Protection of Women from Sexual Harassment (POSH) Act, 2013

• 07 Jan 2022

For Prelims: Article 19, right to information, Open Court

For Mains: Protection of Women Against Sexual Harassment Act, 2013 and its criticism.

Why in News

Recently, a petition has been filed in the Supreme Court challenging guidelines issued by the Bombay High Court in cases under the Protection of Women from Sexual Harassment (POSH) Act, 2013.

• The provision that challenged pertains to blanket bar on parties and advocates from sharing records, including orders and judgments, with the media.
• The guidelines were formed by Justice G.S. Patel of the Bombay High Court ostensibly to protect the identities of the parties in a case under the POSH Act.

Key Points

• Arguments of the Petitioner:
  • Against Spirit of Article 19: The petitioner argued that a blanket bar is against the freedom of speech and expression enshrined under Article 19.
    • The petition said a well-informed citizenry governs itself better.
    • Right to free speech can be curbed only if it interferes with the administration of justice.
    • Any injunction on the right of the people to know true and accurate facts is an encroachment on their right to information.
  • Suppression of Women’s Voices: It can serve as a tool for powerful men to continue sexually harassing women and thereafter suppressing their voices on social media and in the news media.
    • In matters of social justice and women empowerment, public discourse plays a crucial role in shaping the nature of legal entitlements that are delivered to women.
    • The order may have a “ripple effect” and deter survivors from approaching courts as well as setting a dangerous precedent for trial cases.
  • Against Principle of Open Court: The legitimise undue protection to sexual offenders in gross violation of principles of open court and fundamental rights of survivors.
    • An open court serves an educational purpose.
    • The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights.

Protection of Women Against Sexual Harassment Act, 2013

• Background: The Supreme Court in a landmark judgement in the Vishakha and others v State of Rajasthan 1997 case gave ‘Vishakha guidelines’.
  • These guidelines formed the basis for the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Sexual Harassment Act").
• Mechanism: The Act defines sexual harassment at the workplace and creates a mechanism for redressal of complaints.
  • Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.
  • The Complaints Committees have the powers of civil courts for gathering evidence.
  • The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.
• Penal Provisions: Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine.
  • Repeated violations may lead to higher penalties and cancellation of license or registration to conduct business.
• Responsibility of Administration: The State Government will notify the District Officer in every district, who will constitute a Local Complaints Committee (LCC) so as to enable women in the unorganised sector or small establishments to work in an environment free of sexual harassment.

Note: SHe-Box

• The Ministry of Women & Child Development has launched Sexual Harassment electronic Box (SHe-Box).
• It is an effort to provide a single window access to every woman, irrespective of her work status, whether working in organised or unorganised, private or public sector, to facilitate the registration of complaint related to sexual harassment.
• Any woman facing sexual harassment at the workplace can register their complaint through this portal.
• Once a complaint is submitted to the ‘SHe-Box’, it will be directly sent to the concerned authority having jurisdiction to take action into the matter.

Way Forward

• There is a need to implement JS Verma Committee recommendations on Sexual Harassment at the Workplace Act:
  • Employment Tribunal: Setting up of an employment tribunal instead of an internal complaints committee (ICC) in the Sexual Harassment at the Workplace Act.
  • Power to Form Own Procedure: To ensure speedy disposal of complaints, the committee proposed that the tribunal should not function as a civil court but may choose its own procedure to deal with each complaint.
  • Expanding Scope of Act: Domestic workers should be included within the purview of the Act.
    • The Committee said any “unwelcome behavior” should be seen from the subjective perception of the complainant, thus broadening the scope of the definition of sexual harassment.
  • Responsibility of Employer: The Verma panel said an employer should be held liable if:
    • he or she facilitated sexual harassment.
    • permitted an environment where sexual misconduct becomes widespread and systematic.
    • Where the employer fails to disclose the company’s policy on sexual harassment and ways in which workers can file a complaint.
    • When the employer fails to forward a complaint to the tribunal
    • The company would also be liable to pay compensation to the complainant.
    • The panel opposed penalizing women for false complaints as it can potentially nullify the objective of the law.
    • The Verma panel also said that the time-limit of three months to file a complaint should be done away with and a complainant should not be transferred without her consent.

Source: TH