual harassment related environment in their studies and
concluded that frequent offensive conducts leads to the creation of a hostile
environment. Isolated or infrequent incidents of extremely offensive sexual or
sex-based verbal conduct, particularly when perpetrated by a supervisor or
coupled with physical conduct, however, may create a hostile environment. It is
also important to note that the boundaries of the work environment are not
determined by location. Instead, the boundaries of the work environment are
defined by whether or not the person is doing something related to his or her
job. For this reason, harassment can occur in locations outside the traditional
work site. The workplace includes any place where employees happen to be for
work related purposes. This includes traveling to work-related conferences or
branch offices, attending staff parties, attending conferences, or at the home
of a colleague for a work related activity. The key to understanding the
boundaries of the work environment is to consider whether the person is in a
specific place because of their job. If the answer is yes than any unwanted and
offensive sex-based conduct could be considered sexual harassment.
That is why most of the social activists
have concluded that being sexually harassed at the work place is a severe blow
to one’s personal dignity and often affects the mental well-being of the
person. This leads to a toxic work environment. It is important to understand
that the intent of a person’s behavior, whether the behavior is face-toface or
behind another employee’s back may be irrelevant in determining whether or not
a behavior is sexual harassment. What matters is the impact of the behavior on
the work environment. Regardless of intent, the behaviour may be judged on its
impact upon the work environment. Therefore, the person accused of sexual
harassment cannot be defended by stating that it did not had any negative
consequences.
Evolution of The Law
:
Sexual harassment of women
at workplace was for the very first time recognised by the supreme court of
India in its landmark judgement of Vishakha vs. State of Rajasthan[1](Vishakha
Judgement) wherein the Supreme Court framed certain guidelines and issued
directions to the Union of India to enact an appropriate law for combating
workplace sexual harassment. Nothing less of an irony, the POSH Act and the
POSH Rules was enacted 16 years after the Vishakha Judgement.
In the year 1992, Bhanwari Devi,
employed with the rural development program of the Government of Rajasthan, was
viciously gang-raped because of her efforts to stop the then prevailing
practise of child marriage in support of the government’s campaign against
child marriage. With an intent to seek revenge from Bhanwari, five men attacked
Bhanwari’s husband and brutally raped her. However, due to the great
political/social influence of the family of the accused, the rape survivor did
not get justice from the courts and the rapists were allowed to go free.
Supporting the cause of
working women in India, lawyers and women’s rights activists filed public
interest litigation (PIL) in the Supreme Court under the banner of Vishakha.
The Supreme Court, considering such grave concern, acknowledged the serious
legislative shortcoming and acknowledged workplace sexual harassment as a human
rights violation under the Constitution of India. In framing the Vishakha
Guidelines, the Supreme Court placed reliance on the Convention on Elimination
of All Forms of Discrimination against Women, adopted by the General Assembly
of the United Nations, in 1979, which India has both signed and ratified. As
per the Vishakha Judgment, the Vishakha Guidelines issued under Article 32 of
the Constitution, until such time a legislative framework on the subject has
been drawn-up and enacted, would have the effect of law and would have to be
mandatorily followed by organizations, both in the private and government
sector. As per the Vishakha judgment, ‘Sexual Harassment’ includes such
unwelcome sexually determined behavior (whether directly or by implication) as:
a) physical contact or
advances; or
b) a demand or request for
sexual favours; or
c) making sexually coloured
remarks; or
d) showing pornography; or
e) any other unwelcome
physical, verbal or non- verbal conduct of sexual nature.
The following
circumstances, among other Circumstances, if they occur or are present in
relation to or connected with any act or behaviour of sexual Harassment may
amount to sexual harassment:
Ø Implied or explicit promise
of preferential treatment in employment;
Ø Implied or explicit threat
of detrimental treatment in employment;
Ø Implied or explicit threat
about present or future employment status;
Ø Interference with work or
creating an intimidating or offensive or hostile work environment or;
Ø Humiliating treatment
likely to affect the lady employee’s health or safety.
Provisions
of the POSH Act :
·
The Act defines sexual harassment at the
workplace and creates a mechanism for redressal of complaints and safeguards
against false or malicious charges.
·
Every employer is required to constitute an
Internal Complaints Committee (ICC) at each office or branch with 10 or more
employees.
·
The Complaints Committees have the powers of
civil courts and are required to provide for conciliation before initiating an
inquiry if requested by the complainant.
·
Penalties have been prescribed for employers
for non-compliance with the provisions of the Act.
·
The State Government will notify the District
Officer in every district, who will constitute a Local Complaints Committee
(LCC) to enable women in the unorganized sector or small establishments to work
in an environment free of sexual harassment.
She-
Box :
·
The Ministry of Women & Child Development
had launched Sexual Harassment electronic Box (She-Box) to provide single
window access to every woman, irrespective of her work status, whether working
in the organized or unorganized, private or public sector, to facilitate the
registration of complaint related to sexual harassment.
·
Any woman facing sexual harassment at the
workplace can register their complaint through this portal.
·
Once a complaint is submitted to the
‘She-Box’, it will be directly sent to the concerned authority having
jurisdiction to take action into the matter.al harassment.
Some
other judgements leading to the implementation of POSH Act:
1.
Rupan
Deol Bajaj vs. K.P.S. Gill (1995): A senior IAS officer was sexually
harassed (slapped on the posterior) by a superior officer and the recourse to
the limited provisions of the IPC under Section 354 and Section 509 were not
found sufficient by the High Court. This gap in the law was very apparent and
the need for further reforms on sexual harassment was obvious.
1.
Apparel
Export Promotion Council v. A.K Chopra (1999): The council
Chairman was accused of sexually harassing the secretary. Though he made
repeated attempts; the chairman never actually molested her. On her complaint
the employer was fired. On the basis of a writ petition filed by the employer
the Delhi High Court took cognizance of the fact that he never actually
molested her and did not make any actual physical contact. Thus concluding that
he did not actually molest her. In an appeal filed by the council, the Supreme
Court reversed the Delhi High Court Judgement, by widening the scope of sexual
harassment and ruling that “physical contact is not always
essential for an act amounting to workplace sexual harassment.” Sexual
harassment is seen as any ‘unwelcome’ act. The Apex Court asserted that sexual
harassment compromised the dignity of women and cannot be condoned.
2.
DS
Grewal v. Vimmi Joshi (2008): A colonel of the
Indian Army made advances and wrote inappropriate letters to the principal at
an army school. The principal was apprehensive that if she objected to his
conduct, he would create a hostile working environment and hinder her employment,
including her promotion. Her fears did come true as her services were
terminated. The Supreme Court ordered the school management to constitute a
three- member complaints committee (as mandated by Vishakha Guidelines) to
ascertain if there were any prima facie case against the army officer. If the
committee found such a case, it would submit its reports to the army, which
would then initiate disciplinary proceedings. The court also affirmed that the
school management was bound to bear the legal costs incurred by the principal
(with counsel fee assessed at 50,000) for it had not complied with Vishakha
Guidelines to begin with.
3.
Medha Kotwal Lele & Ors. v. Union of India & Ors. (2012): The Petitioner wrote a letter
highlighting several cases of sexual harassment and describing that the
Vishakha guidelines were not effectively implemented in the country. The letter
was converted into a writ petition and was filed in the Supreme Court of India
where the petitioner alleged that the guidelines that were laid down in the
Vishakha case were unable to curb sexual harassment in workplaces because these
guidelines were violated in both substance and spirit by the state authorities.
The Apex Court held that several states were not properly implementing the
guidelines. The Supreme Court issued the following directions:
o
State governments should make sure that there are
sufficient complaint committees made within each state to hear every single
complaint that is made and also these committees should be headed by a woman.
o
Appropriate mechanisms should be created by the state
authorities to make sure that effective implementation of the Vishakha
guidelines is taking place.
o
It shall be the duty of the Bar Council of India to make sure
that all the bar associations in the country and individuals registered with
the State Bar Councils adhere to the Vishakha guidelines.
o
In the case of non-compliance to the Vishakha guidelines,
it would be open for the aggrieved individuals to approach the High Court of
the concerned state.
4.
Seema Lepcha vs State of Sikkim and Others (2012): Seema Lepcha, a widow and a peon
working at the central bank was sexually harassed by the Chief Manager of the
Gangtok bank branch. Now as per the Vishakha guidelines, there needs to be an
independent committee looking after the sexual harassment cases in the
organizations which were not present at the bank workplace. A writ was filed in
the High Court of Sikkim concerning the absence of the independent complaint
committee in the bank. The High Court directed the respondents to create a
complaint committee and have the proper training for sensitization of the bank
employees and to structure policies for preventing cases of sexual harassment
in the workplace. The order of the High Court was challenged in the Supreme
Court where the Supreme Court gave the following guidelines:
o
The State government shall provide comprehensive
publicity to the notifications and orders issued by it in adherence to the
Vishaka guidelines and the directions issued in the Medha Kotwal case by the
Supreme Court and this should be done by publishing all the information in the
newspapers having the most circulation in the state after every two months.
o
Complete publicity should be given in Doordarshan about
the several steps taken by the state government for enacting the guidelines
laid down in the Vishakha case and the directions given by the Medha Kotwal
case.
o
Wide publicity should be given by the social welfare and
the legal service authority of Sikkim to the notifications and orders given by
the state government for both the government and private institutions.
5.
Mukesh & Anr. vs. State for NCT of Delhi & Ors. (2017):A 23-year-old was brutally raped and assaulted by six
individuals and her friend had been badly beaten up by the perpetrators. She
even got attacked by an iron rod because of which she had her intestines pulled
apart and then later on she died. The Supreme Court’s bench passed the death
penalty to all the persons involved except for the juvenile, who was convicted
and sentenced to three years in the reformation center. This incident shocked
the whole of India and it ignited the fire for women’s rights and safety in the
country. Several legislative reforms were made, the Criminal Law (Amendment)
Act 2013, was enacted which in the process provided for the amendments of Indian Penal Code, 1860; Code of Criminal Procedure,
1973, Indian Evidence Act, 1872, and Protection of Children from
Sexual Offences Act, 2012 with regards to the sexual offenses connected
laws. The amendment introduced Section 354A IPC which defines Sexual Harassment
and provides punishment for the same. A man committing any of the following
acts—
o
physical contact and advances involving unwelcome and explicit
sexual overtures; or
o
a demand or request for sexual favours; or
o
showing pornography against the will of a woman; or
o
Making sexually coloured remarks, shall be guilty of the
offence of sexual harassment and shall be punished with rigorous imprisonment
for a term which may extend to three years, or with fine, or both.
This
provision is not limited to sexual harassment at the workplace, but punishes
such harassment done anywhere.
Criminal
Law Provision
The provisions of the Indian Penal Code
(IPC) can aid in the event of sexual harassment in the work place and sexual
harassment of women. In the IPC, there is no chapter specifically dealing with
“Crimes against Women” and there is no act listed or described as “Sexual
Harassment”. To invoke the operation of penal provisions, the sole requirement
is that the act complained of i.e., sexual harassment must have all the
ingredients of the commission or commission of the offence. In the well-known
case of Vishakha the Supreme Court of India expressed its serious concern over
sexual harassment. The Court stated that, where "conduct amounts to a
specific offence under IPC or any other law" the employer is under a legal
obligation "to initiate appropriate action in accordance with law by making
a complaint with the appropriate authority". The Supreme Court observed
that “sexual harassment includes such unwelcome sexually determined behaviour
(whether directly or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually-colored remarks;
(d) showing pornography
(e) any other unwelcome physical, verbal or
non-verbal conduct of sexual nature.
Sections 292, 354 and 509 of the Indian
penal code cover such behaviour. It may be noted that the definition of sexual
harassment given by Supreme Court is an inclusive one. It does not preclude the
possibility of other serious manifestations of sexual harassment being covered
under offences that are already defined in the penal code.
The provisions of the IPC which may be used
in the case of sexual harassment at the workplace are:
|
Section 107-109
|
Abetment
|
|
Section 120A and 120B
|
Criminal Conspiracy
|
|
Section 166A
|
Public servant disobeying direction under law
|
|
Section 292-294
|
Obscenity
|
|
Section 306
|
Abetment of Suicide
|
|
Section 319-331
|
Relating to hurt and grievous hurt
|
|
Section 326A and 326B
|
Causing grievous hurt by use of acid, etc.
|
|
Section 339-348
|
Relating to wrongful restraint and wrongful confinement
|
|
Section 354
|
Assault of criminal force to women with intent to outrage her
modesty
|
|
Section 354A
|
Sexual harassment
|
|
Section 354B
|
Assault or criminal force with intent to disrobe
|
|
Section 354C
|
Voyeurism
|
|
Section 354D
|
Stalking
|
|
Section 375 and related provision
|
Rape
|
|
Section 376C
|
Sexual harassment by a person in authority
|
|
Section 415-417
|
Cheating
|
|
Section 499-500
|
Defamation
|
|
Section 503, 506 and 507
|
Criminal intimidation
|
|
Section 508
|
Act causing by including the person to believe that he will be
rendered the object of divine displeasure.
|
|
Section 509
|
Word, gesture or act intended to insult the modesty of a women
|
|
Section 511
|
Attempt to commit offence.
|
POSH During COVID-19 :
Will sexual
harassment in the workplace become less important in the post-Covid-19 work
environment? Maybe, but probably not. Working from home may just move the
harassment online.
At first glance, if
more work remains distanced in the post-Covid-19 world, opportunities for
workplace sexual harassment would seemingly necessarily decline. But
undermining this optimistic projection is the reality that industries that are most likely
to remain distanced—those mainly employing white-collar workers—already have
lower rates of sexual harassment than industries where most work can’t be
conducted remotely.
For those whose work
can remain distanced, can we hope that their experiences of sexual harassment
will decline? Not necessarily. The most common form of sexual
harassment—hostile work environment harassment that is sex-based but not
“sexual” as commonly understood—does not require in-person contact. This form of sexual
harassment undermines an individual’s work performance because of their sex or
gender by creating an intimidating, hostile, or offensive environment.
Distanced work is not immune to hostile work environment harassment; it may
even facilitate it through expanded digital opportunities.
With
remote working and lack of physical proximity, did all the sexual harassment at
workplace stop? Are internal committees relieved of handling any complaints?
The answer is no. Sexual harassment concerns still continue to exist, but the
modes of harassment and the scenarios have changed. With long working hours,
work weeks being extended into weekends, and multiple modes of interaction like
official chat rooms, emails, videos, and WhatsApp, the workplace has extended
to our homes and during most of the day. There is no demarcation between
personal and professional lives. Also, with limited social interactions outside
of work, the situation has become more complex for the already stressed working
professionals in the country. Due to employees working from home, harassment
has taken a new form and shape! It is now in the form of displaying
objectionable material on the screen during video calls, displaying
unacceptable screensavers with sexual connotations, getting into the personal
space of another employee by insisting they turn on video while calling, asking
personal questions on official platforms, calling a person during late hours
without any justification, taking screenshots of colleagues during video calls and
using such images inappropriately, displaying suggestive
words on attire like t-shirts during video calls, etc.
Indeed,
electronically sharing humiliating private messages and sexually suggestive or
hostile jokes, photos, videos, and memes—which can be widely circulated with a
touch of a key—is easier than in person, and can readily be employed to shame,
intimidate, or threaten targets. And unlike in-person meetings, it can be
fairly easy for those in higher positions to undermine their target’s work performance
by “accidently” muting, talking over, or excluding them from Zoom calls.
Furthermore, even
those who largely work remotely may be required to show up at a mostly empty
workplace on occasion. Isolated workplaces are a known risk factor for sexual harassment, and
in-person harassment may increase as fewer people in the workplace means fewer
potential witnesses.
Also problematic is
that reported cases may drop even without an actual decline in
harassment. Sexual harassment is substantially underreported, in
part because victims rightly fear retaliation. Remote work may lead to even
less reporting because what counts as sexual harassment is often unclear. This
opacity is exacerbated with remote work if there is less exchange of
information or if harassment takes new digital forms, leaving victims alone in
deciphering whether specific behaviors should be reported. Less reporting may
spuriously indicate an improved environment and in turn reduce pressure to stop
harassment.
In
addition to accelerating current trends to distanced work, the disruption to
the workplace caused by Covid-19 may have other longer-term consequences, some
positive, some less so. It is possible that our experience with Covid-19 might
change some workplace norms for the better and limit opportunities for
unwelcome sexual attention. For instance, will there be less hugging? More
respect for personal space? Reduced travel and socializing?
Less
positive is that changes in workplace structure have legal ramifications as
well. If former employees displaced because of Covid-19 turn to long-term
independent contractor status, they lose government protection against
employment discrimination, including sexual harassment (at least in the US). In
the absence of legal remedies for these workers, there could be an increase in
actual sexual harassment despite a decrease in reported harassment.
Challenges To Be Addressed :
This new way of
working has challenged both employees and employers alike. Employers have to
think creatively and out-of-the-box to impart new, effective ways of
sensitising the employees, moving away from traditional classroom trainings.
Remote working requires a conscious shift in the mindset of employees, too, to
ensure that they maintain professionalism in their emails, interactions, and
appearance while being in their personal space (home). It is difficult to make
that mental shift when each of your respective homes is now your “workplace”
and every interaction can come within the purview of the Act. Also, due to the
interactions now moving to phones or video calls in place of in-per-son
meetings, sexual harassment claims could arise due to misunderstanding or even
when done unintentionally. Another person’s tone can be misconstrued.
Accidentally enabling the video call option so that objectionable material is
seen by the other person could trigger sexual harassment claims. Using brackets
with H or B on an instant messaging platform could be sent as a hug or beer
emoticon, which can be considered offensive by the recipient. While conducting
investigations re-motely, maintaining confidentiality is the biggest challenge
for all parties, as we are constantly surrounded by others. The time taken for
investigations and closure of an inquiry may also be extended due to
non-availability of an internal committee quorum at the same time, preference
for personal cross-examinations, or the internal committees inability to
examine evidence during the COVID-19 situation.
Conclusion:
The positive impact
of the POSH Act as an effective legal recourse for women facing sexual
harassment in the workplace is visibly seen in the continuously rising numbers of complaints of
such cases every year. As the cases reported of sexual harassment at workplace
jumped up almost 54% in 2018 and 14% in 2019, there was a concern on the part
of people in general but the industry experts point out that this increase in
reportage is a healthy indicator. The total number of sexual harassment
complaints at workplaces in 44 Nifty companies fell 38.26% in FY21, showed data
analysed by anti-sexual harassment advisory complykaro.com from company annual
reports. These companies received a total of 455 complaints of sexual
harassment in the year ended 31 March, compared with 737 and 739 in FY20 and
FY19 respectively. It points to a greater awareness among women about
legislation on sexual harassment at the workplace as all organizations have
implemented the recommendations and provisions described under the POSH Act,
2013.
“Women are more prompt these days to
report any case of sexual misconduct and it is the responsibility of
organizations to take speedy action,” said Suresh Tripathi, vice president,
human resource management, Tata Steel, “Prompt action by organizations will act
as a deterrent for others, and it will encourage women to come out and report,”
he said, adding, “Increased reporting is good to start with as it means there
is more awareness. It (such cases) will plateau and start coming down…”
Everyone has turned to the usage of the
video calling for conferencing with people, which has made applications like
Zoom, WhatsApp, Microsoft teams, Hangouts, etc popular. For the purpose of
imparting education or for taking lectures-based classes and sharing study
materials, reference materials and for entertainment purposes for some during
online classes. However, as it goes with human nature, things can easily fall
into the wrong hands and as such there has been a growing rise in virtual
harassment through these media based technological platforms, especially during
the present ever extending lockdown.
Female teachers and faculties has
increasingly reported about privacy infringement and cyber security all over
the world, as a students conduct of the misbehavior remains unknown because
applications like Zoom which allow users to use any username with their
video off. Passing lewd comments, bullying, trolling, cyber flashing (forcefully
sending unsolicited pictures of private parts) and disruptive
communications, all of which become a medium to break the class ambience.
In India, the law is quiet in such manner as
taking of screen shots don't fall under the classification of voyeurism or
protection infringement as addressed to under Section 354C of the Indian Penal
Code and 66E of the Information Technology Act, both tending to voyeurism.
Thus, these cases are not legally addressed as there exists no mechanism for
control of grievances of the like, and are waived off on the basis of general
technological mishap and misunderstanding.
References
·
R.
Sakya, “Rape and Punishment in India”, Third Concept, October 2013
·
Jaswant
Saini, “Sexual Harassment of Women at Workplace”, Indian Journal of Social
Concerns, Vol. 3, No. 7, January 2014.
·
K.
Chattopadhyay, Indian Women’s Battle for Freedom, Abhinav Publications, New
Delhi, 1983.
·
R.
B. S. Verma and Others, Towards Empowering Indian Women, Serial Publication,
New Delhi, 2007.
·
R.
D. Murthy, “Woman, Crime and Victims”, The Indian Police Journal, Vol. LX, No.
4, October-December 2013.
·
Ram
Ahuja, Crime against Women, Rawat Publications, Jaipur, 1987.
·
S.
J. Philippa, “The Construct of Gender and Gendered Power Relations”, Women’s
Link, Vol.20, No.2, April-June 2014.
·
Sexual
Harassment at the Workplace Act, 2013.
Websites
6.
https://www.ungender.in/sexual-harassment-at-work-understand-the-rules-of-the-posh-act-in-6-minutes/
Article Information
Development Of Posh Act 2013 And Posh During Covid-19 (By- Ms. Diksha Thakur)
Author Name: Ms. Diksha Thakur
Title: Development Of Posh Act 2013 And Posh During Covid-19
Email Id: s.krishnan22@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/05/19
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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