The Prevention of Sexual Harassment (POSH) Act was introduced in 2013 to combat the rising number of sexual harassment incidents being reported by women within their places of employment. This ever-increasing number has seen a particularly steep rise in case numbers reported in light of more and more women entering the workforce, both formal and informal. It has become essential to ensure that a safe and secure working environment can be made available to women and that strict rules and regulations be placed for the same. In light of these facts, the POSH Act was introduced and enforced in 2013.

Introduction
Women have entered the workforce in light of the new age norms relating to women's empowerment and independence. It is now presumed that women have the right to be their breadwinners and, if necessary, can even take up their family's financial responsibilities. In many cases, it is seen that there may be a situation where women are forced to become the sole breadwinner for their families. As a result, the employment rates of female employees are at an all-time high worldwide.

However, this rise in employment rates has also led to a subsequent increase in cases of sexual harassment against women within their offices or places of employment. Women who are endlessly toiling away day and night are so cruelly mistreated by their colleagues and superiors, who see this as a golden opportunity for themselves. More than not, it is seen that women are forced into such instances based on threats regarding their jobs, reputations, etc.

Those in higher positions force themselves so mercilessly on female employees working under them or even alongside them and often ensure that the said employee stays quiet by threatening to fire them or tarnish their reputation. In fear of such outcomes, many a time, the victim chooses to suffer silently instead of voicing out their plight. This, however, is a representation of the formal sector alone. While looking into the informal sector and women employed in jobs such as domestic workers or house help, they too are known to have been subjected to such unwanted advances by their employers or any other male within their place of employment.

Such incidents have become regular in locations worldwide, with millions of women falling prey to such despicable acts each day. Taking into consideration the present situation in India alone, a report published by the Women's Indian Chamber of Commerce and Industry's Council of Ethics in May stated that nearly fifty per cent of the respondents taken into consideration in the survey were reported to have been a victim of sexual harassment within their workplace[1].

To make matters worse, it was also stated within the same report that out of all the victims interviewed, more than half decided not to file a formal complaint with the authorities. As a result, the perpetrators continue to live free and fearless while the victims cower away in shame and apprehension. Unfortunately, such instances are nothing new in today's time and society, and there have been several similar occurrences over the years. However, the number of cases we may be aware of might be a drop in the ocean of the actual number of cases that may have occurred, considering the large number of unreported incidents.

POSH Act

Such incidents have thereby become a regular occurrence in workplaces and have resulted in immense hardships for the women of the working class. In response to this persistent situation, the government has interfered with and enforced various laws and statutes to regulate and punish such acts within our society. One such act introduced is the Prevention of Sexual Harassment (POSH) Act, also known as the Sexual Harassment of Women at Workplace Act.

The act was introduced by the Indian parliament in 2013 and aimed to fight against sexual harassment against women within their workplace while ensuring the speedy redressal of any such complaints that have been filed. It also simultaneously promoted gender equality and women empowerment, working towards the creation of a safe and secure environment for women within the workforce.

As stated earlier, the POSH Act was formulated in response to the increased frequency of sexual harassment incidents at workplaces. However, the act's introduction was inspired by the landmark case of Vishakha Vs—the state of Rajasthan. As declared by the Supreme Court, the case verdict Laid down specific guidelines for evaluating sexual harassment cases, particularly those that occur within places of employment. From these guidelines, a proper act was devised and enforced by the Indian Parliament in September 2013.

Vishakha v/s State of Rajasthan

In the landmark case of Vishakha vs. the State of Rajasthan, filed in the 1990s, Ms Bhanwari Devi, a social worker, filed a complaint against five men who gang-raped her after she intervened to stop child marriage. Despite facing criticism for her activism against child marriage, Bhanwari persisted in her efforts[2]. The legal process was marred by delays and lack of cooperation, leading to the acquittal of the accused due to their political connections. In response, women activists, under the banner of 'Vishakha,' filed a Public Interest Litigation, highlighting the absence of laws addressing sexual harassment in the workplace.

The Supreme Court, recognising the violation of fundamental rights (Articles 14, 15, 19(1)(g), and 21), ruled in favour of the prosecution, citing international conventions and establishing the Vishakha guidelines to address workplace sexual harassment. These guidelines laid the foundation for legislation dealing with sexual harassment in the workplace. They also formulated an essential structure for future legislation, such as the Prevention of Sexual Harassment (POSH).[3] Following this, the court later on, in 2013, established the Vishakha guidelines to regulate cases concerning sexual harassment in the workplace.

The Vishakha Guidelines

The Vishakha guidelines were established by the Supreme Court following the Vishakha vs. State of Rajasthan case in 1992. These guidelines aimed to address sexual harassment in the workplace, necessitated by the absence of specific laws on the matter. Drawing from the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the guidelines defined sexual harassment and emphasised the employer's responsibility to create a safe work environment.

The guidelines prohibited unwelcome sexually determined behaviour, including physical contact, advances, demands or favours, displaying pornography, or any other verbal or physical advances toward the victim[4]. They also outline preventive measures to address sexual harassment, including establishing clear rules and regulations that all employees must know. Employers are tasked with taking disciplinary action and assisting victims in filing complaints if incidents occur. There is also emphasis on the employer's role in preventing future occurrences and stress the importance of legislative enforcement and victim protection.

However, the guidelines underwent various follow-ups over the years regarding the multiple opinions or suggestions that may be brought up over time, such as in the recent debate regarding the amendment of the guidelines to include filing of harassment cases that may have occurred in the past[5]. Justice Sujata Manohar suggested that the guidelines be enforced to cover previous cases as well and not just the newly occurring ones, and that the policies should be tweaked in accordance with it. However, there were arguments raised that even if incidents from the past could be filed as a case today, the lack of evidence would lead to an unfavourable outcome for the victim.

In 2012, Ms. Medha Kotwal challenged existing guidelines, alleging that they were not being properly implemented, leading to harassment of female employees by state officials. She formally expressed her concerns in a letter, which was then turned into a writ petition by the court. The court agreed that state governments needed to ensure compliance with the guidelines, urging them to make necessary legislative changes to address the issues raise. The investigation revealed that most states had made only superficial changes to comply with the guidelines, resulting in ineffective enforcement.

For instance, Arunachal Pradesh did not amend its Civil Services Conduct Rules or Standing Orders, while Nagaland failed to update its Standing Orders. These inadequate adjustments hindered the guidelines' proper implementation[6].

Certain other states had been unable to constitute a proper complaint committee, as proposed earlier. In light of these findings, the court ordered that states would now onwards:

1. Publish proper notifications regarding the state's compliance with the guidelines that the court has framed.
2. Publicise every month in forms of media such as Doordarshan, Sikkim regarding the steps taken by the state government in terms of implementation of these guidelines.
3. The Social Welfare Department and the Legal Service Authority of Sikkim shall also publicise the notifications and orders issued by the State Government for the Government departments of the State and its agencies, as well as for private companies.

Following the initial guidelines for addressing sexual harassment, both judicial and legislative bodies in India continued their efforts to strengthen legal and social frameworks. The National Commission for Women proposed drafts of the workplace Code of Conduct. At the same time, in 2007, the Minister of Women and Child Development introduced the Protection of Women against Sexual Harassment at Workplace Bill. This bill evolved into the Sexual Harassment of Women at Workplace Act, enacted on December 9, 2013, reflects ongoing endeavours to enhance measures for combating workplace harassment.[7]

The POSH Act

Formal legislation addressing workplace harassment in India, like the POSH Act, was introduced and enforced nearly sixteen years after the Vishakha case, following a lengthy process. The draft was presented in 2007 and introduced in the Lok Sabha in 2010. In 2012, an amended version was passed, titled Sexual Harassment of Women at Workplace Bill gained approval in the Rajya Sabha in 2013 and received presidential assent before being enforced in December of the same year.[8] The Act followed the exact definition as stated within the Vishakha guidelines.

It specified certain instances that can constitute sexual harassment, such as the promise of preferential treatment, a threat to one's employment, etc. Its jurisdiction extends to India and applies to all organisations within its territory, such as industries, educational institutions, government establishments, etc[9].

The law aims to prevent sexual harassment against women in their workplace, create a safe working environment for women, and ensure effective redressal of complaints. In addition, the act introduces the concept of 'an extended workplace,' which may constitute any place frequented or visited by the employee in due course of employment or under their superior's order. This ensures that sexual harassment attempts or incidents that occur beyond the workplace but within the period of discharging one's official responsibility can still constitute a complaint filed under the act.

The act defines various other essential terms, such as 'employee,' 'workplace,' 'aggrieved women,' etc., under Section Two for more ease and clarity within the legal proceedings. Section four and Section Six of the Act enforce the setting up of a complaints committee or a grievance redressal forum, which is classified into an Internal Committee (specified under Section 4) and a Local Committee (established under Section 6). As per the requisites stated, every organisation is bound to have an internal complaint committee compromising of:

1. A female employee in a senior position as a presiding officer of the said committee,
2. At least two employees with prior experience in dealing with social matters and
3. A member from any non-governmental organisation[10] (Section 4, POSH Act, n.d.).

As per Section Six, a District Officer must constitute a local committee within the concerned district to receive and address any complaints. The officer is also tasked with appointing nodal officers to receive and forward complaints. These committees mainly focus on organisations within the informal sector or those without internal committees because they have less than ten members.

Section nine of the act enables any aggrieved woman to file an official complaint with the Local or Internal Committee within three months from the date of the incident. It ensures the provision of any assistance they may require in terms of citing the complaint other sections under the act deal with matters regarding conciliation, redressal, etc.

To better understand the statute, one must analyse its 'Statement of Objective and Reasons,' which explains the significance and reason for enacting a law. As per the Statement of Objective and Reasons of the POSH Act, it has been stated that sexual harassment violates a woman's fundamental right to equality, life, and liberty, according to Articles 14, 15, and 21 of the Constitution. It can also violate a person's right to practice any profession or carry on any occupation, trade, or business[11] (Arora, 2022). Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women states that the state must take all required measures to eliminate discrimination against women in their employment[12].

Even after implementing the POSH Act, various arguments have been concerning what actions or aspects can be brought under its jurisdiction. Many times, courts have released decrees over which all activities can be said to constitute an act of 'sexual harassment' upon a victim. Such a scenario was an argument presented within the Chhattisgarh High Court, whereby the petitioner, a professor within a government educational institution, argued that the defendant used obscene language about the petitioner within their workplace.

Following this, there was a great debacle concerning whether or not the same could be liable to constitute sexual harassment, as stated within the POSH Act and Vishakha guidelines. The court ruled that even obscene language can include sexual harassment, and the court charged the defendant with the same[13].

However, in recent years, certain lapses have been identified within the statute that the courts and the need for a change regarding the same have highlighted. The Supreme Court has recently pointed out that many sports federations have failed to constitute the necessary internal complaint committees stated within the statute's regulations. This finding came out in association with the wrestler's protest against the head of the Wrestling Federation of India (WFI), Mr Brij Bhushan Sharan Singh, based on sexual assault allegations.

Another drawback that was highlighted happens to be that there is no specific person placed in charge of ensuring that organisations follow through with the guidelines and measures that have been laid down, as well as the lack of initiative from the government's side to find whether companies are complying to the standards of the act. Lack of awareness also poses a significant issue for female employees, and it has been recently identified that most sexual harassment victims come from the informal sector. There have also been cases where women have been wrongfully removed from their jobs due to a lack of substantial evidence, though it does not always constitute the absence of a crime[14].

Conclusion
Therefore, it is evident that sexual harassment has become a severe and recurrent threat within society, having troubled millions of women nationwide, causing them immense fear and discomfort. Regarding India's laws and statutes formulated to combat this menace, the POSH Act was one of the most prominent legislative instruments introduced. It derived its existence from the Vishakha guidelines presented in light of the landmark judgment of Vishakha Vs the state of Rajasthan. The statute lays down regulations concerning preventing sexual harassment and legal action that can be pursued in the event of such happenings.

In accordance with the measures stated within the statute, organisations and district-level government institutions are supposed to set up Complaint Committees to easily file complaints and provide any support to the victim in lodging an official complaint. These provisions were made available to reduce the number of sexual harassment incidents within our nation and to have proper legislation catered to meet the precise requirements of such cases. However, even after its implementation, the Act seems to have been criticised, with various flaws and lapses within its formulation highlighted and discussed.

A major flaw that has been identified would be the proper enforcement of the measures and provisions of the law, such as in the case of the establishment of complaint committees. Therefore, there is a need to emphasise the proper formulation of a particular statute and its proper implementation and enforcement.

A similar scenario was also identified concerning the Vishakha guidelines before implementing the POSH Act, where a writ petition was filed stating the lack of proper enforcement of the procedures laid down during the case. The court then released a judgment declaring that necessary actions would be undertaken, including appropriate monitoring of the implementation of the prescribed guidelines. Nevertheless, a similar lapse was recorded yet again with the POSH Act.

However, we cannot constitute the entirety of blame upon enforcement alone. Another major drawback recorded was the over-dependence on evidence in terms of the trial of a sexual harassment case, which may not always prove to be the best course of action, as it is often seen that the victim is penalised for filing the case in light of the absence of proper evidence. At the same time, she may have been subjected to a form of sexual harassment.

Especially in the case of sexual harassment through verbal measures, it is easy for the defendant to dismiss the victim's claims as it is often the victim's claim against that of the defendant. Hence, these are some of the significant drawbacks of this statute discussed earlier, and an immediate correction is necessary. If the Act is to undertake or fulfil the purpose it was designated for, then it is essential that proper steps be taken to remedy these lapses.

Women have been subjected to this act of social menace for decades and maybe even centuries, and it is about time that this was put to an end. In today's era, where people promote and propagate the notions of women's empowerment and independence, it is our responsibility to ensure that we do what is necessary to ensure that women can pursue their financial or career goals without being exposed to such crimes.

End Notes:

1. Nasrin Sultana, 'Rise in sexual harassment cases in India's top companies shows dichotomy (Forbes India)
2. Sai Gayatri, 'Case analysis: Vishaka & Ors. v State of Rajasthan & Ors. ((1997) 6 SCC 241) – landmark case on sexual harassment' (iPleaders)
3. Rajesh Rajeshwari, 'Case Summary: Vishaka & Ors v. State of Rajasthan & Ors (1997) | Vishaka Guidelines | Sexual harassment of women in the workplace' (Legal Bites)
4. Here is everything you need to know about "Vishakha Guidelines (UNGENDER)
5. Vishakha Guidelines Need Rethink to Include Past Incidents of Harassment: Justice Sujata Manohar (The Wire)
6. R. Lodha, Medha Kotwal Lele & Ors vs U.O.I. & Ors on 19 October, 2012 (Indian Kanoon)
7. Diksha Munjal, Explained | What is the PoSH Act and why has the Supreme Court flagged lapses in its implementation? (The Hindu)
8. Abishek Bansal, Emergence Of The Posh Act & Its Features Viz-A-Viz Vishaka Guidelines' (Acumen Juris)
9. 'What is POSH' (Indian Bar Association)
10. Section 4, POSH Act (India Code)
11. POSH Act (iPleaders)
12. Convention on the Elimination of All Forms of Discrimination against Women (UN WOMEN)
13. Arunima Bose, Whether obscene language used by A Against B would amount to sexual harassment within workplace if working institution is different but appointed by the same employer i.e. Government of Chhattisgarh? (SCC Online)
14. Diksha Munjal, Explained | What is the PoSH Act and why has the Supreme Court flagged lapses in its implementation? (The Hindu)