It wasn’t until recently that Indian women were given the freedom to leave the house and work for a living. Their freedom, however, did not necessarily guarantee their safety. Bhanwari Devi, a social worker prevented an infant girl from marrying but was gang-raped in retaliation. This tragic incident happened in 1992, which publically showcased the hostility women encounter routinely. This event ultimately led to the establishment of the Vishaka Guidelines issued by the Supreme Court of India in a 1997 milestone judgment.
Judicial Precedent to Legislative Foundation
The SC ruling gave an enforceable judicial order to fill a legislative void. Finally, the Indian Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013 to criminalise sexual harassment at workplaces. The Act intends to protect women from workplace sexual harassment and ensure that sexual harassment complaints are dealt with effectively. This legislation, commonly known as PoSH Act superseded the Vishaka Guidelines.
The Act’s definition of ‘sexual harassment’ encompasses overt and covert sexual behaviour that may be expressed physically, verbally, or in writing. Therefore, ‘consent’ is a key component of the Act.
Devil in the Effective Implementation
The Act strives to provide every woman with a safe and respectable working environment free from humiliation, thereby securing their fundamental rights to ‘life’ and ‘equality’. However, effective implementation and awareness of the Act’s provisions remain a challenge.
According to the Act, the incident of sexual harassment must have occurred at the ‘workplace’ for a woman to seek protection under the Act. The legislation offers a comprehensive definition of ‘workplace’ such that an alleged victim can seek redressal for events even outside the designated physical workspaces. However, it does not cover harassment by co-worker in non-work related social/leisure settings. Therefore, this personnel-driven approach is a missed opportunity.
Furthermore, the Act is not gender-neutral and solely protects women. The PoSH Act allows equal opportunity for hearing men/transgender men as the Internal Complaints Committee (ICC) is legally bound to follow the principles of natural justice. However, the complainants can only be women. Therefore, the Act’s provisions do not apply to men or other genders. Although employers may choose to extend the protection through their organisation-level PoSH policies, this initiative has no statutory backing. Despite this opportunity to offer an inclusive setup, the initiative depends solely on the organisations’ discretion.
Although the legislation applies to both the organised and unorganised sectors, the poor implementation of the law is an abortive attempt at helping women in the unorganised sector. The informal sector employs over 95% of the country’s female workers and therefore the majority of the country’s women are failed by the security net as intended by the law against sexual harrasment law. Many victims of sexual harassment have been speaking under the MeToo movement, wherein they publically shared their sufferings in the workplace. But women working in the unorganised sector hardly participated, as they’re often subjected to societal stigma, retaliation by the employers, and uncertainty about a drawn-out legal process.
To resolve this, the Act provisions to set up Local Complaints Committees (LCCs) under the District Magistrate’s office. LCC receives and responds to sexual harassment complaints in organisations with fewer than ten employees in unorganised sectors. In organisations where the complaint is against the employer, it receives and responds to complaints even if these have more than ten employees. However, the execution has been unsatisfactory in how the designated machinery has responded. A study reveals that only 29% of the districts have local committees to address sexual harassment in the workplace. The LCCs are more powerful than the ICCs of the organised sector because of their closer institutional proximity to the state machinery. In addition, ICC comprises many internal members, leaving room for biases and prejudices. However, the lack of seriousness of the state machinery to monitor the effective administration of the Act defeats the purpose.
Finally, sexual harassment is a very personal experience. There is no fair definition of a ‘hostile working environment’. The event of harassment in itself is subject to individual choices and interactions and not a limited locality or geography. The mental and psychological trauma caused can’t and shouldn’t be estimated solely on the grounds of the material evidence the ICC prepares/understands of the incident.
1. The first step should be proactive compliance with the Act’s provisions by the relevant agencies. This includes holding awareness programmes, and conducting orientations and training programmes for the LCC and ICC members. Additionally, suitable monitoring and evaluating mechanisms must also be set up for effective implementation.
2. Online portals (along the lines of the shebox portal) should be introduced wherein victims can file their complaints against the ICCs and LCCs if these fail to solve the issue. A simple ‘inform your government’ option could be offered so that the victim can raise a ticket of notification to the Ministry as a legally binding yardstick for the Committees. The management of the portals can be outsourced to private entities under the Public Private Partnership model to ensure timely and efficient implementation.
3. The Ministry should hold bi-annual refresher courses on the relevant operational prescriptions under the Act. These should be mandatorily delivered via the DM’s office to all the local workplaces’ employees. Additionally, self-defense training could also be offered to women workers.
4. Often, women workers who’ve faced harassment do not file complaints as they fear or feel pressured by their families’ responses to social abandonment. The Ministry can set up a ‘Feel like Family’ team of mental health and counseling professionals tasked with offering emotional and mental support to struggling women. Having different channels will ensure that the state machinery provides a well-defined support system to the citizens.
5. Similar to the German domestic law concerning sexual harassment at the workplace, in case the ICC fails to provide due redressal to the victim, the victim should have the right to suspend their activities at work without a loss in compensation.
6. The professionals at the ICCs and LCCs must be registered with the Ministry of Women and Child Development and the counterpart state-level ministries. For urban workplaces, National and State Commissions of Women for urban workplaces and State Rural Livelihood Missions for rural workplaces should be empowered to oversee the compliance and case resolutions for cases reported under the Act. They can help with community mobilization and sensitisation to deal with the issues of non-compliance in ICCs and LCs.
Accordingly, relevant rules (to incorporate and implement the above-mentioned recommendations) in convergence with the Companies Act, 2013 (as administered by the Ministry of Corporate Affairs) and the Criminal Law Act 2018 (as administered by the Ministry of Home Affairs) must be framed for more robust, timely and resources-backed oversight of the said mandates.
It is encouraging for working women to have legislative backing under the PoSH Act. But it is equally essential to acknowledge that there are various challenges, and opportunities for its effective enforcement. Hence, relevant steps must be taken to ensure the participation of all the stakeholders, matched with efforts taken to improve policy coherence in legislation and implementation.
This may increase costs of reporting. However, taking action and delivering justice to these women will ensure more positive benefits regarding safer and more secure working conditions for Indian women than without them.
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The opinions expressed in this essay are those of the authors. They do not purport to reflect the opinions or views of CCS.