• The Supreme Court directed the principal secretaries of the ministry of women and child development of all states to ensure appointment of an officer in every district within four weeks to oversee effective implementation of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act.

• The POSH Act is a legislation enacted by the government of India in 2013 to address the issue of sexual harassment faced by women at the workplace.

• A bench of justices S.Ravindra Bhat and Dipankar Datta also directed the WCD ministry of every state to consider identifying a ‘nodal person’ within the department to oversee and aid in coordination as contemplated under the POSH Act.

• As it issued a slew of directions, the Supreme Court ordered the Centre and the state governments to set aside financial resources to develop educational, communication and training material for spreading awareness about the provisions of the Act.

Safe workplace is a legal right

• As enshrined in the Preamble to the Constitution, “equality of status and opportunity” must be secured for all its citizens; equality of every person under the law is guaranteed by Article 14 of the Constitution.

• A safe workplace is therefore a woman’s legal right. Indeed, the constitutional doctrine of equality and personal liberty is contained in Articles 14, 15 and 21 of the Constitution.

• These Articles ensure a person’s right to equal protection under the law, to live a life free from discrimination on any ground and to protection of life and personal liberty.

• This is further reinforced by the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which was adopted by the UN General Assembly in 1979 and which is ratified by India. Often described as an international Bill of rights for women, it calls for the equality of women and men in terms of human rights and fundamental freedoms in the political, economic, social, cultural and civil spheres. It underlines that discrimination and attacks on women’s dignity violate the principle of equality of rights.

• Not only is it an infringement of the fundamental rights of a woman, under Article 19(1)(g) of the Constitution “to practice any profession or to carry out any occupation, trade or business”; it erodes equality and puts the dignity and the physical and psychological well-being of workers at risk. This leads to poor productivity and a negative impact on lives and livelihoods.

What is sexual harassment?

• Sexual harassment is any unwelcome sexually defined behaviour that can range from misbehaviour of an irritating nature to the most serious forms such as sexual abuse and assault, including rape.

• The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013, defines sexual harassment to include any one or more of the following unwelcome acts or behaviour (whether directly or by implication):

i) Physical contact and advances.

ii) A demand or request for sexual favours.

iii) Making sexually coloured remarks.

iv) Showing pornography.

• Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

What is sexual harassment at the workplace?

• Sexual harassment at the workplace is any unwelcome sexually defined behaviour that has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, abusive or offensive working environment.

• The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act states that if the following circumstances occur or are present in relation to, or connected with any act or behaviour of sexual harassment, it may amount to sexual harassment at the workplace:

i) Implied or explicit promise of preferential treatment in her employment.

ii) Implied or explicit threat of detrimental treatment in her employment.

iii) Implied or explicit threat about her present or future employment status.

iv) Interference with her work or creating an intimidating or offensive or hostile work environment for her.

v) Humiliating treatment likely to affect her health or safety.

• Today, all workplaces in India are mandated by law to provide a safe and secure working environment free from sexual harassment for all women.

Origin of Vishaka guidelines

• In 1992, Bhanwari Devi was engaged by the Rajasthan government as a ‘sathin’ to work towards the prevention of the practice of child marriage. During the course of her work, she prevented the marriage of a one-year-old girl. Her work was met with resentment and attracted harassment from local men.

• Bhanwari Devi reported this to the local authority, but no action was taken. That omission came at a great cost - Bhanwari was gangraped by those very men. The case revealed the ever-present sexual harm to which millions of working women are exposed across the country. It also shows the extent to which that harm can escalate if nothing is done to check sexually offensive behaviour in the workplace.

• Based on the facts of the case, a PIL was filed by Vishaka and other women’s groups against the state and the Centre before the Supreme Court. It proposed that sexual harassment be recognised as a violation of women’s fundamental right to equality and that all workplaces / establishments / institutions be made accountable and responsible to uphold these rights.

• In a landmark judgment on August 13, 1997, the Supreme Court created legally binding guidelines basing it on the right to equality and dignity accorded under the Constitution as well as by the UN CEDAW.

• It placed responsibility on employers to ensure that women did not face a hostile environment, and prohibited intimidation or victimisation of those cooperating with an inquiry, including the affected complainant as well as witnesses. It directed for the establishment of redressal mechanism in the form of complaints committee, which will look into matters of sexual harassment of women at workplace. The complaints committees were mandated to be headed by a female employee, with not less than half of its members being women and provided for the involvement of a third party person / NGO expert on the issue, to prevent any undue pressure on the complainant. The guidelines extended to all kinds of employment, from paid to voluntary, across the public and private sectors.

POSH Act

• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act came into force with effect from December 9, 2013. Known as the POSH Act, it seeks to cover all women, irrespective of their age or employment status, and protect them against sexual harassment at all workplaces both in public and private sector, whether organised or unorganised.

• The Act envisages a mechanism in the form of Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). All workplaces employing 10 or more workers are mandated under the Act to constitute an ICC. 

• Complaints from workplaces employing less than 10 workers or when the complaint is against the employer will be looked into by the LCC. 

• The Act casts a responsibility on every employer to create an environment that is free from sexual harassment. Under it employers are required to organise workshops and awareness programmes at regular intervals for sensitising employees about the provision of this legislation.

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