The Particularities and Possibilities of POSH Laws
The growing presence of women in the formal economy, the mainstream workforce of India, is considered to be a victory for the struggle for gender equality. However, this progress has created problems of it’s own. Sexual harassment at the workplace has assumed greater dimensions, and many gender studies experts believe that this culture continues to prevail in major corporate houses across the country. Workplace sexual harassment is a form of gender discrimination which violates a woman’s fundamental right to equality and right to life, which guaranteed under Articles 14, 15 and 21 of the Constitution of India (“Constitution”). It not only creates an insecure and hostile working environment for women but also impedes their ability to perform well in their job and affects career growth in the long term. Beyond the emotional, mental and physical suffering, it impedes the ability of women to gain socio-economic mobility and actualize their true potential.
India’s first legislation specifically addressing the issue of workplace sexual harassment; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (popularly known as the POSH Act) was enacted by the Ministry of Women and Child Development, India in 2013. The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 which has criminalized offences such as sexual harassment, stalking and voyeurism. Lastly, the Companies Act, 2013 was also passed to replace the Companies Act, 1956 to include the rules established under the POSH Act. The POSH Act has been enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints of sexual harassment.
However, the legitimacy and efficacy of the Act continues to be a question because the lack of proper implementation of the provisions of the statute remains a challenge. Although the law preventing sexual harassment at workplace has been in force since 2013, there remains lack of clarity on various aspects pertaining it, including what constitutes sexual harassment, obligations of an employer, remedies/safeguards available to the victim, and procedure of investigation. This can largely be attributed because of the lack of awareness generated on this issue and the reluctance and ignorance of the government which led to the lack of focus on awareness. Workers are unaware of the criminal consequences of certain behaviors like lewd jokes, inappropriate comments etc., which are dismissed as normal, with women being hesitant to initiate actions due to apprehension of being disbelieved or ridiculed; which underpins the need for greater awareness and greater enforcement. Any tool would be useless if the person operating it is unaware of the way it is to be used.
Even though many companies have taken the burden of awareness and reform upon themselves, the efficacy of those programs are very limited and variable- depending on how progressive the top management of the company is. Social awareness is a prerequisite for any legislation or legal provision, and this shows the scope of improvement in sexual harassment legislation and policy in India.
