Initiatives for effective implementation of POSH Act in Odisha

Context

The Odisha government has taken steps to expedite the effective implementation of the Sexual Harassment of Women at Workplace (POSH) Act, 2013 in all districts and government institutions.

Recent steps taken by Odisha Government

• Instructions issued to make formation of Internal Complaints Committees (ICC) mandatory in all government and private institutions
• Awareness campaigns and training programmes for employees, especially in rural and tribal areas
• Regular monitoring by district-level officials to ensure compliance of POSH Act
• Instructions by the state government to display women helpline number 181 at prominent places in educational campuses

Reason for need

• POSH was not being implemented properly in many public and private offices.
• No ICC was formed in many institutions, defeating the very purpose of the law.

Key Provisions of POSH Act, 2013

• Objective: To ensure a safe working environment for women
• Applicability: All workplaces – government, private, NGOs, unorganised sector
• Key provisions: Constitution of internal complaints committee, redressal mechanism, penalties for non-compliance
• Monitoring: Regular monitoring by district-level officers

Background of PoSH Act

• In 1992, Bhanwari Devi, a social worker with the Rajasthan government’s Mahila Vikas Pariyojana, was gang-raped by five men when she tried to prevent the marriage of a one-year-old girl.
• While hearing petitions regarding the gang-rape of a social worker in Rajasthan in 1992, the Supreme Court laid down a set of guidelines in 1997 against ‘sexual harassment at workplaces’, noting the absence of any law ‘enacted for effective enforcement of the basic human right of gender equality’.
• It was named the Vishaka Guidelines, which was intended to fill the legal void until a definite and clear law was framed. These guidelines were to be strictly followed in all workplaces and were legally binding.
• The court drew inspiration from Article 15 (against discrimination only on grounds of religion, race, caste, sex and place of birth) and relevant international conventions and norms, such as the general recommendations of the Convention on the Elimination of All Forms of Discrimination against Women.
• India ratified the Convention on the Elimination of All Forms of Discrimination against Women in 1993.
• The National Commission for Women submitted draft codes of conduct for the workplace in 2000, 2003, 2004, 2006 and 2010.
• In 2007, the then Minister for Women and Child Development, Krishna Tirath introduced the Protection of Women against Sexual Harassment at Workplace Bill. The amended bill came into force on December 9, 2013 as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) or POSH Act.
• Definition of sexual harassment, workplace and employee under PoSH Act
• The PoSH Act defines sexual harassment as unwelcome acts such as physical contact and sexual advances, demands or requests for sexual favours, making sexually inappropriate remarks, showing pornography and any other physical, verbal or non-verbal conduct of a sexual nature.
• It also lists five circumstances (acts) with respect to sexual harassment-
  • Implied or explicit promise of preferential treatment in employment
  • Implied or explicit threat of objectionable treatment in employment
  • Implied or explicit threat about present or future employment status
  • Interferes with work or creates intimidating or offensive or hostile work environment
  • Humiliating behaviour likely to affect health or safety
• Under this Act all women employees, whether employed on regular, temporary, contractual, ad-hoc or daily wage basis, as apprentices or trainees or without the knowledge of the principal employer, can seek redressal of sexual harassment at workplace.
• This Act expands the definition of ‘workplace’ beyond traditional offices and covers all types of organisations across all sectors, even non-traditional workplaces (for example those involving telecommuting) and places travelled by employees for work.
  • It applies to all public and private sector organisations across India.

Provisions for employers

• The law requires any employer with more than 10 employees to set up an Internal Complaints Committee (ICC).
• This is the committee any woman employee can approach to lodge a formal sexual harassment complaint.
• The ICC should be headed by a woman. It should consist of at least two women employees and one other employee.
• It should include a third party such as an NGO worker with at least five years of experience familiar with the challenges of sexual harassment to prevent any undue pressure from senior levels.
• The Act mandates every district in the country to form a Local Committee (LC) to receive complaints from women employed in firms with less than 10 employees and from informal sector domestic workers, home-based workers, voluntary government social workers, etc.
• The employer has to file an annual audit report with the District Officer about the number of sexual harassment complaints lodged at the end of the year and the action taken.
• The Act also mandates the employer to conduct regular workshops and awareness programmes to educate employees about the Act and organise seminars for ICC members.
• If the employer fails to constitute an ICC or does not comply with any other provision, it will have to pay a penalty of up to ₹50,000.

Barriers in implementation of the Act

Lack of formation of internal committee

According to some studies, most of the institutions have not constituted ICC. Where ICC was set up, it either had inadequate number of members or lacked the mandatory external member.

Lack of accountability

• According to legal experts and stakeholders, the Act does not address accountability satisfactorily.
• It does not mention clear provisions for ensuring compliance of the Act at workplaces and fixing accountability in case of non-compliance.
• The government told Parliament in 2019 that it did not have any centralised data on cases of harassment of women at workplaces.
• Despite more than 80% of India’s women workers being employed in the informal sector, cases of sexual harassment at workplaces are highly under-reported in India for several reasons.
• Lawmakers recognised that complaints could be addressed more effectively within civil institutions (workplaces) so that women do not have to go through the arduous processes of the criminal justice system related to access and timeliness.
  • However, there is a lack of clarity in this regard.
• Lack of awareness about such committees among women employees further aggravates the access barriers to the justice system.
• Power dynamics in organisations and fear of professional consequences also act as deterrents for women to file complaints.
• Sexual harassment cases often lack concrete evidence while the judicial system relies more on evidence.