Protection of Women from Sexual Harassment (POSH) Act, 2013 | 07 Jan 2022

Why in News

Recently, a petition has been filed in the Supreme Court challenging guidelines issued by the Bombay High Court in cases under the Protection of Women from Sexual Harassment (POSH) Act, 2013.

• The provision that challenged pertains to blanket bar on parties and advocates from sharing records, including orders and judgments, with the media.
• The guidelines were formed by Justice G.S. Patel of the Bombay High Court ostensibly to protect the identities of the parties in a case under the POSH Act.

Key Points

• Arguments of the Petitioner:
  • Against Spirit of Article 19: The petitioner argued that a blanket bar is against the freedom of speech and expression enshrined under Article 19.
    • The petition said a well-informed citizenry governs itself better.
    • Right to free speech can be curbed only if it interferes with the administration of justice.
    • Any injunction on the right of the people to know true and accurate facts is an encroachment on their right to information.
  • Suppression of Women’s Voices: It can serve as a tool for powerful men to continue sexually harassing women and thereafter suppressing their voices on social media and in the news media.
    • In matters of social justice and women empowerment, public discourse plays a crucial role in shaping the nature of legal entitlements that are delivered to women.
    • The order may have a “ripple effect” and deter survivors from approaching courts as well as setting a dangerous precedent for trial cases.
  • Against Principle of Open Court: The legitimise undue protection to sexual offenders in gross violation of principles of open court and fundamental rights of survivors.
    • An open court serves an educational purpose.
    • The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights.

Protection of Women Against Sexual Harassment Act, 2013

• Background: The Supreme Court in a landmark judgement in the Vishakha and others v State of Rajasthan 1997 case gave ‘Vishakha guidelines’.
  • These guidelines formed the basis for the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Sexual Harassment Act").
• Mechanism: The Act defines sexual harassment at the workplace and creates a mechanism for redressal of complaints.
  • Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.
  • The Complaints Committees have the powers of civil courts for gathering evidence.
  • The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.
• Penal Provisions: Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine.
  • Repeated violations may lead to higher penalties and cancellation of license or registration to conduct business.
• Responsibility of Administration: The State Government will notify the District Officer in every district, who will constitute a Local Complaints Committee (LCC) so as to enable women in the unorganised sector or small establishments to work in an environment free of sexual harassment.

Way Forward

• There is a need to implement JS Verma Committee recommendations on Sexual Harassment at the Workplace Act:
  • Employment Tribunal: Setting up of an employment tribunal instead of an internal complaints committee (ICC) in the Sexual Harassment at the Workplace Act.
  • Power to Form Own Procedure: To ensure speedy disposal of complaints, the committee proposed that the tribunal should not function as a civil court but may choose its own procedure to deal with each complaint.
  • Expanding Scope of Act: Domestic workers should be included within the purview of the Act.
    • The Committee said any “unwelcome behavior” should be seen from the subjective perception of the complainant, thus broadening the scope of the definition of sexual harassment.
  • Responsibility of Employer: The Verma panel said an employer should be held liable if:
    • he or she facilitated sexual harassment.
    • permitted an environment where sexual misconduct becomes widespread and systematic.
    • Where the employer fails to disclose the company’s policy on sexual harassment and ways in which workers can file a complaint.
    • When the employer fails to forward a complaint to the tribunal
    • The company would also be liable to pay compensation to the complainant.
    • The panel opposed penalizing women for false complaints as it can potentially nullify the objective of the law.
    • The Verma panel also said that the time-limit of three months to file a complaint should be done away with and a complainant should not be transferred without her consent.

Source: TH