POSH in India: Legal Primer

Sexual harassment is any unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment. Generally, sexual harassment is sexually oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. In its milder and subtle forms sexual harassment may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates. However, it may also assume blatant and ugly forms like leering, physical grabbing, sexual favours and sexual assault or sexual molestation. To fit in the concept of sexual harassment the relevant conduct must be unwelcome to the recipient of that conduct. Conduct is not sexual harassment if it is welcome. So in order to determine if the conduct was welcome or unwelcome, courts would naturally look to the complainant’s reaction at the time of the  occurrence of the incident and assess whether the complainant expressly, or by his or her behaviour demonstrated that the conduct was unwelcome. If the evidence shows that the complainant welcomed the conduct the complaint of sexual harassment would fail. 

Until 1997, there was a vacuum of legal regime that dealt with sexual harassment. There was no legislation that defined ‘sexual harassment’ and as such, women experiencing sexual harassment at  workplace had to lodge a complaint under Section 354 and Section 509 of the Indian Penal Code. Section 354 deals with assault or criminal force to woman with intent to outrage her modesty, and Section 509 punishes an individual or individuals for using a word, gesture or act intended to insult the modesty of a woman. However, noticing the absence of a legal regime that dealt with sexual harassment at work place, the Supreme Court of India, laid down elaborate guidelines on dealing with sexual harassment at work place by its judgment in Vishaka &others vs State of Rajasthan  is popularly known as the Vishaka guidelines.

A primer to guide and provide direction to the entire understanding of POSH is more relevant today for all those in the work place than ever before considering the stakes involved. A basic understanding of the legal background and current scenario together with microscopic details are essential in combating sexual harassment at workplace in India. A brief history along with a summary of the international efforts undertaken to tackle this menace provides the platform for this summary. This article also aims to trace the change in the position of law from the pre-1997 phase to the post-1997 phase.

INTERNATIONAL POSITION

The United Nations

Within the United Nations, the issue of sexual harassment in the workplace has been addressed as both a manifestation of sexual discrimination and a form of violence against women. The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted at the time when awareness of sexual harassment was only beginning to emerge and did not therefore contain a specific prohibition. However, the CEDAW, set up under the Convention, has since explicitly addressed the problem. Its General Recommendation of 1989 recognized sexual harassment as a form of violence against women. Three years later, in General Recommendation No. 19 of 1992, the Committee characterized gender-based violence as a type of sexual discrimination and therefore a breach of the CEDAW. The recommendation notes that “Equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace”. 

International Labour Organization (ILO)

A new Convention and accompanying recommendation to combat violence and harassment in the world of work was adopted by the International Labour Conference (ILC) of the ILO held on 20th June 2019. The Conference recognized that violence and harassment in the world of work “can constitute a human rights violation or abuse…is a threat to equal opportunities, is unacceptable and incompatible with decent work”. The new international labour standard aims to protect workers and employees, irrespective of their contractual status, and includes persons in training, interns and apprentices, workers whose employment have been terminated, volunteers, job seekers and job applicants.

THE SUPREME COURT OF INDIA 

The Supreme Court in Vishaka vs State of Rajasthan (AIR 1997 SC 3011) for the first time recognized, acknowledged and explicitly defined sexual harassment as an  unwelcome sexual gesture or behaviour aimed at or tending to outrage the modesty of woman directly or indirectly. Defining sexual harassment as an act aimed towards gender-based discrimination that affects women’s right to life and livelihood, the Supreme Court developed broad based guidelines for employers. These mandatory guidelines known as Vishaka guidelines are aimed towards resolution and prevention of sexual harassment. These guidelines bring within its purview all employers in organized and unorganized sectors by holding them responsible for providing a safe work environment for women. The Vishaka guidelines apply to all women whether students, working part time or full time, on contract or in a voluntary or honorary capacity. Expressly prohibiting sexual harassment at workplace these legally binding guidelines put a lot of emphasis on appropriate preventive and curative measures. The guidelines include the following as acts of sexual harassment: Physical contact and advances, showing pornography, a demand or request for sexual favours, any other unwelcome physical, verbal/non-verbal – such as whistling, obscene jokes, comments about physical appearances, threats, innuendos, gender-based derogatory remarks, etc.

Some of the most important guidelines are:

(1) The onus to provide a harassment free work environment has been laid down on the employers who are required to take the following steps:

    i.      Employers must form a Complaints Committee.

   ii.       Express prohibition of sexual harassment in any form and make the employees aware of the implications through in house communication system / posters / meetings.

  iii.      Must include prohibition of sexual harassment with appropriate penalties against the offender in Conduct rules.

  iv.      Prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 to be included by private employers.

   v.      Provision of appropriate work conditions in respect of- work, leisure, health, hygiene to further ensure that there is no hostile environment towards women.

  vi.      No woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

 vii.      Victims of sexual harassment to be given an option to seek transfer of the perpetrator or their own transfer.

LEGISLATION BASED ON THE GUIDELINES

On 23rd April 2013, the Parliament finally brought into force a comprehensive legislation dealing with the protection of women against sexual harassment at the workplace by enacting The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The Act has in fact sought to widen the scope of the guidelines issued by the Supreme Court by bringing within its ambit, amongst other things, a “domestic worker” [Section 2(e)] defined to mean a woman who is employed to do the household work, in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”) Act, object of protecting women, entrusts the employer-establishment and its management with the duty to redress any grievance made thereunder. Contrary to common perception, the law is not all about harassment of a woman employee by a Lothario-type male employee, senior or junior. On the contrary, it makes the establishment responsible for redressal of sexual harassment-related grievances of any woman where the alleged incident has taken place. All sorts of permutations and combinations can be visualised viz., the harassed female and male aggressor are both employees of the same organisation, the harassed individual is an employee but not the aggressor, the harassed female is a visitor with whom a male employee of the establishment takes sexual liberties and makes passes at or indulges in sexually overt or covert gestures, or both the harassed and the harasser are rank outsiders, with whom the establishment is not related as an employer.

RECENT JUDGMENTS OF THE SUPREME COURT OF INDIA RELATING TO THE POSH ACT

In the recent past the Supreme Court and various High Courts have delivered several notable judgments on the POSH Act, some of which are enumerated below:

(1) What constitutes Sexual Harassment?

The Delhi High Court held that there must be physical contact having an undertone of sexual nature to constitute 'sexual harassment' under the POSH Act. It opined that an altercation in the context of unwelcoming environment prevailing at the workplace is not a case of sexual harassment. [Shanta Kumar v. Council of Scientific and Industrial Research (CDIR) & Ors, (2018) 156 FLR 719 (Delhi)]

The Kerala High Court held that the act or behaviour must be connected with sexual harassment including allegations of promise, threat or an offensive or hostile work environment towards female employees. A solitary allegation of intemperate language against a female employee in a report does not constitute an offence under the POSH Act [K.P. Anil Rajagopal v. State of Kerala, (2018) 1 KLJ 106 (Kerala)]

(2) What is a workplace?

The Delhi High Court upheld the decision of the employer to terminate the employment of the accused in line with the recommendations of the Internal Committee ("IC"), where the accused was alleged to have sexually harassed a female colleague during an outstation visit for work (Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust and Ors. (2015) 1 SCC 1026)

The Bombay High Court held that the definition of 'workplace' is inclusive and deliberately kept wide by the Parliament to ensure that any area where women may be subjected to sexual harassment is not left unattended or unprovoked for (Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, AIR 2014 Bom 814)

(3) Filing of a complaint with the IC:

The Rajasthan High Court held that an aggrieved woman can file a complaint with the IC without having to submit the complaint in person. The complaint could be sent to the IC through another person or by any other media, the main  idea being that it should be received by the IC (Shital Prasad Sharma v. State of Rajasthan and Ors., AIR 2018 Raj 1676).

The Delhi High Court held that merely because the petitioner has an alternate remedy to file the given case before another forum, it would not act as a constitutional bar for the Court to adjudicate upon the matter. It also held that the findings of IC should not be ignored on vague and general grounds (Sarita Verma v. New Delhi Municipal Corporation & Ors. [(2016) 2 LLR 785]).

(4) How can IC be constituted?

The Delhi High Court has opined that the appointment of external member of the IC should be in strict compliance with the POSH Act and the rules thereunder. Accordingly, enquiry proceedings conducted by an IC that is not properly constituted as per the law, may be treated as invalid (Ruchika Singh Chhabra v. Air France India and Anr. AIR 2018 Del 1340). In another matter before the Rajasthan High Court, it was held that the external member need not necessarily have legal background or knowledge in the aspects of sexual harassment against women. Having experience in social work is sufficient for being a valid member of the IC (Shital Prasad Sharma v. State of Rajasthan and Ors., AIR 2018 Raj 1676). 

The Bombay High Court held that an IC which does not have at least two members (who are either dedicated to the cause of women or have experience in social work or have legal knowledge), would be illegal and contrary to the provisions of the POSH Act. In the same judgement, the court also re-emphasized that it is the employer's responsibility to constitute a proper IC (Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, AIR 2014 Bom 814)

(5) Powers of the IC:

The powers of the IC have been elucidated by various courts across the country. The Delhi High Court held that the IC could extend the time limit for filing a complaint by another three months, i.e. up to six months from the date the incident has taken place, by recording reasons in writing, if it is satisfied that circumstances prevented the complainant filing of complaint earlier (Tejinder Kaur v. UOI, AIR 2017 SC 1221). 

Further, in Confidential v. Indian Institute of Corporate Affairs, AIR 2018 Del 680, the Delhi High Court stated that the petitioner has the right to approach the IC for immediate protection that may be required and that the IC is empowered to grant interim relief, if it deems fit. 

The Delhi High Court has additionally stated that the IC is empowered to enforce the attendance of any person as per the provisions of the POSH Act (Ashok Kumar Singh v. University of Delhi and Ors., 2017 LLR 1014). 

In addition to the judgments passed by the Delhi High Court, the Bombay High Court held that where the inquiry has been conducted by the IC after giving adequate opportunity to all the parties and it has reached a conclusion, then merely because two views are possible, the court is not expected to re-appreciate the evidence and come to a different conclusion than the one which has been arrived at by the IC (Vidya Akhave v. Union of India, Department of Women & Children & Ors., 2017 LLR 357)

(6) Conducting inquiry proceedings

Inquiry proceedings of the IC should be fair and impartial. If there is any allegation of bias against any member of the IC, the inquiry proceedings should be stayed or put on hold until the disciplinary authority takes a decision. If the disciplinary authority believes that the allegation of bias is true, then it would invalidate the proceedings, a new committee would be formed and proceedings would need to start afresh (Tejinder Kaur v. UOI, AIR 2017 Del 1221). 

The Madras High Court set territorial jurisdiction for conducting the inquiry proceedings - it ruled that the inquiry proceedings should be conducted within five hundred kilometers of the place of the incident. The Court held that requiring the victim to travel more than five hundred kilometers to attend the inquiry proceedings would itself constitute harassment (K.Hema Latha v. State of Tamil Nadu, 2018, Madras High Court, MANU/TN/1414/2018). It was held that the inquiry as per the POSH Act is not a preliminary inquiry but instead a full-fledged enquiry, which needs to be done in the same manner as is done to prove misconduct in disciplinary proceedings. 

In Sibu v. Air India Limited, (2016) 2 KLJ 434, the High Court mandated the IC to follow principles of natural justice and give fair opportunity to the respondent to defend himself.

The Delhi High Court pointed out that strict rules of evidence are not required to be followed in inquiry proceedings and that the IC can adopt its own procedure in conformity with the principles of natural justice and especially in a case of sexual harassment (Gaurav Jain’s case as cited earlier). 

In another matter before Rajasthan High Court, it was observed that the POSH Act and the rules enable a three-member team to conduct the inquiry so long as the Presiding Officer is present. Therefore, the inquiry report does not stand vitiated unless it is shown that there were less than three members who conducted the inquiry (Shital Prasad’s Case as cited earlier).

(7) Employers' rights and territorial jurisdiction of the courts

There have been several rulings on the employer’s rights and territorial jurisdiction of the courts. 

The Patna High Court held that the disciplinary authority can dismiss an employee from the services once the sexual harassment charges are proven (Mohan Kumar Singh v. Chief Manager (HRD) Central Bank of India, AIR 2017 Pat 2483).

The Gauwhati High Court held that the court which shall have the territorial jurisdiction to hear the matter of sexual harassment shall be the place where the act has occurred. Accordingly, if the harassment occurred in Kolkata while the parties were travelling for office work, the court in Kolkata shall have the jurisdiction even if the workplace of the offender is in Guwahati (Biplab Kumar Das v. IDBI Bank Ltd and Ors., 2017 LLR 1148)

Since the POSH Act is still at a nascent stage, these cases help us clarify the position of law and better analyse the matters relating to sexual harassment at a workplace. While several of these cases are specific to their unique backgrounds, they serve as an aid to the IC that is required to investigate complaints. It is pertinent to note that the courts are both recognizing and upholding the powers to the IC as provided by law. Accordingly, employers and their ICs need to ensure that the proceedings are conducted in a fair manner and in compliance with the law and the principles of natural justice. Sexual harassment allegations at the workplace not only run the risk of loss of employer's reputation but also lead to legal troubles. Needless to mention, sexual harassment at the workplace continues to remain one of the most sensitive issues that needs to be dealt with immense care and sensitivity. As opined by the Bombay High Court, employers need to be genuinely concerned with the safety of women at the workplace rather than staging a farce of being compliant under the POSH Act.

PRESENT SCENARIO

It has been almost six years since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 received its assent from the President of India. In recent times, the issue of sexual harassment of women at the workplace has assumed prominence with serious allegations being made against a former Supreme Court Judge, who during his tenure as a judge of the Supreme Court had pronounced verdicts on huge scams, and the editor of a magazine with truth and exposure as its masthead. In the said case, a court-appointed committee found that the complainant’s statement prima facie disclosed an act of unwelcome behaviour of sexual nature, but matters went no further as the judge was found to have demitted office prior to the commission of the alleged offence. 

The most challenging adversary to changing women’s experiences of sexual harassment at the workplace is not the actual offender, it’s the non-compliant institution. In its failure to educate its own, to inform and stake itself on building a culture intolerant of sexual harassment, such an institution plays the same role as the passive bystander, who fosters hostile sexual environments by simply doing nothing. 

Though we have now a legal framework to address the issues of sexual harassment at workplace, the real challenge would be to ensure that women feel secure and comfortable at workplace and the tenets of the POSH Act is enforced in its spirit. As Martin Luther King Jr. said, “our lives begin to end the day we become silent about things that matter”. Therefore, it is the need of the day that we can cannot remain silent while women are subjected to sexual harassment and proactively take measures to prevent such incidents of sexual harasssment.

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