Sexual Harassment at Workplace Act, 2013 - Proposed Modifications to the Posh

The Bill introduced in the Rajya Sabha, published in the Gazette of India on December 08, 2023.

Following are  proposed Amendments to POSH Act roles, 

1.Nullification of Local Complaints Committee (LC) replaced by Employment

Tribunal."Local Committee" replaced with "Employment Tribunal" throughout POSH Act. Employment Tribunal empowered to treat sexual harassment cases as legal trials for increased efficiency and conviction rates.

2. Constitution of Employment Tribunal Chairperson: Retired female judge of District Court. Members include retired female judge, social activist, woman from the district, sociologists, and female advocates.

3. Prolonged Timeframe for Complaints Section 9 modified for aggrieved women to file complaints within a reasonable timeframe. Employment Tribunal can extend the time limit with written justification based on circumstances.

4.  Rectifying Terminology Inconsistencies Substitution of "recommend to" with "direct" in Section 13(3) to make IC's recommendations binding. Section 13(4) amended to ensure the employer or District Judge acts upon Employment Tribunal's directions within sixty days.

Subject  in focus Evolving the Legal Landscape: Proposed Modifications to the Sexual Harassment at Workplace Act, 2013

NOTE FOR IC AND HR 

A pending Bill titled Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Amendment Act, 2022, is currently in the Rajya Sabha. The Gazette of India contains details of the proposed amendments published on December 08, 2023. 

Note this is   'BILL' at this stage ; for becoming an Act it  requires review and approval at  Lok Sabha, Rajya Sabha, and Presidential Assent. 

If successful, it will be named the PoSH (Amendment) Act, 2024.

Given this is not yet  a Law . Kindly note you are not required to amend policies or training material based on the proposed amendments.

Case in focus

Supreme Court's Ruling in Union of India & Ors. v. Dilip Paul: A Contextual Perspective Background of the Case: Dilip Paul, the respondent, served as the

Local Head of the Service Selection Board in Assam. A female employee in the same office filed a sexual harassment complaint against him in two stages.

Initial inquiries failed to substantiate the allegations, leading to a Central Complaints Committee inquiry finding the respondent guilty.The respondent approached the Central Administrative Tribunal (CAT) to cancel the inquiry, but CAT refrained from expressing opinions.

The Guwahati High Court (HC) limited the Central Complaints Committee's jurisdiction to the first complaint, setting aside its findings.

An appeal was then filed before the Supreme Court (SC), resulting in the overturning of the HC judgment.

Court's Observations: The bench, led by CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra, emphasized considering sexual harassment allegations in the broader case context, not solely based on procedural violations.The SC warned against undue sympathy towards the accused, emphasizing a balanced

approach in such cases. Highlighted the HC's limited jurisdiction, cautioning against functioning as an appellate authority.

Case in focus

Supreme Court's Ruling in Union of India & Ors. v. Dilip Paul: A Contextual Perspective Stressed that a mere procedural violation doesn't automatically imply prejudice to the respondent. The HC was criticized for overlooking established court principles and unreasonably setting aside the disciplinary authority's punishment order.

Conclusion:

The SC's ruling underscores the need to assess sexual harassment allegations within a comprehensive case perspective, balancing procedural aspects with the

broader context. The judgment reinforces the principle of avoiding hyper-technicalities in favor of a fair and contextual evaluation in such sensitive matters. The decision reaffirms the limited role of the HC in matters of this nature and urges adherence to established legal principles in disciplinary proceedings

Understanding the POSH Act 2013 and the POCSO Act: Safeguarding Rights and Dignity

The POSH Act (Prevention of Sexual Harassment at Workplace Act, 2013) and the POCSO Act (Protection of Children from Sexual Offences Act, 2012) are two landmark legislations in India that aim to protect individuals from sexual misconduct and abuse. While both laws address different contexts and demographics, they are united in their mission to uphold dignity, safety, and justice.

The POSH Act, 2013

The POSH Act was enacted in response to the increasing awareness of sexual harassment in workplaces. The law is based on the Supreme Court’s guidelines laid down in the famous Vishaka judgment of 1997. Its primary objective is to provide a safe and secure working environment for women.

Key Features of the POSH Act

The act defines sexual harassment as unwelcome physical, verbal, or non-verbal conduct of a sexual nature. It applies to all workplaces, including private organizations, public sector units, NGOs, and even domestic workers. Organizations with 10 or more employees are required to constitute an Internal Complaints Committee (ICC) to address complaints. Complaints must be resolved within 90 days to ensure timely justice. Employers are also obligated to create awareness, provide training, and ensure a harassment-free environment. The POSH Act emphasizes prevention, prohibition, and redressal of sexual harassment, thus creating a structured mechanism for addressing grievances.

The POCSO Act, 2012

The POCSO Act was introduced to protect children (individuals under the age of 18) from sexual offenses, exploitation, and pornography. It recognizes the unique vulnerabilities of children and ensures a child-friendly judicial process.

Key Features of the POCSO Act

The act provides a comprehensive definition of various forms of sexual offenses, including sexual assault, harassment, and pornography. It is a gender-neutral law that applies to all children, irrespective of gender. The act mandates that any person aware of an offense against a child must report it, failing which they may face penalties. Special courts and processes are set up to reduce trauma for the child during the investigation and trial. The act prescribes severe punishments to deter offenders, including imprisonment and fines. Additionally, it includes provisions for counseling and rehabilitation of victims to help them reintegrate into society.

Key Differences Between POSH and POCSO

While both the POSH Act and the POCSO Act aim to address sexual misconduct, they focus on different target groups and settings. The POSH Act primarily deals with the prevention and redressal of workplace harassment against women, while the POCSO Act is focused on the protection of children from sexual offenses in any environment, including homes, schools, and public spaces. The POSH Act is gender-specific, targeting women, whereas the POCSO Act is gender-neutral, protecting all children. The POSH Act relies on an Internal Complaints Committee for addressing grievances, while the POCSO Act involves child-friendly courts and procedures to ensure minimal trauma to the child.

Conclusion

The POSH and POCSO Acts are instrumental in addressing sexual harassment and abuse in their respective domains. While the POSH Act empowers working women by ensuring safe workplaces, the POCSO Act protects the innocence and rights of children by addressing sexual offenses with utmost seriousness.

Together, these laws reflect India’s commitment to creating a society where individuals can live with dignity, free from fear of harassment or abuse. Effective implementation, coupled with widespread awareness, remains crucial to achieving the goals envisioned by these progressive legislations.

Filing a Complaint under the POSH Act: Procedure and Timelines

The Prevention of Sexual Harassment (POSH) Act, 2013, was enacted to create a safe workplace environment and ensure that incidents of sexual harassment are addressed promptly and effectively. A key aspect of the Act is the process by which employees can file a complaint if they experience sexual harassment at work. This article delves into the complaint filing procedure under the POSH Act, including the essential timelines, extensions, and rights of the complainant.

1. Who Can File a Complaint under the POSH Act?

The POSH Act allows any aggrieved woman to file a complaint if she has faced sexual harassment in the workplace. The complainant can be:

• A woman employed in any capacity (temporary, permanent, part-time, or full-time).

• An employee in an organization (including interns and contractual staff).

• A woman visiting the workplace or a client of the organization.

Additionally, if the complainant is unable to file a complaint due to physical or mental incapacity or for other valid reasons (such as death), her legal heir, a relative, or a person authorized by her can file the complaint on her behalf.

2. Procedure for Filing a Complaint

The POSH Act lays down a straightforward process for lodging a complaint of sexual harassment. This process ensures that the complainant’s rights are respected and that the complaint is handled with sensitivity.

a) Written Complaint

• The complaint must be submitted in writing by the aggrieved woman to the Internal Complaints Committee (ICC) at the workplace.

• The complaint should describe the incident(s) of harassment in detail, providing relevant facts, names, dates, and any available evidence.

• If the complainant is unable to provide a written complaint, the ICC is obligated to assist her in writing it down and recording her statement.

b) Timeline for Filing a Complaint

• The complaint must be filed within three months of the incident. In cases where there is a series of incidents, the complaint should be submitted within three months of the last occurrence.

• The three-month time limit ensures that the issue is addressed swiftly, minimizing the risk of workplace disruption and allowing the complainant to seek redressal without undue delay.

c) Extension of the Timeline

• Recognizing that certain circumstances might prevent the complainant from filing within the stipulated timeframe, the ICC has the authority to extend the deadline by an additional three months if there are reasonable grounds for the delay.

• For example, delays due to trauma, mental stress, or fear of retaliation are valid reasons for seeking an extension.

3. Employer's Role in Facilitating the Complaint Process

Employers are required to create an environment that encourages employees to report incidents of sexual harassment without fear of retaliation. The POSH Act mandates that employers should:

• Publicize the existence and composition of the Internal Complaints Committee (ICC) and make employees aware of the process for filing complaints.

• Ensure confidentiality during the complaint process, maintaining the privacy of both the complainant and the respondent.

• Provide assistance to the complainant, including offering legal support or guidance if necessary.

Employers who fail to comply with these requirements can be held liable under the law.

4. Rights of the Complainant During the Inquiry Process

Once a complaint has been filed, the POSH Act ensures that the complainant’s rights are protected throughout the inquiry process. The complainant is entitled to:

a) Confidentiality

• The details of the complaint, the identity of the complainant, and the proceedings of the inquiry must be kept confidential at all times.

• The ICC is required to take necessary steps to prevent the disclosure of sensitive information that could affect the complainant’s dignity or professional reputation.

b) Interim Relief

• During the course of the inquiry, the complainant may request interim relief from the ICC. This could include a temporary transfer of the complainant or respondent, granting leave to the complainant, or ensuring that the respondent is prevented from interacting with the complainant.

• These interim measures are designed to protect the complainant from further harassment or retaliation while the inquiry is ongoing.

c) No Retaliation

• The law strictly prohibits any form of retaliation against the complainant for filing a complaint of sexual harassment. The employer must ensure that the complainant is not subjected to adverse consequences, such as demotion, dismissal, or workplace discrimination, during or after the inquiry.

5. Complaint Resolution and Timelines for Inquiry

Once a complaint has been received, the Internal Complaints Committee (ICC) is required to initiate an inquiry into the matter. The POSH Act sets strict timelines for the entire inquiry process:

a) Inquiry Initiation

• The ICC must begin the inquiry process within seven days of receiving the written complaint. This includes notifying the respondent (the alleged harasser) and allowing them to provide their response to the allegations.

b) Duration of the Inquiry

• The inquiry must be completed within 90 days from the date the complaint was received. This timeline ensures a swift resolution of the matter, minimizing any potential disruptions or prolonged stress for the parties involved.

c) Submission of the Final Report

• After completing the inquiry, the ICC is required to submit its findings and recommendations to the employer within 10 days. The report will outline whether the complaint has been substantiated and recommend actions such as disciplinary measures, termination, or compensation.

d) Implementation of Recommendations

• The employer must act on the ICC’s recommendations within 60 days of receiving the report. Failure to do so may result in penalties under the POSH Act.

6. Failure to File a Complaint: Legal Recourse and Remedies

If the complainant does not feel comfortable filing a complaint with the Internal Complaints Committee (ICC) or believes that the ICC is not handling the matter appropriately, there are alternative legal remedies:

• Appeal to a Higher Authority: The complainant may appeal to a court or tribunal if dissatisfied with the outcome of the ICC inquiry or if the ICC fails to conduct a proper inquiry.

• File a Civil or Criminal Complaint: The complainant can also seek legal recourse by filing a civil or criminal complaint against the harasser if the harassment constitutes a punishable offense under Indian law.