Procedure of an Integral Inquiry under the POSH Act

This article is written by Hemant Kumar, a student of LC1, Delhi University

Abstract: The women’s empowerment is very important for a developing country and India has done a lot from the time of Raja Ram Mohan Roy. One of the developments is the POSH Act which is enacted in the year 2013 that is a right step taken to achieve safe and secure environment at the workplaces one can learn about the VISHAKHA Guidelines by reading this article.

INTRODUCTION

Policy for Prevention of Sexual Harassment (Posh Act), 2013 was developed to check the harassment cases against the women in the workplace. The places which are full of educated persons and that are built for professional purpose only was being the centre for harassment for the women. This lead to stress among them and complaints were being made which were not addressed properly. Posh Act, 2013 was enacted in comprehensive legislation to provide a safe, secure and enabling environment free from harassment for the women.

Vishakha and others vs State of Rajasthan

Facts: Bhanwari Devi was employed as a social worker under the Women’s development Project under the Rajasthan Government to wipe out child marriages. When she intercepted the marriage of one Gujjar family the marriage does take place but after that Bhanwari Devi was gang-raped by five men. The police did not write her FIR and the medical investigation took place after 52 hours. The Trial court acquitted them on a lack of evidence. It provoked VISHAKHA (Group for women’s development and research) an NGO and filed a petition in the Supreme Court.

The case was fought on violation of Human Rights i.e. Article 14, 15, 19 and 21. Issues raised were:

Whether an employer has any responsibility for sexual harassment by its employees?
Whether an employer has any responsibility for sexual harassment to its employees?

Analysis of the Judgment:

The court observed that the fundamental rights under Article 14[2], 19[3](1)(g) and 21[4]of Constitution of India that, every profession, trade or occupation should provide a safe working environment to the employees. It hampered the right to life and the right to live a dignified life. The basic requirement was that there should be the availability of a safe working environment at the workplace. It also gave guidelines to be followed at the workplace and to implement of proper techniques to check sexual harassment. The main aim was to ensure gender equality and to provide a safe workplace to women.

After this case, the Supreme Court made the term Sexual harassment well defined, accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt or misbehavior, or any sexual desire towards women, sexual favor will come under the ambit of sexual harassment.

Vishakha Guidelines

The court laid down certain guidelines with the definition of human rights in section 2d of the POSH Act, which are as follows:

Duty of the employer or other persons in workplaces and other institutions.
The employer in workplaces and other institutions are responsible to prevent or deter the commission of acts of sexual harassment.
Complaint mechanism: An appropriate mechanism of prevention should be created for the redressel of the complaint.
Disciplinary action: The employer should take action by complaining about the same to the authority responsible when sexual harassment takes place.
No prejudice of any rights available under the protection of the Human rights act, 1993.
Workers Initiative: Employees should be allowed to raise issues of sexual harassment at worker’s meetings.
Awareness: Awareness of the rights of female employees in this regard should be created by notifying the guidelines.

These guidelines and judgment lead to the safety of women who can feel safe and work with no fear and they can ensure that any wrong will be heard before the appropriate committee no one is powerful enough to take their respect and dignity and will roam freely.

Most of the cases are on sexual harassment are dealt with Human Resources (HR). To effectively handle such cases there should be an expert in POSH. Whenever such a case comes in front of the HR first thing to do is the formation of an internal committee that will move further with the case. The law mandates that every organization with more than 10 people must have an internal committee to look for the cases of sexual harassment.

Investigation

Type of Complaint: The complaint should be given the utmost attention and it should be analyzed what the victim wants to convey through the complaint and what has happened to it.

Knowledge of what victim requires: In most cases the victim wants to stop the incidents but the authority i.e. internal committee can do what is best but the victim should be heard.

New Incidences comes after first complaints these should be dealt with properly as it can affect the image of the person and the image of the company or workplace.

Essential Tips for the Internal Committee

While handling a sexual harassment complaints, an inquiry should be conducted on the principles of natural justice and not as a formality. The Internal Complaints Committee is vested with the powers of a Civil Court and comes with great responsibilities. A wrong decision can destroy the career, reputation and family life of a man/woman if wrongly disciplined.

Criteria for the constitution of the ICC:

(a) Presiding Officer

The chairperson of an ICC referred to by the nomenclature Presiding Officer, shall be a senior level female employee. The idea for a woman presiding officer so that women are more approachable to women, they would feel more comfortable with a reporting and redressal mechanism headed by a woman.

(b) External Member

The ICC should include an external member being a person familiar with issues relating to sexual harassment, or from a non-governmental organization or association committed to the cause of women.

The ICC should also include two or more members from its employees, preferably individuals having legal knowledge, experience in social work, or committed to the cause of women. Such requirements, while desirable attributes to be borne in mind by employers selecting employee members, were deliberately not made mandatory to ease the burden of compliance in forming a committee, given that it may be practically unviable for many organizations to find employees with suitable qualifications.

Conclusion

POSH Act helps women workers to file complaints in their respective offices and the procedure is rather simpler to avoid the police and courts. ICC is provided with a lot of powers and they can do justice but every step is to be taken with utmost care to counter fake cases. Women can now do their jobs respectfully without any fear of sexual harassment at the workplace.

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