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SEXUAL HARRASMENT VIS-A-VIS WORK FROM HOME: ANALYSING THE VOID IN THE POSH ACT
This article has been authored by Prachi Dubey, a student at Arya Mahila PG College, Lucknow.
This article is one of the winning entries of National Online Article Writing Competition organized by Lucknow University.
Introduction
Sexual harassment, a gross violation of the human right to dignity, is mostly found to be against women due to perception created by society, also encouraged by patriarchy that men are superior to women and some form of violence to them acceptable[i]. Sexual harassment at workplace is one of the common forms which is overlooked by terming it as ‘harmless flirtation’ that women enjoy.
Contrary to the perception, sexual harassment at workplace causes severe physical and mental trauma. Also, it curtails right to work and equality provided in Constitution of India under Articles 14, 15, and 21.
This ‘work from home’ (WFH) is not standard prActice in our country which had occurred due to COVID19 and the Act for prevention of sexual harassment POSH 2013 is not capable enough to handle sexual harassment prevention online through any safeguard victims from online harassment just like it does in physical workplace[ii].
Functioning of the Act
POSH Act defines terms like ‘sexual harassment’, ‘workplace’, ‘dwelling place or house’, ‘employer and employee’, ‘aggrieved women’ etc. If the women face sexual harassment as per what is defined in the Act, she has right to file a written complaint against perpetrator to the internal complaint committee present within the institution itself. These people in committee to be selected by employer who will inquire and prepare report, this report will be submitted to employer who is liable to take Action based on the report filled by internal complaint committee.
The Act also provides 90 days’ time period to dispose of the complaints made to the committee, this makes it a good substitute to the criminal courts which often take too much time to conclude the litigation process against sexual harassment provided under section 354A of Indian Penal Code or under any other suitable provision.
Deliberation of POSH Act
To understand how effective this Act is, we need to look into definition of ‘workplace’ according to section 2(o)(v) of the POSH Act, this ‘workplace’ is widened not only to any ‘certified office’ rather it includes any place visited by employee during duration of employment, this even includes the transport provided by employer.
For people working as domestic help, residential quarters are considered as workplace given under section 2(o)(vi), but this is particularly for person who are working as domestic help. This provision is not helpful enough to explicitly include sexual harassment in ‘work from home’ situation.
As workplace definition within the Act creates ambiguity of language that leads to lack of knowledge to deal with sexual harassment in work from home situation. Several women have reported this confusion as to whether or not they should register online complaint of online sexual harassment under POSH Act. This ambiguity exists even when Delhi High Court considered case of Jahid Ali vs. Union of India[iii], sexually inappropriate message through medium of SMS (short message service) within the ambit of POSH Act.
As the main functioning unit of POSH Act is the Internal Complaint Committee who addresses the grievance of victims before onset of COVID 19, but we find this committee not efficient enough to work in lockdown. Further it was speculated that time period of 90 days for disposal of cases, provided under POSH Act is difficult to maintain also, it might require upto period of 6 months for committee to dispose of cases.
The decision of internal complaint committee to conduct case hearing through video conferencing call can be very uncomfortable for women as they are in informal setting, surrounded by family. Reporting sexual harassment complaint already takes a lot of courage to file case as there is lot of social stigma attached to victim in such instances.
The outbreak of pandemic and beginning of ‘work from home’ has made work timing redundant. Employees are forced to work at unreasonable hours, late into night. Under facade of work-related conversation, male employees often harass female employees. Such acts are not explicitly monitored by POSH Act.
In 2017 Ministry of Women and Child Development with aim to reduce sexual harassment is the country came with initiative sexual harassment electronic box ‘SHe Box’ it is online complaint portal for women facing issue of sexual harassment at workplace. Women not satisfied with the working of internal complaint committee found it easier to report such cases. But one problem with this initiative is the absence of explicit provision to submit the complaint in work from home situations[iv].
Cyber protection law under POSH Act
There are various cases of online sexual harassment which have been registered during COVID 19. As mentioned above POSH Act ambiguity leads on application in present circumstance. But in Indian Technology Act 2000 (IT Act), which protect people from cyber-crime, has a provision under Section 67 of Act that suggest measures against transmitting or publishing obscene content on electronic media, but again its ambit is also limited. As sexual harassment can take place in various forms that might not even require electronic media, under section 67 of IT Act obscene is defined in a limited sense as it include only materials which contain ‘lascivious or appeals to the prurient interested or if its effect is such as it tend to deprave and corrupt persons’ this definition do not include circumstances such as calling or texting at odd hours under name of work, wearing inappropriate clothes during meetings, or unnecessarily badgering coworkers which all constitute sexual harassment cannot be covered by IT Act.
Indian Penal Code 1860 also has some provision like section 354A, 354D, or 509 where online harassment can be addressed. But there is significant lack of awareness on provision present in the IT Act or the IPC.
In this time of pandemic where emergency like situation is present in the country, it is unreasonable to expect sexually harassed to visit court for remedy which might take years to come to decision So her protection provided under IPC is more difficult for victim to avail as compared to protocol of reporting under POSH Act.
In the case of Apparel Export Promotion Council vs. A.K Chopra[v] the Act of sexual harassment was defined in not limited sense of unwanted advances or conduct of sexual nature, but this includes also any type of sex discrimination that affects employment of women employees, if it affects or interferes with their work performances.
Delhi High Court in case of Dr. Punita K Sodhi vs. Union[vi] of India defines sex discrimination and concludes situation involving use of foul language and competence of person only because of certain gender is sex discrimination. Also, court asked internal complaint committee also to broaden the definition of sex discrimination when looking forward for case of sexual harassment.
Way forward
POSH Act 2013 seems ambiguous in pandemic conditions as mentioned above; definition of ‘workplace’ and its linkage with work ‘aggrieved women’ lacks the clarity which needs to be resolved. Act needs to update it as per the present situation, rather than creating doubtful situation and leaving on court to resolve the dispute; this also can be very time taking situation.
In the case of Saurabh Kumar Mallick vs. the Comptroller and Auditor General of India & Anr and Saurashtra, Salt ManufActuring Co. vs. Bai Valu & Ors[vii], the Hon’ble Supreme Court and the Hon’ble Delhi High Court respectively emphasized on idea of extension of notion of workplace, where workplace interpretation is not limited and needs to be updated as per ongoing trend with advancement of technology.
Extension to be created for functioning of ‘SHe Box’ initiative, which has proven to be effective method of filling sexual harassment by increasing awareness regarding working women. Ministry can extend its functioning by using it as a tool to help employees cover under POSH Act. Information pertaining to the new forms of harassment, rules and protocol for virtual hearing by internal complaint committee etc. this can be dispersed through the SHe box.
The Act of sexual harassment itself has evolved to include new form during this period where it should include display of inappropriate material on screen, use of screen saver with sexual connotation, calling or messaging without any reason and many other methods.
Supreme Court in U.S Sharma vs. National Commission[viii] saw from victim’s perspective. The case when analyzing the complained Act, should consider emotional trauma suffered by victim.
A revisited code of conduct to be imposed professionally on clothing, video conferencing, to prevent colleagues from unreasonable messaging or calling etc. norms to conduct the professional etiquette should be extended to prevent such sexual harassment.
In current situation domain of sexual harassment is shifted to virtual platform, members of Internal Complaint Committee to be given training for not only virtual hearing but on cyber and IT laws to deal sexual harassment comprehensively[ix].
Sexual harassment at workplace is very sensitive issue to be solved very diligently. POSH provides safeguard against peril of sexual harassment but present laws are not fully sufficient to counter sexual harassment. The loophole needs to be addressed to undertake appropriate measures to address new work from home culture.
[i] M.Saraswathy, corona virus and sexual harassment issue (January , 09 , 2021, 07:21 PM) https://www.moneycontrol.com/news/business/economy/coronavirus-lockdown-sexual-harassment-cases-at-workplace-get-delayed-across-india-inc-5390801.html [ii] Sexual Harassment Act of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [iii] Jahid Ali vs. Union of India AIR 2014 SC 1182 [iv] Namita Bhandare, Ashwaq Masoodi ‘Gaps emerge in dealing with sexual harassment’ https://www.livemint.com/Politics/ Gaps-emerge-in-dealing-with-complaints.html (last visited on January 08, 2021) [v] Apparel Export Promotion Council vs A.K Chopra (1999) 8 SCC 572 [vi] Dr. Punita K. Sodhi vs. Union of India & Ors.(2009) 7 SCC 367. [vii] Salt ManufActuring Co. vs. Bai Valu & Ors, AIR 1958 SC 881. [viii] U.S Sharma vs. National Commission (2013) 4 SCC [ix] Anjali Varma, ‘Dealing with sexual harassment in the virtual workplace’ 24 (2020)