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POSH Act 2013 : Are There Legislative Gaps Which Need To Be Bridged?

Dr Anagha Sarpotdar
2 July 2020 7:53 AM GMT
POSH Act 2013 : Are There Legislative Gaps Which Need To Be Bridged?
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This write up is written in response to the article published here namely Sexual Harassment At The Workplace – Bridging The Legislative Gap For A Better Tomorrow by Riddhika Girimala Shetty and Pranshu Bhutra on 16 Jun 2020,

1) Currently, the Act is only restricted to complaints of sexual harassment of an aggrieved woman. There is no dedicated legislative mechanism available for sexual harassment faced by men and most importantly transgenders, who continue to be unfortunate objects of ridicule even in modern workplaces. In today's day and age, with equality of all gender a rising slogan, it goes without saying that the time has come to make suitable amendments to the Act, to make it gender-neutral. And the term 'aggrieved woman' in the Act be replaced with 'aggrieved person'.

The Transgender Persons (Protection of Rights) Act, 2019 was enforced on 10th January 2020. Section 9 of the Act states that no establishment shall discriminate against any transgender person in any matter relating to employment including but not limited to recruitment, promotion and other related issues. Further Section 10 states that every establishment shall ensure compliance with the provisions of this Act and provide such facilities to transgender persons as may be prescribed. Additionally, complaints relating to violation of the provisions of the Act are to be dealt by a complaint officer designated by every establishment. The Act being a Criminal legislation prescribes imprisonment and fine as per Section 18 if a person harms or injures or endangers life, safety, health or well being whether mental or physical of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. In the presence of separate Act for transgenders, amendment to Section 2 (a) i.e. definition of aggrieved woman stated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter referred to as 2013 Act) is not required.

Also, most organisations in the private sector have gender neutral anti sexual harassment policies which allow all persons coming in contact with the workplace to complain of sexual harassment. Those organisations who might not be having a gender neutral anti sexual harassment policy do have a code of conduct which enlists sexual harassment as a misconduct which allows complaints irrespective of gender and biological identity of the person.

2) The Act states that the Presiding Officer under the Internal Committee ('IC') should be a senior woman employee of the organization. However, there are instances where an organization does not have a senior-level women employee or the Presiding Officer is not available for a particular hearing, due to other commitments. Therefore, the GoM should consider a provision of having two Presiding Officers in the IC, to ensure ease and timely completion of inquiry. Of course, safeguards should be added to ensure that a complaint is heard only by a particular Presiding Officer during the entire period of inquiry.

Section 4 (2) (a) of the 2013 Act specifies that if a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace. Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding officer shall be nominated from any other workplace of the same employer or other department or organisation.

If the Presiding Officer is not available for a hearing due to certain unavoidable reasons appointing authority of the IC i.e. employer can appoint a woman member temporarily as Acting Presiding Officer in her absence. Hence amendment to Section 4 (2) (a) of the 2013 Act is not needed.

The Act and its Rules are silent on the fees that are payable to the external member for services rendered on the Internal Committee. We suggest that a model fee is prescribed for external members. The Arbitration and Conciliation Act, 1996, infact, provides a fee schedule for arbitrations in the Fourth Schedule.

External Members appointed with the Internal Committee as per Section 4 (2) (c) come with varied educational background, work experience and different skill sets. Hence prescribing a model fee for external members will not be in the interest of the organisations considering the fact that each organisation will be look forward to appointing an external member who can perform their role at the best and therefore receives compensation for their services commensurate.

3) The Act should also specify categories, wherein any member of the IC whose relationship with the complainant or the Respondent, falls under the specified categories, would be ineligible to be a member of the IC for that particular complaint of sexual harassment. Again, the Seventh Schedule of the Arbitration and Conciliation Act, 1996 provides the list of such ineligible relationships. And a suitable list of categories can also be drawn for IC.

There is no need to specify categories as inquiry in complaints of sexual harassment under Section 7 (4) of the Rules of the Act is mandated to be done as per principles of natural justice foremost of them being Nemo judex in causa sua which means that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none. It is therefore the responsibility of the employer to direct members of the IC to recuse from a particular inquiry if they are not eligible due to apprehended bias.

4) The Act prescribes a not more than 3 year period for members of IC and Presiding Officer. However, the Act is silent on reappointment of the members after a three-year term. And it is requested that the Act specifically state that members of IC and Presiding Officer can be reappointed by the employer, upon the end of their term.

Silence regarding re appointment of Presiding Officer and members of the Internal Committee (IC) is strength of the 2013 Act. It leaves room open for the employer to re constitute the IC after three years or otherwise depending on the performance of the IC.

5) The Act has democratized justice delivery by according the powers of a civil court to the IC constituted by employers. However, there is a lack of guidance to IC on how to effectively exercise these powers in carrying out their solemn task. We suggest that the Government prescribe Standard Operating Procedures to assist the IC in enforcing its powers as a Civil Court. In fact, having a Standard Operating Procedure becomes even more crucial, considering that none of the members of IC are mandatorily required to have a background in law.

Ministry of Women and Child Development (MDWCD) published a guidebook in the year 2015 for aiding the employers and Committees in implementing the 2013 Act. Additionally, the Institute of Secretariat Training and Management of the Department of Personnel and Training, GOI published a training module for the purpose of awareness generation and capacity building. Hence there is no need for the GOI to prescribe SOPS for the ICs.

6) Section 14 of the Act states that where the IC arrives at a conclusion that the complaint against the respondent is malicious or has been filed knowing it to be false, or used forged document in the course of inquiry, then the Internal Committee 'may recommend' to the employer to take action. It is suggested that taking action against malicious or false complaints or submitted forged documents, should be mandatory. And the phrase 'may recommend' should be replaced with 'shall recommend'.

There is a lack of credible statistics released by the Government of India pertaining to misuse of the 2013 Act by women. Rather, such a provision is a trap for the IC members, if they not aware of the stealthy, private and subtle nature of sexual harassment. Use of the section by the IC without deeper thought can discourage women from reporting complaints. Though this section was pushed by some under the pretext of preventing misuse of the law, it needs to be understood that sexual harassment at workplace is one of the most under-reported forms of violence against women. Several studies conducted across India point out that complaints of sexual harassment by women are few and mostly considered a last option. This is usually due to shame, lack of family support, apprehension of being labelled as liar, fear of retaliation from the employer / harasser, adverse effects on employment, character assassination at workplace, lack of confidence in the complaints mechanism, and escalation in sexual harassment. Assuming the inevitable existence of hierarchy and power inequalities at a workplace, it takes humongous courage on the part of women to register a complaint. In such a situation, it is imperative for the IC to understand that the woman may not always be able to provide direct evidence in support of their complaint and that unlike a criminal trial an internal inquiry does not require strict proof. Last, but not the least, as stated in the Verma Committee Report, a Red Rag provision such as this reflects little thought and should hardly be the focus of the ICC and the employer; the focus of law is to provide relief to the aggrieved party and not misuse of the same. Hence there is no need to amendment Section 14 of the 2013 Act.

7) Currently, the Act provides for appeal to a court or a tribunal. However, considering that sexual harassment is a human rights violation, we suggest that appeal should be permitted to the State Human Rights Commission and, then the National Human Rights Commission. This will also have the added benefit of decongesting courts and tribunals. Therefore, suitable amendments should be made to the Act and the Protection of Human Rights Act, 1993.

Human Rights Commissions can receive complaints or investigate on its own about the "violation of human rights or abetment thereof or negligence in the prevention of human rights violations by public servants". This is particularly relevant in those situations which involve individuals or groups belonging to the marginalised sections of society who do not have the financial or social resources to lodge individual complaints. NHRC has been focusing on human rights issues such as custodial deaths, fake encounters, police atrocities including torture, crude methods of laparo­scopy, disappearances in the Kashmir Valley and violence against women, etc. Commissions are only recommendatory bodies to the Government with no power of enforcement. In June 2016, the current chair of the NHRC and former chief justice of India, HL Dattu, described this institution over which he presided as "a toothless tiger. Number of cases pending with the Commission has been increasing sharply every year. Section 11 of the Act makes it dependent on the government for its manpower requirements. Then there is that all-important question of finance. According to Section 32 of the Act, the central government shall pay to the Commission by way of grants such sums of money as it may consider fit. Thus, in respect of the two most important requirements i.e. human resources and money, the Commission is not independent. Delay in publication of annual reports by two or three years has been a constant problem. Considering above mentioned issues it is clear that the HRCs are as congested as others courts and tribunals.

8) The Act provides for cancellation or withdrawal of registration of license required to run a business, and criminal imprisonment, for penalty for non-compliance with the Act. With India's focus on ease of doing business, it is imperative that such draconian provisions are repealed. Further, the Government should drop the mindset of criminalizing certain offences. It is suggested that the penalty under the Act carries monetary penalty fines, and not criminal sanctions. Monetary fines can be expressed in the form of a penalty unit, instead of rupees. And the value of a penalty unit can be determined by the government from time to time.

Section 26 of the Act calls only for monetary penalty of Rs. 50,000 and cancellation of license or withdrawal, non renewal, or approval or cancellation of registration for conducting business if the employer was previously found in non compliance to the 2013 Act and found doing it again. There is no provision for criminal sanction in the 2013 Act unlike Section 354 (A) of the Criminal Law (Amendment) Act, 2013.

Since the 2013 Act has completed 6 years of its existence it is required that each State submits a status report to the GOI which can be then published as a compilation delineating compliance status and best practices done by the States, if any. Need of the day is to strengthen implementation of the 2013 Act by the GOI by monitoring its implementation done by the State Governments. Additionally, a status report will provide various stakeholders insight into implementation of various provisions of the 2013 Act which can pave for regional consultations by the GOI for strengthening implementation.

(Author is PhD in Social Sciences (TISS) and working on social and legal aspects of sexual harassment of women at workplace since 2005. Currently she is the Chairperson of the Mumbai District Local Committee constituted under Section 6 of the Sexual Harassment of Women at Workplace (PPR) Act, 2013. She may be reached at  [email protected])

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