Knowledge Nugget: Why POSH Act is crucial for your UPSC prep

Why in the news?

Last week, the Supreme Court refused to entertain a petition seeking application of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, known as the P0SH Act, to political parties, saying it falls in the domain of the policymakers.

“The prayer made in the petition is exclusively within the competence of the legislature or within the domain of policy of the executive. As such, we are not inclined to entertain,” Chief Justice of India (CJI) B R Gavai, presiding over a two-judge bench, told senior advocate Rekha Gupta, who pressed for the court’s intervention.

Key Takeaways:

1. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, commonly known as the PoSH Act, was passed in 2013. It defined sexual harassment, lay down the procedures for complaint and inquiry, and the action to be taken in cases of sexual harassment.

2. The PoSH Act mandated that every employer must constitute an Internal Complaints Committee (ICC) at each office or branch that had 10 or more employees. It defined various aspects of sexual harassment and laid down procedures for action in case of a complaint.

3. The aggrieved victim under the Act can be a woman “of any age whether employed [at the workplace] or not”, who “alleges to have been subjected to any act of sexual harassment”. In effect, the Act protects the rights of all women who are working or visiting any workplace, in any capacity.

4. Under the 2013 law, sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:

➣ Physical contact and advances

➣ A demand or request for sexual favours

➣ Sexually coloured remarks

➣ Showing pornography

➣ Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

5. It is not compulsory for the aggrieved victim to file a complaint for the ICC to take action. If the woman cannot complain because of “physical or mental incapacity or death or otherwise”, her legal heir may do so.

6. Under the Act, the complaint must be made “within three months from the date of the incident”. However, the ICC can “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”.

7. The ICC “may”, before inquiry, and “at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation” — provided that “no monetary settlement shall be made as a basis of conciliation”.

8. The ICC may either forward the victim’s complaint to the police, or it can start an inquiry that has to be completed within 90 days. When the inquiry is completed, the ICC must provide a report of its findings to the employer within 10 days. The report must also be made available to both parties.

9. The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, should not be made public.

10. If the allegations of sexual harassment are proved, the ICC will recommend to the employer to take action “in accordance with the provisions of the service rules” of the company. These may vary from company to company.

Do political parties come under the ambit of the POSH Act?

1. The P0SH Act requires both public and private workplaces to set up an ICC to hear complaints of sexual harassment. The plea contended that when it comes to political parties, “the presence of Internal Complaints Committees (ICCs) to address sexual harassment is inconsistent”.

2. Section 3(1) of the P0SH Act states that “No woman shall be subjected to sexual harassment at any workplace”. The definition of “workplace” in the PoSH Act is expansive. However, the prospect of applying the Act becomes murky when it comes to political parties.

3. Before the current PIL was filed at the SC, a court has only ever addressed this question once, when the Kerala High Court decided the case of Centre for Constitutional Rights Research and Advocacy v State of Kerala & Ors (2022).

4. On the subject of political parties, the court held that there is no “employer-employee relationship with its members” and political parties do not carry out “any private venture, undertaking, enterprises, institution, establishment, etc. in contemplation of a ‘workplace’ (under the P0SH Act)”. As such, the court held that political parties “are not liable to make any Internal Complaints Committee”.

5. The P0SH Act hangs its hat on protecting women from sexual harassment in the “workplace”, which can be difficult to determine for a political party. Party workers, for instance, who parties tend to employ in droves, often have little interaction with high-level officials and are hired temporarily to operate on the field without a defined “workplace”.

BEYOND THE NUGGET: Justice Hema Committee report

1. Last year, the report of the three-member Justice Hema Committee constituted by the Kerala government was made public. It looked into the problems faced by women working in the Malayalam film industry.

Kerala CM Pinarayi Vijayan receiving the report of the Hema Commission from Retired Justice K Hema. (Photo: Facebook/File)

2. The three-member committee, headed by retired High Court judge Justice K Hema, was formed in July 2017 in the wake of the sexual assault of a prominent actor in a moving vehicle in February that year.

3. The problem includes sexual harassment, lack of basic facilities like women’s toilets, gender bias and discrimination, disparity in remuneration, and the absence of a legally constituted authority to address their problems.

4. It said that one of the reasons why women do not file police complaints over the sexual harassment faced by them in the industry was the fear of facing online attacks. A prominent actor told the Commission that a powerful lobby exists that can make anything happen in the industry. This “mafia” can even ban actors, producers and directors, the report said.

5. This also means that the constitution of an internal complaints committee (ICC) would not be a solution for all the problems faced by women in the Malayalam film industry, according to the report.

6. The report said that if a woman is perceived as a “problem maker”, she may not get work again in the industry, and that this leads them to keep silent about many of the atrocities they face.

Post Read Question

Consider the following statements about the PoSH Act:

1. The PoSH Act provided legislative backing to the Vishaka Guidelines of 1997.

2. The Internal Complaint Committee has powers similar to those of a civil court in respect of summoning and examining any person on oath.

3. The Act protects the rights of all employees who are working or visiting any workplace.

Which of the statements given above is/are correct?

(a) 1 and 2 only

(b) 2 and 3 only

(c) 1 only

(d) 1, 2 and 3

(Note: Employees consist of both men and women, and the Act protects the rights of all women who are working or visiting any workplace, in any capacity. Thus, statement 3 is incorrect.)

(Sources: SC refuses to entertain plea to apply POSH Act to political parties, The PoSH Act, and the procedure for complaint against sexual harassment at the workplace, Explained: What is POSH, the law against sexual harassment in India?, Could the POSH Act apply to political parties?)

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