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Present Condition Of Law Against Sexual Harassment Of Women At The Workplace

Since January 18, 2023, India's top wrestlers named Phogat, Bajrang Punia, Ravi Dahila, and several other wrestlers are protesting against the president Brij Bhushan Sharan Singh and the wrestling body at the Jantar Mantar in New Delhi. Brij Bhushan Sharan president of the Wrestling Federation of India (WFI) and a BJP Lok Sabha MP from Uttar Pradesh alleged the wrestlers that Brij Bhushan Singh had sexually harassed them for years Also, they pointed out that there is an atmosphere of fear and intimidation at national camps and some national coaches also work on his behalf.

Against Brij Bhushan Sharan Singh, the BJP MP who oversees wrestling in India, wrestlers have been protesting at Jantar Mantar in New Delhi. The allegations were investigated by a government committee chaired by boxer M. C. Mary Kom. But, According to a report that appeared on May 4 in The Indian Express, 16 out of India's 30 national sports federations lack an internal complaints committee (ICC), which is made mandatory by the Prevention of Sexual Harassment (PoSH) Act 2013.

The Law Against Sexual Harassment Of Women In The Workplace

The PoSH Act is also known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, which was passed in 2013. But before 2013 the instance of discrimination against women is first time illustrated in the case of Vishaka v. State of Rajasthan. In its landmark decision Vishaka v. State of Rajasthan ("Vishaka Judgement"), the Honourable Supreme Court of India recognized workplace sexual harassment for the first time in India. The Union of India was given orders by the Supreme Court to pass an adequate law to handle workplace sexual harassment. The POSH Act and the POSH Rules were passed 16 years after the Vishaka Judgement.

In the above-said case, A social worker named Bhanwari Devi a Dalit woman employed with a rural development program of the Rajasthan government was gang-raped in because she was trying to stop child marriage. Unfortunately, this case was dismissed due to a lack of proof for supporting the crime.

However, this incident gained support from several NGOs and social activists, reinforcing the need for specific legislation for workplace sexual harassment of women in light of gender equality immediately after that, this writ petition was filed under Article 32 by many social activists and NGOs because Articles 14, 15, and 21 of the Constitution had been violated. The Supreme Court for the first time acknowledged clear legal shortcomings and recognized workplace sexual harassment as a violation of human rights.

The Vishaka Guidelines introduced the term "sexual harassment" and gave Institutions three major duties: prohibition, prevention, and redress.

The Supreme Court instructed them to form a complaints committee to investigate claims of sexual harassment of women at work. The rules are now enforceable by the court.

The Vishaka Guidelines, created by the Supreme Court in a 1997 judgment, were broadened by the 2013 statute and given legal effect.

The Act defines sexual harassment as any inappropriate behavior (directly or indirectly), such as:
  1. Physical advances and contact
  2. Request or demand for sexual favors
  3. Making remarks with a sexual agenda
  4. Showing adult content

Any other inappropriate sexual behavior, whether it be physical, verbal, or nonverbal. The Act offers a procedure for preventing, outlawing, and resolving claims of sexual harassment in the workplace.

Additionally, the PoSH Act lists five situations that qualify as sexual harassment:
  1. The implied or explicit threat about the complainant's current or future work status.
  2. Implied or explicit promise of special treatment in her employment.
  3. The implied or explicit threat of unfavorable treatment;
  4. Interfering with the complainant's job or generating a hostile or unpleasant work environment.
  5. Humiliating the complainant in a way that might endanger her health or safety

Obligations of the employer:
  1. To give women a secure working environment.
  2. Showcase the legal repercussions of sexual harassment.
  3. Create workshops and awareness programs.
  4. If the complainant decides to bring a criminal case against the respondent, assist her.
POSH Act and Redressal Forum:
One of the important features of the POSH Act is to direct the setting up of a grievance redressal forum in every office.
  1. Internal Complaint Committee
    The POSH Act requires an employer to set up an 'Internal Complain Committee' ("ICC") at each office or branch, of an organization employing 10 or more employees, to hear and redress grievances about sexual harassment. Failure to constitute the ICC has led to the imposition of a fine under the POSH Act.

    Constitution of the Internal Complaint Committee:
    1. Presiding Officer must be a woman employed at a senior level in the workplace from amongst the employees
    2. A minimum of two people chosen from the employees.
    3. One external representative from an NGO, group, or individual who is knowledgeable about sexual harassment issues.
    4. Each office or branch with ten or more workers must have an Internal Complaints Committee (ICC), which must be established by every office.
    5. The term of the IC Members shall not exceed 3 years.
    6. A minimum of 3 Members of the ICC including the Presiding Officer are to be present for conducting the inquiry.
  2. Local Complaint Committee
    The Act also allows the District Officer to establish a Local Complaints Committee (LCC) when the complaint is against the employer or when less than 10 employees are working there. The LC is especially important when domestic employees are the targets of sexual harassment or when the complainant is the employer himself or a third party who is not an employee.
    1. Committed to the cause of women.
    2. One of the members must be nominated amongst the women working in a block, Taluka, tehsil, ward, or municipality in the district.
    3. Two NGO members, out of which, at least one shall be a woman to be nominated from an NGO or an association committed to the Cause of women or a person familiar with issues of sexual harassment against women.
    4. Chairperson must be an eminent woman in the field of social work.

The procedure of filling a complaint:
As per Section2(a) of the POSH Act a complaint may be filled by the aggrieved woman or in case of mental incapacity, physical incapacity, or death of the aggrieved woman complaint may be filled by - Her relative, friend colleague, legal heir, a special educator, a psychiatrist, any other person who know about the incident but with her written consent, in case of death than with the written permission of her legal heir.

In essence, for the ICC to take action, the aggrieved victim does not need to file a complaint. She "may" do so, and if she is unable, any ICC member "must" provide her with "all reasonable assistance" in filing a formal complaint, under the Act.

According to the Act, the complaint must be filed "within three months from the date of the incident or within three months of the date of the latest event in the case of several instances. The ICC may, however, extend the deadline if "it is satisfied that the circumstances were such that prevented the woman from filing a complaint within the said period."

Before taking action on a complaint, the IC may, at the request of the aggrieved women may, attempt to resolve the dispute between the parties through conciliation by reaching an amicable solution. Despite this, conciliation should not be based on a monetary settlement.

Timeline Of The Inquiry Process
  1. The Inquiry must be finished within a total of 90 days after the complaint is received.
  2. Within 10 days of the investigation, the investigation report must be published.
  3. Within 60 days of receiving the Inquiry report, the Employer must consider the IC/LC's recommendations...
  4. Within 90 days following the date of the committee's recommendations, an appeal against the decision may be filed.

Punishment and Compensation
According to the POSH Act, an employer can punish an employee for engaging in sexual harassment in the following ways:
  • The penalty specified by the organization's service rules;
  • In the absence of service rules, disciplinary action, such as a written apology, warning, reprimand, censure, withholding of a promotion or pay raise or increments, terminating the respondent's employment, requiring him to attend counseling or perform community service; and
  • Deducting the compensation Payable to the victimized woman from the respondent's wages.

Under the Posh act, the compensation to be paid will be decided depending on:
  1. The aggrieved employee's mental trauma, pain, suffering, and emotional distress;
  2. The loss of career opportunities as a result of the sexual harassment incident.
  3. The victim's medical costs for physical and mental treatment; the income and status of the alleged perpetrator; and
  4. The viability of such payment in one lump sum or installments.

Protection Against A False Complaint Of Sexual Harassment

The POSH Act includes provisions for action against "false or malicious" complainants to prevent abuse of the safeguards intended by the legislation. False or malicious complaints and false evidence are punished under Section 14 of the Act. In this situation, the ICC "may recommend" to the employer that it take action against the woman or the person who filed the complaint "under the provisions of the service rules."

However, the Act makes it clear that failure to "substantiate the complaint or provide adequate proof" is not sufficient grounds for action.


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