The POSH Act: Effectual Stretch During & Amelioration

This Article on POSH Act: Effectual Stretch During & Amelioration is written by Swekriti; a student of law at Jagran Lakecity University, Bhopal. The POSH act awareness is the need of time. Be aware of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013; in a better way.

“We do not want to use the term ‘sexual harassment’, because what is happening today is ‘sexual terrorism’.”

Anonymous

Introduction

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 or the POSH Act has been a great relief for all the working women out there; breaking patriarchy and typical male-driven work stereotypes beyond doubt. But very evidently seen; it is not as effective and efficient as it was supposed to be to satisfy the purpose of its creation. In every second office space, there are cases of a female employee being sexually harassed.

Sexual harassment is the violation of women’s right to life and liberty, uninvited; and unwelcomed sexual favor; or gestures from one gender toward another. Whether such harassments have been reported and brought in the administrations’ attention or not, such incidents do occur. At first, such incidents occurring only in the ‘physical workplace’ were considered under sexual harassment at the workplace; but the recent Coronavirus pandemic broadened the ambit of the workplace for an employee.

The global outbreak of the Covid-19 disease shut all the transactions of the world;- business, political, education, manufacturing, etc. in one go. But assuming the fact that “Modern problems require modern solution” all possible businesses were converted online. On one hand, it saved such business from collapsing but on the other hand, opened doors for notoriety.
Online misdemeanors like- cyberbullying, data leakage, internet fraud, privacy invasion was fuelled.

Nonetheless, sexual harassment at the workplace on online mediums too emerged on the surface. Failing the POSH Act or any related guidelines, such incidents where the employee works from home; have continued to increase in online spaces since the lockdown inaugural. The current situation is in dearth need of an effort; along with few amendments in the law to curb the swelling cases of harassment. 

Conceptual Understanding

The percentage of working men is 79% whereas women are dropped to 25% in recent years. The drop in the working rates comes along with various reasons, with sexual harassment being one of the major reasons. (1) For dealing with the same, the POSH Act, 2013 has been brought into action. The POSH Act explains a few major components of sexual harassment at the workplace; beginning with the understanding of the terminology ‘workplace’ itself. ‘Workplace’ is explained under Section 2(o) of the act including departments, organizations, undertakings, institutions, hospitals, etc.

The section includes almost all the working areas for women but there are no specific provisions for work from home. In the current scenario; when a large number of organizations have turned into remote workplaces due to the novel coronavirus pandemic; and the employees are restricted to working from their homes; there is a desperate need for distinct provisions for work from home workplaces. Although Section 2(o)(vi) talks about “dwelling place or a house” yet it mainly encompasses the spirit for domestic servants; or the household servants and not exclusively employees working from home.

 The next important terminology is ‘sexual harassment’; defined under Section 2(n) of the Prevention of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The section includes unwelcomed and unacceptable behaviors like- physical contacts or advances, demanding or coercing favors, sexually colored comments, etc. But, here too aligned with the conditions of working in online spaces; there must be an explicit provision for unwelcomed behavior or any other action direct; or implied on the virtual platform that may account for sexual harassment. A separate provision is required because generally it is expected to be conducted by a physical entity as seen in the conditions discussed in the concerned section [Section 2(n)(i)] but in case of working over online spaces, there is the absence of such entity for the aggrieved woman is harassed through a virtual medium.

POSH ACT, 2013 STATUS IN QUO

A year ago, everything was just ordinary and regular- going to school, colleges, offices, etc. Everything was ‘normal’. But with the global outbreak of the coronavirus pandemic in the mid-January’s entirely changed the terminology ‘normal’.(2) Today learning, teaching, working, etc. from home is the new ‘normal’. The pandemic has restricted human lives to their homes thereby turning organizations remote workplaces. Although there is exponential growth in technological advancement which is a holy grail for collapsing organizations; yet there are drawbacks like cybercrime, online sexual harassment, etc clinging. All of sudden, there is so much dependency on online services and media; offering such crimes a loose leash to act as a troublemaker.

According to surveys, in the past two months of lock-down; there has been rampant growth online sexual harassment cases with the following technique and reasons-

• Sending objectionable text messages;
• Continuous friend requests on social platforms and repeated reminders to do the same in work-related phone calls and conferences;
• Chatting and video calling as unusual hours;
• Receiving late-night calls/video calls for the reason of work;
• Sharing images of obscene nature;
• Sexist jokes or comment in work team groups;
• Managers taking gender-based discriminatory decisions on work allocation;
• Intrusive questioning about physical appearance or personal life;
• Demanding unacceptable favors over online media in return of promise to benefit career in organizations; and so on.

Inadequacy of the POSH Act, 2013 & it’s Amelioration

 The Act supersedes the Vishaka guidelines which were created in created 1997 after the Bhanwari Devi case (Bhanwari Devi vs The State Of Rajasthan on 11 October, 1997 (1) WLC 42, 1996 (2) WLN 387). But the law is dynamic. When Acts are put into operation with changing times, we come across its shortcomings. And hence, the Act posses a few loopholes which are unaligned to the desperate needs of the current time; and are required to amend.

In today’s era, when the world is our pockets; organizations are harnessing the power of technology even from the confines of one’s home; there is no restriction on the idea of the workplace and the workplace liquidates; and there is a very thin line difference between professional and personal space; certain things remain in ambiguity. The above is mentioned a few ways in which female employees are sexually harassed online; and it should be made clear out loud that online harassment is just as detrimental as sexually harassed in person. It is not two different things but rather an extension of one another. Thus, certain changes demand to be made in the governing POSH Act, 2013 to enhance its amelioration or improvement-

Conceptual clarity:

The Act is in desperate need to broaden the ambits of the definitions of concerning terms like ‘workplace’ and ‘sexual harassment’. This may keep the law dynamic and aware of social needs and changes.

The time period of Inquiry:

According to the act, the time period of inquiry and investigation should be not more than 90 days; which is too much for an aggrieved person’s health and stability. By the time the inquiry resolves, the aggrieved may have undergone extremes of mental anxiety and pain. Thus, the time period for such inquiry and investigation must be shortened and reasonable.

No provision for regular inspection:

The Act does not encompass provision for regular inspection of the working of the Internal Complaint Committee. This relation leads to the formation of ill-equipped Internal Committees just created for the sake of the law. 

Making the Sexual Harassment norms stringent in organizations:

No laxity to not follow the Vishaka guidelines or creation of Internal Complaint Committee; or Virtual Complaint Committees must be tolerated and must be made mandatory. 

Making the law applicable to all genders:

Although the cases of female harassment are considerably high yet male harassment in the organization should also be a matter of concern. A survey proves that about 5% of male employees are subject to sexual harassment; but have no portfolio to bring such an incident unto its attention. “Equality to all, by all means, and ends”. The Act must have a section for the male as well.

Virtual resolution platforms:

The Act may include provisions for such resolutions as well. Every job role is fulfilled virtually. Thus, the redressal of incidents like sexual harassment must also be done on a special virtual platform. Even after the presence of the POSH Act; about 60% of cases are not reported due to embarrassment and other reasons. Hence, the confidentiality of the parties must be made a priority.

At last but not the least; the POSH Act demands amendments and the same has to be done keeping in mind the current practices of virtual employment; where she/he works online and is harassed online and thus needs to be prevented; protected and redressed online by both organization and government support.

Disclaimer: The opinions and views in the articles and research papers published on this website; are personal and independent opinions of the author. The website is not responsible for them.

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RIGHTS AND BENEFITS OF BEING A WORKING WOMAN