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


High Court of Kerala on Thursday March 17 asked organizations associated with the film industry take steps to establish a joint committee to deal with cases of sexual harassment of women, in accordance with the Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redress) Act 2013.

In doing so, the court stressed that film production units must comply with the Sexual Harassment Act, commonly referred to as the Sexual Harassment Prevention Act or POSH Act, passed by Parliament in 2013. During the #MeToo movement, a number of women in India have called out influential men – actors, comedians, veteran journalists – for alleged sexual harassment.

The law against sexual harassment

The Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redress) Act was enacted in 2013. It defines sexual harassment, establishes complaint and investigation procedures, and measures to be taken. It expanded the Vishaka guidelines, which were already in place.

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Vishaka’s guidelines were established by the Supreme Court in a 1997 judgment. It was a case brought by women’s rights groups, including Vishaka. They had filed a public interest complaint regarding 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 law

The Visakha guidelines, which were legally binding, defined sexual harassment and imposed three essential obligations on institutions: prohibition, prevention, remedy. The Supreme Court ordered that they create a complaints committee, which would look into issues of sexual harassment of women in the workplace.

The 2013 law broadened these orientations.

It required every employer to set up an internal complaints committee (ICC) in every office or branch with 10 or more employees. It provides procedures and defines various aspects of sexual harassment, including the aggrieved victim, who can be a woman “of any age, employed or not”, who “claims to have been the victim of an act of sexual harassment”.

This meant that the rights of all women working or visiting a workplace, in whatever capacity, were protected by law.

Definition of sexual harassment

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

* Physical contact and advances

* A request or request for sexual favors

* Remarks with a sexual connotation

* Show pornography

* Any other unwelcome physical, verbal or non-verbal behavior of a sexual nature.

The Ministry of Women and Child Development has published a manual on Sexual Harassment of Women in the Workplace with more detailed examples of behaviors that constitute sexual harassment in the workplace. These include, broadly:

* Sexually suggestive remarks or innuendo; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life

* Viewing sexist or offensive images, posters, MMS, SMS, WhatsApp or emails

* Intimidation, threats, blackmail around sexual favors; also, threats, intimidation or retaliation against an employee who speaks about it

* Unwelcome social invitations with sexual overtones, generally considered flirting

* Unwelcome sexual advances.

The manual states that “unwanted behavior” is experienced when the victim feels unwell or helpless; it causes anger/sadness or negative self-esteem. He adds that the unwanted behavior is “unlawful, demeaning, invasive, one-sided and power-based.”

In addition, the law mentions five circumstances that constitute sexual harassment – the implicit or explicit promise of preferential treatment in one’s job; implicit or explicit threat of harmful treatment; implicit or explicit threat as to his current or future employment; interfering with his work or creating an offensive or hostile work environment; humiliating treatment likely to affect his or her health or safety.

Complaints procedure

Technically, it is not mandatory for the injured victim to file a complaint for the ICC to act. The law says she ‘may’ do so – and if she cannot, any ICC member ‘must’ give her ‘all reasonable assistance’ to file a complaint in writing. If the wife cannot complain because of “physical or mental incapacity or death or otherwise”, her legal heir can do so.

Under the law, the complaint must be filed “within three months of the date of the incident”. However, the ICC can “extend the time limit” if “it is satisfied that the circumstances were such that they prevented the woman from filing a complaint within the said time limit”.

The ICC “may”, before investigation, and “at the request of the aggrieved woman, take steps to settle the matter between her and the defendant by conciliation” – provided that “no pecuniary settlement is reached as basis of reconciliation”.

The ICC can either forward the victim’s complaint to the police or open an investigation which must be completed within 90 days. The ICC has powers similar to those of a civil court with respect to the summoning and examination of any person under oath, and the requirement of the discovery and production of documents.

When the investigation is complete, 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, of the respondent, of the witness, any information about the investigation, the recommendation and the measures taken, stipulates the law, must not be made public.

After the ICC report

If the allegations of sexual harassment are proven, the ICC recommends that the employer act “in accordance with the provisions of the service regulations” of the company. These may vary from company to company. It also recommends that the company deduct from the wages of the convicted person, “whatever it deems appropriate”.

Compensation is determined based on five aspects: the pain and emotional distress caused to the woman; loss of career opportunities; his medical expenses; the respondent’s income and financial situation; and the feasibility of such payment.

After the recommendations, the aggrieved woman or the defendant can appeal to the court within 90 days

Article 14 of the law deals with penalties applicable to false or malicious complaints and false testimony. In such a case, the ICC “may recommend” that the employer take action against the woman, or the person who filed the complaint, “in accordance with the provisions of the service regulations”.

However, the law specifies that an action cannot be brought for “simple inability” to “substantiate the complaint or provide adequate proof”.

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