INTRODUCTION
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('POSH Act') was enforced by the Ministry of Women and Child Development in 2013. Prior to the POSH Act, India did not have any legislation addressing the issue of sexual harassment at the workplace. Following the enactment of the POSH Act, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ('POSH rules') were notified by the government. POSH is comprehensive legislation enacted to forestall workplace sexual harassment against women and provide them with a secure working environment. This article would first discuss the evolution of the POSH Act. Further, it would examine the flaws of the POSH Act. Lastly, the article analyses the impact and influence of the POSH Act on corporates.
EVOLUTION OF POSH ACT
1. Vishaka v. State of Rajasthan
In the Vishaka v. State of Rajasthan ('Vishaka') case, the Supreme Court acknowledged for the first time that the problem of workplace sexual harassment is a human rights violation. In this case, Bhanwari Devi, a social activist, fought against child marriages and stopped the wedding of a one-year-old girl. The men of that community were infuriated by her work and eventually gang-raped Bhanwari Devi. Various women activists, including Vishaka, filed a Public Interest Litigation before the Supreme Court. The Court laid down the following guidelines which were made legally binding:
- It acknowledged that such incidents are a violation of fundamental rights guaranteed under the constitution and also pronounced that the Parliament should come up with formal legislation regarding sexual harassment at the workplace.
- It defined 'sexual harassment' as “any unwelcome sexually determined behaviour as a) physical contact and advances; b) a demand/ request for sexual favours; c) sexually coloured remarks; d) showing pornography; e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.”
- It ordered the establishment of a Grievance Redressal mechanism to address the issue of sexual harassment at the workplace. It laid down the composition of the complaints committee.
- It shifted the responsibility from individuals to organizations and posited that the employers are responsible to ensure that women do not face a hostile working environment. Thus, the prevention of such acts should be prioritized.
The Vishaka guidelines remained the cornerstone for the enactment of the POSH Act, 2013. There were several judgments post Vishaka which stressed the importance of implementation of Vishaka guidelines.
2. Judgments post Vishaka
The court, in the case of Apparel Export Promotion Council v. A.K. Chopra, restated the law laid down in the Vishaka judgment. Further, in the case of Medha Kotwal Lele & Ors. v. Union of India & Ors., the Supreme Court emphasised that Vishaka guidelines need to be implemented in substance and not just in legal form to enable a safe working environment for women. The court ordered the state governments to submit a report on the implementation of the Vishaka guidelines in the state. It allowed the aggrieved to approach the courts in case of non-compliance with the Vishaka guidelines.
3. Legislative Initiatives
The process for formulating legislation for the protection of women against sexual harassment at the workplace commenced in 2007 when the draft bill was approved by the Union Cabinet. The Bill went through several amendments after which it was finally passed by the Lok Sabha in 2012. The bill was passed by the Rajya Sabha in the following year. Finally, it was enacted by the Ministry of Women and Child Development on 9th December 2013. The unfortunate fact is that the legislation was enacted after 16 years of the Vishaka judgment. However, the silver lining is that formal legislation is finally enacted.
FLAWS CONCERNING THE POSH ACT
1. Gender Neutrality
The act is formed to prevent sexual harassment at the workplace solely against women. No alternative laws are providing such protection for men at the workplace in the country. The act was formulated by considering the social dynamics of the country wherein the victims of sexual harassment are usually women. The history of our country shows that India is a patriarchal country where women have always been dominated by men at home, office, etc. However, with the changing society over the past few years, it is time that we amend the POSH Act to make it gender-neutral. Most countries have already made their sexual harassment laws gender-neutral. According to a survey by Economic Times, it has been revealed that 19% of men have been harassed sexually at the office. In Bangalore and Delhi, 51% and 31% of men surveyed respectively have states that they have been victims of sexual harassment. The primary reason why India is unable to enact such a law is that Indian society does not accept the subordination of men. Many cases go unreported since the aggrieved men are wary of being subject to 'social ridicule'. India was late in enacting formal legislation for the prevention of sexual harassment against women. It is high time India extends those safety provisions to men as well.
2. Composition of the Internal Committee
Certain provisions of the act are ambiguous and thus, need an amendment. Firstly, the act requires a senior woman employee to be the presiding officer of the internal committee. The act does not provide for a situation wherein there are no senior women employees in the organization. The uncertainty is regarding whether appointing a junior-level women employee to such a position in absence of a senior women employee would suffice the requirements of the act. Further, there can be an element of bias since the internal committee will be appointed by the employer. Though it is said that an external member should be appointed as a member of the committee, the relationship between the employer and the member is not supervised. Employers can appoint the committee members according to their discretion and will assume control within the committee. This will go against the very basis on which the Act is enacted. The act should be amended and the definition of 'relative person' with reference to the employer can be inserted. The appointment of the members of the internal committee can be made independent and there can be a provision that no 'relative persons' of the employer can be appointed.
3. Absence of an external member
The act requires three members including the presiding officer to be mandatorily present while conducting an inquiry. The provision for having an external member in the internal committee was to ensure the independence of the committee. However, the act does not mention the mandatory presence of the external member. In such a situation, the spirit of the legislation will be defeated. The legislature should clarify this aspect. Further, one method of ensuring the presence of the members is to make a provision for virtual meetings.
4. Anonymous Complaints
The act does not recognize the filing of anonymous complaints. A complaint can be filed either by the aggrieved woman or any other person authorised by the woman under the act. Thus, there is no obligation on the part of the employers to proceed with a complaint in case it is anonymous. Various aggrieved women do not like to be identified and thus prefer to make anonymous complaints. While it is imperative to create a provision that encourages anonymous complaints, the implementation of such a provision would be a tedious task. The process of interviewing the complainant and the evidentiary requirements would make the committee's job tough.
5. Poor supervision regarding implementation of the Act
Various reports and interviews have shown that the POSH act is not followed in substance and there are implementation problems that do not assist in attaining the objectives of the act. According to the Indian National Bar Association survey, 2017, it was found that the authorities were not complying with the law and the members of the internal committee could not understand and apply the complaint and inquiry process adequately. 23% of organizations were not compliant with the POSH Act by 2018. Further, the government has not published data relating to the operations of the Local committees that deal with complaints in the informal sector. The objectives of the act can never be achieved in case there is no proper monitoring system concerning the functioning of the committees. There needs to be an audit regarding the functioning of these committees and data needs to be published online on an annual basis. For effective implementation, the government should ensure sensitization and awareness programs and supervise and monitor the functioning of the local committees and compliances by the corporates. SHe-Box is a welcome step wherein a complaint can be registered by the aggrieved women and the complainant can track the progress of the complaint. However, there are innumerable women who are not aware of SHe-Box and many do not have access to the internet and phones.
IMPACT AND INFLUENCE OF THE POSH ACT ON CORPORATES
Having discussed the various ambiguities posited by the act, it would be safe to claim that corporates must be finding it tedious to incorporate and implement the provisions in their organizations. Non-compliance with the law arising pursuant to the uncertainty in various provisions of the act can result in an enormous financial penalty being demanded from the corporates. It is advisable for the corporates to go over and above the act and form a policy that would contain stringent measures than those provided under the act. Some companies have been lauded for their efforts at forming a policy that is progressive than the POSH act. For example – Organizations like TATA Steel and Hindustan Coco-Cola have gender-neutral sexual harassment policies. Further, TATA has extended its POSH policy towards LGBTQ harassment and has launched a group to track and monitor LGBT activities in the organization. Hindustan Coco-Cola has an effective policy by making it user-friendly and providing continuous training regarding these issues. They enact stories, role plays, and face-to-face training in the sensitization sessions for better results. Further, Tech Mahindra has ensured the investigation of anonymous complaints. The stories of these companies show that some companies have been performing a proactive role in ensuring the implementation of POSH and thereby managing their goodwill as well as reputation. Here are some impacts that the POSH Act can have on corporates:
1. Financial Repercussions
The POSH Act already specifies the monetary liability that the company will have to bear in case there is non-compliance with the provisions of the act. 65 percent of participants of the survey conducted by the Indian National Bar Association revealed that most companies do not comply with the POSH Act. Further, the compensation required to be paid in a court case involves huge tons of money. For instance – the Infosys director Phaneesh Murthy was accused of sexually harassing his secretary and thus, had to pay compensation amounting to $3 million as settlement. In the Novasoft Technologies case, the Vice-President was sexually harassed by two officers in the company. The aggrieved received Rs 2 crores by the arbitrator for the non-constitution of the internal committee. However, aggrieved by the decision of the arbitrator, she went to court and was awarded another Rs 1.68 crores. In addition, the stocks of the company would be affected negatively as soon as sexual harassment claims hit the news. Financial losses would also result due to absenteeism, lower employee productivity, and losing clients.
2. Reputational Hazards
Non-compliance with the POSH act can give rise to reputational risks and affect the goodwill of the company. Further, insensitive handling of a sexual harassment complaint would also attract public resentment and the company would be risking its reputation. The Tehelka case study is illustrative of the reputational hazards that would be faced by the company.
The correspondent of Tehelka, one of India's famous print houses, accused its founder and editor-in-chief Tarun Tejpal of sexually harassing her in a lift. The news of the sexual harassment came as a shock for the public since the organization was known for investigative and responsible journalism. But the downfall of the organization happened when the management tried to handle the claims insensitively. The Managing Editor of Tehelka tried to downplay the event by trying to character assassinate and intimidate the aggrieved. Many such incidents of sexual harassment were tried to be hidden by the management. When the incident happened, there was no POSH act. Companies had to follow the Vishaka guidelines to prevent sexual harassment at the workplace. Tehelka had no complaints committee and did not follow other procedures mandated by the Vishaka judgment. Tejpal stepped down from the editorship without following the process of investigation or appropriate punishment. The management did not respond to the complaint adequately which affected the credibility of the organization.
CONCLUSION
The POSH Act did bring about a positive change in ensuring a safe working space for women. However, the problem of implementation was an obstacle in attaining the objectives of the act. Further, the legislature has to fill the gaps and loopholes present in the act. Otherwise, the act would be reduced to futile legislation. Even the Vishaka guidelines were more stringent than the act. The above discourse on the impacts of the POSH act on the corporates reveals that the POSH Act has extreme effects on the organization. Organizations like TATA Steel and Hindustan Coco-Cola have achieved goodwill by implementing sexual harassment policy. Whereas companies like Tehelka failed due to inadequacy in the implementation of the sexual harassment policy. The manner of implementation of the POSH act influences the way the public perceives the corporate organization.
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