Nov 16,2018 | 15 min read

A View Of POSH (The Cause And The Laws)

A View Of POSH (The Cause And The Laws)

Let us discuss in brief about laws on sexual harassment of women at workplace. This is a very sensitive topic at present especially with the Metoo movement going on.

Background

Prior to the POSH (Policy for Prevention of Sexual Harassment)[1] and Vishaka guidelines, women had to address their such grievances under section 354 of Indian Penal Code, 1860[2]. The landmark Judgment in the case of Vishaka & Ors Vs. State of Rajasthan (1997), laid down “Vishaka guidelines”. The Vishaka case was a writ petition filed by a social worker who was gang raped because she tried to stop child marriages. Instead of helping her grievance the police and the system harassed her to an extreme extent. However she (Bhanwari Devi) did not lose hope and succeeded in bringing reforms. Addressing the issue of sexual harassment with a better and fast process was also prayed under this writ petition.  

I shall not go into the details of what constitutes sexual harassment and every Supreme Court (SC) guidelines. I shall look into some of the important provisions.

The Provisions

The Supreme Court provides the aggrieved with guidelines that protection and counselling has to be provided to the victim by the employer. The companies have to submit an annual report regarding compliance to these guidelines. In 2013 POSH was finally enacted because the guidelines were not deemed enough. Under the Act the employer of the company has been held responsible and if found guilty can be punished with a fine of Rs. 50,000/- or his license or registration of the company can also be cancelled.

In the Indian Penal Code Section 354- A to D has been inserted in the year 2013 dealing with sexual harassment at work places. The offender can get punishment usually between 5-7 years of imprisonment with or without fine as per the discretion of the court and the facts of each case.  To have a better understanding of the issue one can also research on the Beijing convention and CEDAW.

Our constitution dreams of a very progressive society and provides for provisions such as, Equality before law (Art. 14), Right to freedom of speech and expression (Art. 19) and right to life and lead a life with dignity provided (Art. 21). We have many laws for protection of the vulnerable section of the society and the laws are constantly evolving.

Our society is far from practicing the fundamental rights which must be ensured to every citizens of India by the state. In my opinion enacting laws will not change the social values but will definitely speed up the process. Therefore social change movements are also essential for a positive change.

Society is evolving for better in many ways and now women do not accept harassment and exploitation based on their gender, as a way of life.

The other view

Many have raised the question of misuse of such provisions. There is no denying that any provisions can be misused. For example laws against rape, dowry, domestic violence etc. can all be misused and in some cases are misused but still the maximum cases of each of the above example go unreported because of victim blaming/shaming in our culture.

Conclusion

In clear cases of sexual harassment the perpetrator knows what he is doing but in cases of lesser magnitude the men have to understand where to draw the line to not make the woman uncomfortable. This can only happen with a cultured upbringing and teaching men and women to co-live as equals.

I would like to take this further and widen the horizon and people need to understand if we are exercising our authority over our subordinates inappropriately irrespective of their gender and exploit them in any way. The problem is not limited to sexual harassment of women. Exercising authority and misbehaviour towards people who are your subordinates is human rights violation. Now the corporates have improved their work culture to a great extent but still there is a long way to go to reach a place where all employees are treated with dignity at their workplace.

[1] POSH came into force on 9th December 2013.

[2] Sec. 354- Assault or criminal force to woman with intent to outrage her modesty



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ABOUT THE AUTHOR



Kashu Shubhamoorty

LLM in Commercial Law (University of Glasgow) with 11 years of experience in Legal Matters. | Working as a legal counsel in corporate law and associate with Adv. Ghagarkar. My profile includes dealing with regulatory compliance laws, contracts, deeds, software license, telecom, hardware, etc., advising on risk mitigation in contracts. Mediation and negotiations in company and consumer disputes. Lead a team with Accenture Services Pvt. Ltd. And worked with Dell India Pvt. Ltd.

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