This blog is written by Vivek Serjy, Student, Christ University, Bangalore
INTRODUCTION
It has been 11 years since the Prevention of Sexual Harassment at Workplace 2013[POSH Act] has been implemented. POSH Act is one of the statutes that protect women in India. As India is resurging in the economy and gladly, there is clear visibility that more women are entering into employment, the incidents of sexual harassment taking place at the workplace are the elephant of the room that India faces and even worse is that such incidents still go unreported or no significant action against it takes place.
What is it to blame for persisting incidents of sexual harassment at the workplace even though the enactment of the POSH Act is implemented? To be precise, is it the poor enforcement of the POSH Act by the concerned authorities or are there still loopholes present within the Act?
HISTORY & BACKGROUND
The enactment of the POSH Act traces back to the esteemed case of Vishaka v. State of Rajasthan where the Supreme Court issued its guidelines regarding the Convention on the Elimination of All Forms of Discrimination against Women [CEDAW]. In the Vishakha case, the victim was a female grass-roots worker employed in the Women’s Development Program by the Rajasthan Government. She was gang-raped in front of her husband for the reason for stopping child marriage taking place in a village. The Trial Court acquitted the accused, but the victim did not stop to attain her justice. The 5 NGOs in support of her filed a PIL to the Supreme Court seeking on prevention of sexual harassment in the workplace.
Due to a lack of statute to protect women against sexual harassment in the workplace, the Supreme Court relied on international treaties and covenants and an Australian Judgement to arrive at a decision’s justification. Supreme Court in this case issued guidelines for the protection of women in the workplace and defining the term ‘sexual harassment’. Also, in the guidelines, the Supreme Court mentioned the necessity of constituting a committee by the employer for redressal of the sexual harassment case. The Supreme Court treated these guidelines as law under Article 141 of the Indian Constitution.
POSH ACT 2013
The POSH Act 2013 after being enacted enumerates certain features for the protection of women against sexual harassment in the workplace. It defines the term ‘sexual harassment’ under Section 2(n) where the acts include 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[i].
The Act applies to all the aggrieved women irrespective of their background and place of occupation as well as whether the sector is unorganised or organised. The Act is also applied to the schools and colleges as well as the hospitals.
Under Section 2(g) of the Act, the employer can any person who is responsible for management, supervision and control of the workplace including the person who formulates and administers the policy of such organization[ii].
The workplace is not restricted to offices but to all such as sports complexes and transportation. Telecommuting is also part of the Act.
The employer is bound to set up the committee called Internal Complaint Committee (ICC) if any case of sexual harassment is reported within the organisation and the ICC ought to inquire and redress the issue without delay. All the inquiry proceedings must be confidential and any contravention of it would be subject to penalties stated under the Act.
The Act also obligates employers to render awareness programs of sexual harassment to the persons and can be inculcated through banners and posters or eLearning courses to the persons.
IS THE SYSTEM OF THE INTERNAL COMPLAINT COMMITTEE FAIR?
The success of justice within India is when justice is fought and earned, and this can take place only when there is a free and fair justice system. Indian Judiciary through its judicial activism and staunch protector of Fundamental Rights of the Constitution earned its righteousness and faith within people. From series of landmark cases including the Vishakha case demonstrates the fairness of the Indian Judiciary.
At the same time, the Indian Judiciary is overburdened with an immense number of cases that the public often criticises for its delay in justice. As the Indian Judiciary considered the statement ‘Justice Delayed is Justice Denied’, the Indian Judiciary decided in the Vishakha case through its guidelines the necessity to constitute the Internal Complaint Committee by the employer in an organization for fast redressal. This was later adopted in the POSH Act under Section 4.
However, the moot question is whether the redressal system of ICC is the best system to solve the cases of Sexual harassment. The rationale for ICC is to provide quick redressal but are the elements of fairness and non-biasness followed upon under principles of equity and justice?
Under Section 4 of the POSH Act, the ICC is mandatorily constituted by the employer which comprises a Presiding Officer who is a woman ideally a senior employee in the workplace and other members not less than 2 who are preferably women who have had experience in social work or legal knowledge. Also, one member should be amongst non-governmental organisations or associations committed to the cause of women. Moreover, the committee must comprise of women at least one-half of the members.
The effectiveness of POSH Act hinges on well-functioning Internal Complaints Committee (ICCs). Taking a reality check on the fairness and expectations of ICC in India, the responses shown by the people are dissatisfactory. Indian National Bar Association conducted a survey concerning sexual harassment against women in the workplace in 2017 and it was found that sexual harassment was very prevalent in the workplace and many women chose not to report it due to the fear of retribution and loss of job. Moreover, there is a factor of stigma, embarrassment or lack of awareness of the reporting procedure.
The crucial point to highlight is that the functioning of ICC is likely to be biased. The reason is simple ICC is not independent, instead, it is formed by the organisation itself. For instance, if the highest echelon of the organisation is accused, then the ICC is just merely a rubberstamp because the highest echelons can easily influence the decision of the ICC in their favour thus making it biased. Even though Section 5 of the POSH Act provides the Local Complaint Committee which is governed by Local District, it will be applicable only when ICC is not constituted or the employer itself as mentioned in Section 6. Thus, it renders a long process making it risky for the victim to lose its evidence and witnesses.
For instance, a nursing officer working in a Government Hospital in Delhi appeared at ICC after the case was filed. The members of the ICC failed to intervene in the case as the accused was their supervisor. When the accused entered the room, all the members rose in respect. This clearly showed the element of bias. Members also threatened the victim to withdraw the case. As the victim appealed to the Delhi Commission for Women, the DCW passed the case to the Local Complaints Committee but the Committee stated that in their final report, there was not enough evidence.
However, the Local Committee has its limitations. The LCC does not receive as much funds from the government. Under budget, there is no separate provision marked for the implementation of POSH. As a result, the functioning of LCC is deeply affected. For instance, the committee members are not paid for travel fees to hear the case.
Thus, ICC does have the element of bias. There is no speedy redressal of cases if the system of redressal is in favour of the strong against the weak. The women in India especially in the unorganised sector where the job for the women is bread and butter for the family, these women cannot risk losing the job. Besides, women in general struggle to work in the public sphere as they are traditionally discouraged by their families and society not to working. So, women in general do not want to experience such untowardly experience through ICC which could affect their work life and this fear is exploited to at great extent by the men.
Therefore, the ICC redressal system needed to be repealed and establish the Local Complaints Committee as an alternative redressal system so that it acts as impartial and independent and brings forth justice to the victims. Local Complaints Committee can replace the ICC as a whole. For that, the State Government can pump in more funds to the LCC for redressing the sexual harassment cases and the members comprised can be appointed by the respective State Women’s Commission. The National Commission for Women (NCW) can oversee the functioning and the effectiveness of the LCCs across the country.
NCW must exercise its functioning of an independent oversight mechanism. The independent oversight mechanism must ensure timely guidelines to the respective State Women’s Commission as well as LCC over its appointment procedures by the respective State Women’s Commission. The guidelines must also provide the mandatory recusal steps by the member if the member has interest in the case. Moreover, the amendment must be inserted where High Court of respective States have the oversight over the functioning of the Local Complaints Committee and timely due reports over the LCC functioning by respective State Women’s commission must be given to the respective State High Court.
The LCC can be set up at a Municipal level in urban areas and taluk level in rural areas instead of district level. This would ensure victims and members to have easy accessibility to conduct quicker redressal system. Moreover, LCC can be strengthened in its role by putting retired Judges of High Court and Supreme Court as members. Retired Judges have vast experience and this could add effective redressal system.
CONCLUSION
It is high time for the government to recognise the necessity of amending the POSH Act by replacing the ICC with LCC as an alternative independent redressal system for sexual harassment cases. This can be done by improving the powers of the Local Complaint Committee under Section 6 of the POSH Act. Several amendments can incorporated into LCC like more financing, appointment of members by respective State Commission for Women, an oversight independent mechanism exercised by National Commission for Women and even appointment of retired Judges of High Court and Supreme Court into the members of LCC.
The ICC is double-edged sword as it is devoid of fairness and impartiality which is a great detriment to the women victim. It is portrayed as a speedy justice mechanism but what is the point if the members conducting ICC is bias. It is reported such bias in many organisations where top echelons within influence the decision of the ICC. The fear of retribution by the accused is imminent upon the victim and this results many cases to go unreported. The victims do not want to involve deep into the case due to fear of loss of employment, salary and finally, they do not want to face the social stigmatisation.
In short, the effectiveness of the POSH Act is only possible from a strong independent and impartial redressal system and ICC is just a roadblock. The women victims will have faith in justice only when there is a righteous system and for that, ICC ought to be repealed. The alternative remedy is enhance, strengthen and provide a better Local Complaints Committee.
[i] POSH ACT 2013, S. 2(n)
[ii]POSH ACT 2013, S. 2(g)
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