POSH ACT 

1. Context 

2. The law against sexual harassment of women in the workplace

• 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.

3. Vishaka Guidelines

• The 2013 law broadened and gave legislative backing to what is known as the Vishaka Guidelines, which were laid down by the Supreme Court in a judgment passed in 1997.
• The case in question was filed by women's rights groups, including one called Vishaka, over the alleged gangrape of a social worker from Rajasthan named Bhanwari Devi.
• Bhanwari had fought against the marriage of a one-year-old baby girl in 1992 and had been allegedly gang-raped as retribution.
• The Vishaka Guidelines defined sexual harassment and imposed three key obligations on institutions Prohibition, Prevention and Redress.
• The Supreme Court directed that they should establish a Complaints Committee, which would look into matters of sexual harassment of women in the workplace. The court made the guidelines legally binding.

4. PoSH Act about the complaints committee

• The PoSH Act subsequently 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 lay down procedures for action in case of a complaint.
• 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.

5. Sexual Harassment under the PoSH Act

1. Physical contact and advances
2. A demand or request for sexual favours
3. Sexually coloured remarks
4. Showing pornography
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

1. Sexually suggestive remarks or innuendo
   Serious or repeated offensive remarks
2. Inappropriate questions or remarks about a person's sex life
3. Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or Emails
4. Intimidation, threats, blackmail around sexual favours
5. Threats, intimidation or retaliation against an employee who speaks up about these
6. Unwelcome social invitations with sexual overtones, commonly seen as flirting 
7. Unwelcome sexual advances
8. The Handbook Says "Unwelcome behaviour" is experienced when the victim feels bad or powerless and when it causes anger/sadness or negative self-esteem.
9. Unwelcome behaviour is "illegal, demeaning, invading, one-sided and power based".

1. Implied or explicit promise of preferential treatment in her employment
2. The implied or explicit threat of detrimental treatment
3. The implied or explicit threat about the complainant's present or future employment status
4. Interference with the complainant's work or creating an offensive or hostile work environment
5. Humiliating treatment of the complainant that is likely to affect her health or safety.

6. The procedure for a complaint under the Act

• The aggrieved victim does not need to file a complaint for the ICC to take action.
  The Act says that she "may" do so and if she cannot, any member of the ICC "shall" render "all reasonable assistance" to her to complain in writing.
• If the woman cannot complain because of "physical or mental incapacity or death or otherwise" her legal heir may do so.
• 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".
• The ICC may before the 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".
• 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.
• The ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath and requiring the discovery and production of documents.
• 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.
• The identity of the woman, respondent, witness, and any information on the inquiry, recommendation and action taken, should not be made public.

7. ICC Action on the Complaint 

• If the allegations of sexual harassment are proven, the ICC will recommend to the employer to take action "by the provisions of the service rules" of the company.  These may vary from company to company.
• The ICC may also recommend that the company deduct the salary of the person found guilty, "as it may consider appropriate". The compensation is determined based on five aspects:

1. Suffering and emotional distress caused to the woman
2. Loss of career opportunity
3. Her medical expenses
4. Income and financial status of the respondent
5. The feasibility of such payment

8. False complaint of sexual harassment

• Section 14 of the Act deals with punishment for false or malicious complaints and false evidence.
• In such a case, the ICC "may recommend" to the employer that it take action against the woman or the person who has made the complaint, in "accordance with the provisions of the service rules".
• The Act, however, makes it clear that action cannot be taken for "mere inability" to "Substantiate the complaint or provide adequate proof".