Acting on India’s POSH Act
Commentary, 21 March 2019
By Anita Cheria, Director, OpenSpace
Workplace Sexual Harassment Law Needs Effective Implementation
For more than a year, India has been stunned by women journalists, students, actors, and other women professionals throughout the country who have gone public with accounts of sexual harassment they have experienced at the hands of colleagues, supervisors, and other men in prominent positions. This has started a long overdue conversation about the experiences of women in the workplace. The global Me Too campaign in combination with Indian media women talking about their own experiences of sexual harassment has helped in drawing public attention to women survivors and scrutiny to the implementation of the POSH Act. Women who work on the factory floor, as well as women who work in agriculture have long complained of sexual harassment. Some individuals and networks have expressed solidarity with the women in professional and executive positions now speaking out.
One major contribution of the POSH Act has been in defining sexual harassment as a crime.
The POSH Act
In India, the legislation that addresses sexual harassment at work is the Sexual Harassment Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, known as the POSH Act. It drew from the pre-existing “Vishakha Guidelines” issued by the Supreme Court in 1997. The Bill was introduced in 2007, tabled in Parliament in 2010 and passed by the lower house in September 2012. The long process gained momentum in the aftermath of the December 2012 rape of a young student in Delhi that led to mobilisation both in the streets and in the setting up of the Justice Verma Committee. It was passed by the upper house in February 2013 and given presidential assent in April 2013. It took two brutal gang rapes - one 1992 and other in 2012 - to get our act together as a nation.
The POSH Act defines sexual harassment and includes complaints mechanisms. It requires that an Internal Committee (IC) be set up within every establishment that has 10 or more workers to examine and investigate matters within the workplace. The sections deal with the committee’s formation, the appointment of its members, their duties, and the committee’s process and procedures.
With respect to State duties, the Act mandates that every district must have a Local Committee (LC) to deal with complaints in establishments with less than ten workers or against employers individually. The LCs are mandated to take up cases involving informal workers, and to function as the contact point for reporting and monitoring. The LC is comprised of a woman as chairperson who has experience in social work, a woman who is working in the local government, two persons from NGOs, at least one of whom should be a woman. The officer in the district dealing with social welfare or women and child development in the district, regardless of their gender is an ex officio member. Of these members, at least one must belong to a scheduled caste, a scheduled tribe or a minority community notified by the government (scheduled castes and scheduled tribes are socially-disadvantaged groups recognised by the Constitution of India and protected by various laws).
One major contribution of the POSH Act has been in defining sexual harassment as a crime, as well as detailing its various forms – physical and emotional, implicit and explicit actions, and defining the entire spectrum of sexual harassment as ‘unwelcome’. Another positive aspect of the Act in the Indian context is that compliance, such as constituting committees and ensuring publicity, has to be demonstrated by business establishments. These make visible an all-pervasive behaviour that Indian society has for too long pretended does not exist. Consequently, it has made it possible to break the silence on sexual harassment and opened conversations on sexual harassment at the workplace among management and workers.
It is often difficult for a woman to prove her case. The threat of a penalty if she fails to provide sufficient evidence will be yet another deterrent to reporting abuses.
However, the line of responsibility with respect to government departments is not clearly spelt out. For instance, which department (Women and Child Welfare, Police, Labour, Social Justice or the Women’s Commission) is in charge and to whom should district officers submit annual reports? These are not clearly defined in the law, nor has a pattern of cooperation between duty bearers been mapped. Another challenge involves the fact that it is often difficult for a woman to prove her case. The threat of a penalty if she fails to provide sufficient evidence will be yet another deterrent to reporting abuses.
While the law covers several categories of workers, in practice both the nature of sexual harassment and the access to remedies and justice differs depending on the often intertwined position of the woman worker, her work space, the establishment, her status within it, her wages/salary, and her social support system.
For women from the working class, registering a complaint is perceived to be a risk and often actually is.
For women from the working class, registering a complaint is perceived to be a risk and often actually is. Many women can’t afford to take the risk, aggravated by power imbalance due to low pay, precarious employment due to contractual or non-formal employment status, being the sole family breadwinner, having low family support, and lack of worker organisations and unions.
In many sectors, women are not in managerial positions. In such cases the women who complain are seen as adversaries who disturb business operations, including the pace of production, and are disliked by the management because they have questioned the line of authority. In most cases factory workers find that resigning from one organisation and joining another is their most feasible option, as their ability to take risks is low. Migrant workers are even more vulnerable, as they find these options difficult to exercise.
To enable working women to benefit from the law, it is important first to recognise the impediments to their agency in engaging with grievance mechanisms. More efforts are needed to increase their capacity to raise complaints. Necessary measures include paying a living wage to all workers, especially in industries with a large women workforce, is a critical step. For such workers, complaining about harassment could mean adverse response from management, and the loss of job or wages could mean denial of basic needs. Without a living wage, they are unable to have any savings or financial security that would allow them to take any steps that would put their jobs at risk.
Support from co-workers and senior management is key to build confidence among workers to register complaints.
Support from co-workers and senior management is key to build confidence among workers to register complaints. Senior management can play a decisive role by promoting a conducive atmosphere. Top management should set standards for supervisors on factory floors and in middle management. They should be at the forefront of efforts to stop practices of gender-based violence and to demonstrate zero tolerance for sexual harassment.
When the State Fails in its Duty
The failure to pinpoint the ultimate responsibility of implementation and monitoring on a particular government department impedes the ability to take any action.
Public interest and involvement in drafting the bill dissipated considerably when it came to the implementation of the Act. As public scrutiny waned over time, the government managed to shift attention regarding implementation of the Act to the private sector. In debates surrounding flaws in the implementation of this Act, companies and establishments face criticism, and rightly so. But the role of the government is almost never discussed or highlighted due to the lack of awareness among the pubic on the details of the Act. There are several key responsibilities of implementation and monitoring that come under the mandate of the ‘appropriate government’, which may be the State or Central government according to the workplace in question. However, the Act has not identified any particular department or departments specifically for these duties and this ambiguity in the line of responsibility has been a significant impediment to the implementation. The failure to pinpoint the ultimate responsibility of implementation and monitoring on a particular government department or official impedes the ability of even concerned and well informed citizens to take any action or lobby. Even the government officials are not clear on who should take the lead.
With 75% to 95% of workers in India employed in establishments with less than ten workers, the constitution and functioning of the Local Committees are critical for the success of this Act. In August 2018, a civil society organisation had to get court orders to force the government to constitute Local Committees in Tamil Nadu. In Karnataka it was done a year earlier, after repeated requests under the Right to Information Act asking for details were posted to the state Women’s Commission. Experience shows that in many of the Indian states where the local committees have been formed, they are inaccessible and rarely publicised, though they are key to the implementation of the POSH Act.
It is imperative that the government define the chain of responsibility.
The implementation of the Act is not the sole responsibility of the private sector. The state cannot abdicate its responsibilities as the majority of the workforce in India are not in establishments that are mandated to have ICs but would be directly under the purview of the LCs, which are solely the responsibility of the government. Thus it is even more imperative that the government define the chain of responsibility. While the Women’s Commission has taken the lead, the Labour Department, the Ministry of Women and Child Development and the State Legal Services Authority and the police need to focus their efforts and coordinate their actions.
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