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POWER DYNAMICS UNDER POSH ACT, 2013: A MENACE FOR WOMEN BY: NITIKA GOYAL
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POWER
DYNAMICS UNDER POSH ACT, 2013:
A MENACE
FOR WOMEN
AUTHORED
BY: NITIKA GOYAL
Course: BBA
LL.B (H)
Amity University Rajasthan
Mobile No –
8949196634
ABSTRACT
Ruth Bader Ginsburg, who became the
second female justice of the U.S. Supreme Court, famously said that “women
belong in all places where decisions are made... It shouldn’t be that women are
the exception.”
But contrary to this and many other
sayings, since ancient times, women have been suppressed under the commonly
held beliefs of patriarchy and a male-dominated society. This problem has
persisted in our society until now, and women are considered weak and
vulnerable. The majority of the population in our country is comprised of
women, but they are the most disadvantageous group in our society because they
often have to leave many great opportunities due to old beliefs and customs
followed by our society. But many women of today's generation are trying to
break the superstitious norms and be independent by working.
No doubt the major steps taken by
women have helped them in every aspect, but sadly, they are also subjected to
harassment at the workplace. They do not have the freedom to make decisions and
are victims of power dynamics. Sexual harassment faced by women at the
workplace is a type of gender violence that lowers the self-esteem,
self-confidence, respect, and dignity of women, causing them physical as well
as mental pain. Undoubtedly, the quickly changing dynamics of the workplace
have brought attention to the subject of sexual harassment in the workplace. In
India, this is governed by the Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act). The Act protects
women against sexual harassment in the workplace. Because of a phenomenon known
as power dynamics, women are still frequently the victims of serious sexual
harassment at work, even after the passage of this Act. Therefore, the purpose
of this article is to critically analyse the POSH Act of 2013 and the landmark
ruling in order to shed light on this phenomenon and how it affects women. It
also offers some recommendations for how to solve this issue.
KEYWORDS: Patriarchy, Power Dynamics,
Sexual Harassment, POSH Act, Workplace
INTRODUCTION
Contrary to ancient times, women have
taken a major step in the field of education and have started working worldwide
for famous companies. They began to fight for their individual identities while
refusing to hide behind the curtain of a male-dominated society.
But as it is constantly proven through various cases that women are not safe anywhere, they started facing sexual harassment and other forms of harassment at the workplace as well.
It is a serious issue that tortures women, thereby affecting their mental and physical health. They face continuous torture as the offender has direct and daily access to the victims.
But as it is constantly proven through various cases that women are not safe anywhere, they started facing sexual harassment and other forms of harassment at the workplace as well.
It is a serious issue that tortures women, thereby affecting their mental and physical health. They face continuous torture as the offender has direct and daily access to the victims.
Thus, to curb this
issue, the honourable Supreme Court, in the landmark judgment of Vishakha v.
State of Rajasthan[1],
laid down the framework for sexual harassment at the workplace. In this case,
Bhanwari Devi, a social worker, was gang raped by men after she tried to
protest against the child marriage of a one-year-old girl. The Rajasthan High
Court gave a disappointing judgment by acquitting the accused. This caused a
serious outrage in public, leading to massive protests against the judgment in
support of Bhanwari Devi's rights. Due to this protest, the petition was moved
to the Supreme Court, and they formulated guidelines to combat sexual
harassment at the workplace. These guidelines' primary goal was to give victims
of workplace sexual harassment a forum for grievance procedures and remedies.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal)
Act, 2013 (POSH) was created with these rules as its driving force. The Act is
significant because it addresses the different forms of sexual harassment and
the channels through which a woman can file a complaint.
Even after these
guidelines and the implementation of the Sexual Harassment of Women at
Workplace (Prevention, Prohibition, and Redressal) Act, 2013, women are still
facing the problem of sexual harassment at the workplace. According to the
Forbes Report, there is a rise in the number of sexual harassment cases in
India's top companies. It said that even after a decade of the implementation
of the Act, sexual harassment continues to threaten the safety of women.
According to the reports, the total number of sexual harassment complaints at
workplaces climbed by 27 percent in the financial year ending March 2022
compared to the previous year, according to data analysis compiled by
anti-sexual harassment advisory Complykaro.com based on company annual reports.[2]
Data showed that these companies registered 759 cases in FY22, compared to 595
reported in FY21. Vishal Kedia, POSH expert and founder of Complykaro Services,
said in the reports that “work-from-home had resulted in a considerable
reduction in sexual harassment complaints, but they have again begun to rise
due to the opening of offices. The higher cases are due to the partial lifting
of lockdowns compared to last year."[3]
Thus, there are many
hurdles to the proper implementation of the Act, like non-compliance with the
rules and regulations of the Act, a lack of accountability about who is
responsible for the conduct of their employees, etc. The bigger problem
persisting in the workplace is power dynamics. Power dynamics provide more
dominating power to people in higher positions, and while misusing this power,
women often fall into the hands of powerful people and face sexual harassment.
Powerful people, mostly men in higher positions, abuse their power and, in
exchange for sexual favour, harass women at the workplace. Hence, even in this
developed society, sexual harassment still robs people of their dignity in
Indian workplaces, despite growing public awareness and corporate initiatives
to sensitize staff.
OVERVIEW
OF POSH ACT, 2013
The POSH Act, 2013 came after the landmark judgement given
by the honourable Supreme Court in the case of Vishakha v. the State of Rajasthan (1997)[4]. In this judgement the court defined the
sexual harassment which was included in the section 2(n) of the POSH Act, 2013.
It states that “sexual
harassment" includes any one or more of the following unwelcome acts or
behaviour (whether directly or by implication) namely: -
i.
physical contact and advances; or
ii.
a demand or request for sexual favours; or
iii.
making sexually coloured remarks; or
iv.
showing pornography; or
v.
any other unwelcome physical, verbal or non-verbal
conduct of sexual nature[5]
The
important definitions under POSH Act, 2013 is employee and a workplace. The Act
expanded the scope of the definitions so as to provide the benefit to large
number of victims facing sexual harassment.
·
Definition of employee is provided under section 2(f)
of the POSH Act, 2013. It states that “employee” means a person employed at a workplace for any work on
regular, temporary, ad hoc or daily wage basis, either directly or through an
agent, including a contractor, with or, without the knowledge of the principal
employer, whether for remuneration or not, or working on a voluntary basis or
otherwise, whether the terms of employment are express or implied and includes
a co-worker, a contract worker, probationer, trainee, apprentice or called by
any other such name”[6]
·
Definition of Workplace is
provided under section 2(o) of the POSH Act, 2013. It states that workplace
is any department, undertaking, establishment, office, institution, etc, wholly
or substantially controlled and financed by the appropriate government, any
private sector organisation, undertaking, trust, NGO’s, any hospitals, nursing
homes, any place visited by the employee arising out of or during the course of
employment including transportation by the employer for undertaking such journey,
etc.[7]
Some of the key
provisions of the act includes:
1. The
employer is required to forbid and prevent sexual harassment in the workplace
2. To ensure
that women have a safe workplace, the employer is also required to regularly
organize awareness campaigns.
3. In order to
handle allegations of sexual harassment, the employer is obligated to form an
internal complaints committee. Appropriate complaint procedures ought to be
used.
4. The act
carries fines and penalties for noncompliance.
Sexual harassment can
involve more than just asking for sexual favours or unwelcome physical contact;
it can also involve the emotional burden that the harasser suffers as a result
of coercion, sexual assault, or unwanted attention. In order to attain high
workplace productivity, it is critical that authorities and employers embrace,
put into practice, and support best practices for identifying and handling
workplace harassment.
POWER DYNAMICS
AND SEXUAL HARASSMENT AT WORKPLACE: CONNECTING LINK
Sexual harassment at workplace occurs
due to many causes but one of the major causes of this issue is power dynamics.
Workplace often maintains the hierarchy of work according to the distribution
of powers, and position of employee, thus, power dynamics in a workplace is
nothing but distribution and exercise of power among individuals in different
positions. Thus, it is a relationship between people in the organization. Power
is the ability to influence and direct others to do something or not to do
something. Basically, powerful people can govern others at every level. When
power is distributed appropriately by giving others the equal opportunity of
being heard and valuing their perspectives, it can be considered a good thing.
But an unequal and disproportionate distribution of power can convert it into
an oppressive force. It can be called coercive power, which is used to control
another person. It is a well-known concept in our traditional society that
those who have more power often dominate others by formulating their own
standards, policies, etc. It is evident that in a patriarchal society, most
power lies with men, whether in the household or workplace.
Various studies and journals showcase
that sexual harassment is primarily about power dynamics. A survey conducted by
the Equal Employment Opportunity Commission (EEOC) in the United States found
that over 75% of workplace harassment incidents involve a power dynamic, where
the harasser holds authority over the victim.[8]
Also, a study published in a journal on Organizational Behaviour and
Human Decision Processes[9]
revealed that sexual harassment is often perpetrated by individuals seeking to
assert dominance rather than being driven by romantic interest. These findings
underline that sexual harassment is a manifestation of unequal power
relationships, fostering an environment of fear and exploitation.[10]
Thus,
many people in a workplace, that are mostly men often misuse power dynamics and
instigate sexual harassment. These dynamics have a big impact on sexual
harassment incidents as powerful employer has a considerable influence upon the
powerless victims. Powerful individuals thus, abuse their position to commit
such wrongdoing, fostering a hostile environment. Women are frequently viewed as a
vulnerable group and thus believed to be more likely to become entangled in the
web of power dynamics. Using this power dynamics the offender can request for
any sexual favours from the victim, harass the victim physically or verbally by
any behaviour of sexual nature, etc.
CONCEPT OF QUID PRO QUO:
It is a situation where all the
decisions about employment are based on exchanging sexual favours. It exploits
the power imbalance between the offender and the victim. The offender takes
advantage of power dynamics to influence the victim to do them a sexual favour.
The offender has the direct control over the victim through superior authority.
Some of the situations of Quid Pro Quo are:
·
asking sexual favours in exchange of promotion or a
raise
·
making all the employment decisions based on the
sexual relationship between the offender and the victim.
·
a manager or supervisor making sexual attempts towards
a worker in exchange for a job offer
·
abusing the power of authority and making the victim
uncomfortable by commenting sexually about the victim and behaving in
sexual nature, etc.
The use of
power dynamics in sexual harassment fosters a hostile and unhealthy work
atmosphere. It affects the morale and productivity of the sufferers, which is
problematic. The victims live in perpetual anxiety, which creates an
uncomfortable atmosphere and undermines their faith in higher authorities. The
victims endure physical and mental scarring, which exacerbates anxiety,
despair, stress, and other problems.
Due to the
dynamics of power, the victims' decisions about their employment are influenced
by the authorities; as a result, the victims are afraid of reprisal and choose
not to disclose the occurrence of workplace sexual harassment. The victims live
in continual terror of losing their jobs, having their reputations ruined,
suffering career-related consequences, etc. As a result, victims frequently
decide to suffer in quiet because they do not want to take revenge on the
higher authorities. The main reason of
why the women is subjected to risk of sexual harassment through power dynamics
is because the higher authorities are generally male. As women are tied to the
chains of the old belief of patriarchy, women lack leadership positions.
To prevent
sexual harassment arising out of power dynamics, senior leadership should understand
the impact of their power and use it in the right direction. They must be aware
of the severity of sexual harassment committed against the victims, and the
workplace should properly communicate the policies regarding sexual harassment
committed against the victims by higher authorities. There must be a proper
procedure for taking disciplinary action against the higher-ups, which should
encourage the victims to bring the case against the higher authorities.
Maintaining a proper work-power balance and establishing strict procedures for
punishment will help curb this issue in the future.
SUGGESTIONS TO CURB THE ISSUE
Some
suggestions on how this serious issue of sexual harassment at the workplace due
to power dynamics can be eliminated are:
1. Training
program: it should be mandatory in every organization to conduct training and
awareness programs so as to make its employees aware of the prevention of
sexual harassment at the workplace, workplace ethics and behaviour, the issue
of power dynamics and how power should be equally divided among men and women,
etc. This will help to build a safe working environment and a culture of
respect in the organization.
2. Strict
penalties: if a case of sexual harassment at the workplace comes up, then
stricter penalties need to be imposed upon the wrongdoer so as to create fear
among the people to not repeat this act again and also to provide fair justice
to the victims.
3. Protection
of whistleblowers: most of the victims do not report cases of sexual harassment
because, due to power dynamics, they fear losing their job and their respect
and dignity. Thus, organizations should make a provision regarding the
protection of whistleblowers so that more reliable cases can be reported and
action can be taken in a speedy manner.
4. Complaint
committee: As per the guidelines of the Supreme Court in the Vishakha judgment,
every company having more than 10 employees must constitute an internal
complaints committee to address the problem of sexual harassment at the
workplace. But even after that, most companies have not complied with it. So
inspections should be done regarding the same, and stricter penalties should be
imposed on the organization that hasn't complied with the rules.
5. Changing
culture: Our society is developing at a fast pace, and thus organizations must
adapt to the change and should forget about the patriarchal society. Women
should also be provided with the opportunity to be the leaders of the
organization. This will change the concept of power dynamics by changing the evolution
of power in the organization.
6. Rigid
rules: Create and implement robust anti-harassment rules that safeguard all
staff members, regardless of their position or gender. Strong and unambiguous
policy must be supported by equally strong and unambiguous execution. Evaluate
and modify these policies on a regular basis to address changing demands.
LANDMARK JUDGEMENT
UNION OF INDIA AND ORS V.
MUDRIKA SINGH, SUPREME COURT, 2021[11]
FACTS: The victim in this case was a
constable in the Border Security Force. The complainant was on a night duty on
April 16, 2006. The other day in the morning that is on April 17, 2006 the head
constable in the Border Security Force named Mudrika Singh committed an act of
sexual offence that is sodomy on the complainant. The commandant upon
investigations found that there were discrepancies regarding the date on which
the incident has occurred, subsequently the Summary Security Force found the
respondent guilty and demoted him to the position of constable as a punishment.
The respondent moved to the Calcutta High Court.
The Union of India and
representatives of the Border Security Force approached the Supreme Court of
India to challenge the Calcutta High Court's judgement, which cleared the
accused of all charges against him. They also sought to have the
"hyper-technical view" adopted by the Single Judge and Division Bench
of the Calcutta High Court while making their decision reviewed.
ISSUE: whether the accused is liable for
committing the sexual offence on the complainant?
HELD: The
Honourable Supreme Court held that “deeming
such a trivial aspect to be of monumental relevance, while invalidating the
entirety of the disciplinary proceedings against the superior and reinstating
him to his position renders the complainant ‘s remedy at nought.”[12] The court further held that “We implore courts to
interpret service rules and statutory regulations governing the prevention of
sexual harassment at the workplace in a manner that metes out procedural and
substantive justice to all the parties.”
The
Supreme Court in this case also observed the important concept of power
dynamics at workplace which leads to sexual harassment. The court by
pronouncing the judgement said that “It is
also important to be mindful of the power dynamics that are mired in
sexual harassment at the workplace. There are several considerations and
deterrents that a subordinate aggrieved of sexual harassment has to face when
they consider reporting sexual misconduct of their superior.”[13]
After
observing all the concerned facts and data and analysing the matter the
Honourable Supreme Court set aside the impugned judgement and order pronounced
by the Calcutta High Court.
CONCLUSION
The
frequency of sexual harassment in the workplace is rising daily. Those who have considerable influence
on the employee are abusing their authority and committing the act of sexual
exploitation under the defence blanket of higher authority and power. Most of
the victims remain silent on the topic and refuse to seek justice due to
constant intimidation from the higher authorities, who have the power to
destroy their careers. As it is famously said by Martin Luther King Jr. that “Our
lives begin to end the day we become silent about things that matter.”
Hence, it’s high time that our society should address such important and
serious issue without any fear and should work towards providing justice to the
victims who suffer silently.
In order to curb this issue, it
becomes very important to understand the power dynamics at the workplace.
Through its analysis, it becomes easy to comprehend why sexual harassment
occurs and how it might be avoided by looking out for red flags. Changing the
power dynamics in a workplace will help to eliminate the issue of sexual
harassment as it is the root of all the problem. It's time that every workplace
considers this issue with severity and acts upon it on an urgent basis by
implementing proper rules and regulations about the power imbalance within the
workplace and establishing guidelines for taking immediate action against the
wrongdoers.
[1] Air 1997 Sc 3011
[2] The analysis has considered only
companies in the BSE 100 index which account for over 65 percent of total
market capitalisation of listed firms in India. (https://www.forbesindia.com/)
[3] Sultana,
N. (2022, October 21). Rise in sexual harassment cases in India's top
companies shows dichotomy. Forbes India. https://www.forbesindia.com/article/take-one-big-story-of-the-day/rise-in-sexual-harassment-cases-in-indias-top-companies-shows-dichotomy/80721/1
[4] Air 1997 Sc 3011
[5] Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013. (2013, April
22). https://www.indiacode.nic.in/handle/123456789/2104?sam_handle=123456789/1362
[6] Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013. (2013, April
22). https://www.indiacode.nic.in/handle/123456789/2104?sam_handle=123456789/1362
[7] Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013. (2013, April
22). https://www.indiacode.nic.in/handle/123456789/2104?sam_handle=123456789/1362
[8] Narayan, A. (2023, September 12). Unveiling the Power
Dynamics: Exploring the Connection between Power and Sexual Harassment in the
Workplace. KelpHR. https://www.kelphr.com/blogs/unveiling-the-power-dynamics-exploring-the-connection-between-power-and-sexual-harassment-in-the-workplace/
[9] Kray, L. J., Kennedy, J. A., & Rosenblum, M.
(2022, September). Who do they think they are?: A social-cognitive account of
gender differences in social sexual identity and behavior at work.
Organizational Behavior and Human Decision Processes, 172, 104186. https://doi.org/10.1016/j.obhdp.2022.104186
[10] Narayan, A. (2023, September 12). Unveiling the Power
Dynamics: Exploring the Connection between Power and Sexual Harassment in the
Workplace. KelpHR. https://www.kelphr.com/blogs/unveiling-the-power-dynamics-exploring-the-connection-between-power-and-sexual-harassment-in-the-workplace/
[11] Civil Appeal No. 6859 of 2021
[12] SCC Online® | The Surest Way To
Legal Research. (n.d.). SCC Online® | the Surest Way to Legal Research. https://www.scconline.com/
[13] SCC Online® | The Surest Way To
Legal Research. (n.d.). SCC Online® | the Surest Way to Legal Research. https://www.scconline.com/
Article Information
POWER DYNAMICS UNDER POSH ACT, 2013: A MENACE FOR WOMEN BY: NITIKA GOYAL
Authors: NITIKA GOYAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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