–By Vidhik Kumar
Introduction
The status of women in our society can only be uplifted when we as a community tread towards the path of social justice, equality, and dignity- and provide women, without any discrimination, equal opportunities in every sphere of life. India has adopted several legislations for uplifting women in the social sphere, and one such legislation was “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” [“POSH”], which was an attempt to protect women from sexual harassment at workplaces and allow them to work with dignity. Although ‘POSH’ has significantly improved the conditions for women in the working sector, the author believes that it is infected with plenty of shortcomings, which ultimately defeat the purpose of the enactment. The author believes that it is just another typical Indian legislation, waiting to be improved only after some unprecedented incident has surfaced. This note, henceforth, firstly by establishing that ‘POSH’ has been under-deliberated by the legislature, will enumerate how the ‘sexual act’ paradigm adopted by the legislature has limited the scope of POSH. The article will outline the shortcomings of POSH and discuss how it would appear as though enough deliberations were undertaken by the legislature and that the suggestions made by the (Retd.) Justice Verma Committee were adopted.
The Under-Deliberation
The need for legislation to protect women at workplaces surfaced for the first time in 1997, before the Supreme Court in Vishakha v. State of Rajasthan [“Vishakha”], wherein a woman belonging to a lower caste was gang-raped by the members of the high caste. The victim was employed in the rural development scheme of the Government of Rajasthan, and her rape was an aftermath of her attempts to stop the child marriage of a nine-month-old girl belonging to the accused’s family. As a result, in order to fill the lacuna, the Supreme Court laid down some guidelines to protect women at workplace(s) from harassment till the legislature came up with a concrete legislation. The Supreme Court relied upon International Conventions such as the Convention on Elimination of All Forms of Discrimination against Women to frame guidelines to promote gender equality and the right to work with dignity.
It was only 15 years after Vishakha that the legislature came up with POSH in 2013, which the author argues was not deliberated enough. It becomes pertinent to observe that the POSH was overshadowed by the Vishakha judgment, as not only the definition of ‘sexual harassment’ laid down by the Court in Vishakha was reproduced in POSH but also other guidelines were similarly reiterated. The deliberation which the legislature did not undertake is apparent as no improvisation was done, and the scheme adopted by the Court was completely adhered to and reiterated. If POSH was just to replace the already existent guidelines laid down by the Court in Vishakha, why was there a need for a concrete efficient enactment by the legislature? The result of which is that POSH is just a mirror reflection of the already in force Vishakha guidelines.
The argument that the legislature did not undertake many deliberations, and did not want to adopt an approach different from that of the Court is further strengthened by the fact that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Re-dressal) Bill, 2012 [“Bill’] was passed in the Lok Sabha without any sort of debate. Furthermore, it is pertinent to observe that the legislature did not adopt the changes suggested by the Justice Verma Committee [“Committee”] while the Bill was still pending in the Rajya Sabha. The Committee was formed as an aftermath of the incident that occurred in the capital in 2012, and this was in clear contrast to the approach of the legislature which without much reluctance adopted the recommendations made by the Verma Committee for the Rape Laws.
The Committee suggested: that Section 10 which provides an opportunity for conciliation between the victim and the accused should be omitted as it further undermines the dignity of a woman; that Section 14 which prescribes a punishment upon a woman for filing a fraudulent complaint should also be omitted as it might nullify the object the act seeks to achieve, and lastly that an ‘Employment Tribunal’ must be established instead of adopting the ‘Internal Complaint Committee’. The Committee believed that a quasi-judicial domestic committee will not be able to fulfill the object of the enactment effectively. However, none of the suggestions of the Committee (especially of establishing an Employment Tribunal) were debated or adopted in the parliament. Had the suggestions of the Committee been incorporated, the POSH would have not been argued by various stakeholders to be under-deliberated.
The Sexual Paradigm
In Vishakha, the object for which the Supreme Court framed guidelines was to ensure social justice, gender equality and provide a right to work with dignity to women, however, POSH has sexualized sexual harassment. POSH has limited the scope of harassment at workplaces to acts of only “sexual” nature, for e.g. physical advances, showing pornography, etc. Several incidents of harassment happen at workplaces that cannot at all be brought under the “sexual” act ambit. Margaret Thornton argues that such acts are not motivated by ‘sexual desires’, but are aftermaths of hatred that men experience when a woman tries to take up a job that has for centuries only been undertaken by men. She argues that such acts can be scrutinized better under the ‘sexual- discrimination’ lens instead of as ‘sexual harassment’.
Similarly, L. Camille Hebert argues that the legal system can function better if harassment at workplaces is scrutinized with a ‘dignity’ paradigm, that is the loss or harm an action causes to the dignity of an individual. He argues this would enable legal systems to prosecute a vast variety of workplace harassments, such as heterosexual harassments, same-sex harassments, harassments of gays or lesbians, cyberbullying, moral harassments, etc.
Using both the ‘discrimination’ and ‘dignity’ paradigm simultaneously would have enabled the authorities to prosecute a large number of workplace harassments. However, POSH has a restricted field of operation. The ‘sexual harassment’ paradigm is narrower than the ‘sex-based discrimination’ paradigm- which is narrower than the ‘dignity’ paradigm. It becomes pertinent to observe that POSH refers to both ‘equality’ and ‘dignity’, as well as the ‘Convention on Elimination of all forms of Discrimination Against Women’ in its preamble, however still has limited the scope of harassment at workplaces to sexual acts only. The legislature not only ignored the abovementioned object for which the Supreme Court framed Vishakha guidelines but other post-Vishakha pronouncements also. The Vishakha judgment was reiterated by the Supreme Court in Apparel Export Promotion Council v. A.K. Chopra, wherein it widened the sexual harassment definition and held that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.” Furthermore, in Medha Kotwal Lele & Ors. v. Union of India & Ors., the Supreme Court held that “the implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect”. Had the legislature wanted to enact POSH in line with the approach of the Supreme Court, it should have considered the paradigms mentioned by the court in Vishakha and reiterated in other pronouncements. However, neither of the above-discussed paradigms were taken into consideration by the legislature while enacting POSH.
Conclusion
Deliberations are important for enacting a well-structured and drafted legislation, they enable the legislature to correct the lacuna existing in an enactment before-hand. However, not much deliberation was undertaken by the legislature while enacting POSH, due to which a lot of shortcomings in POSH were left uncorrected. These shortcomings include, for instance, that it does not specify as to what evidence must be considered during an inquiry, which becomes very essential as generally sexual harassment incidents do not occur when many people are around but happen in secluded atmospheres. Also, it can only be invoked in cases of sexual harassment, and therefore incidents of harassment which do not arise out of sexual desires can be dismissed as being out of the ambit of the enactment. Furthermore, POSH is silent about whether foreign nationals can also be members of the Internal Complaint Committee, or whether they will be bound by the decisions taken by the Internal Committee, this aspect also remains crucial to be determined since a lot of corporations are multinational. If the legislature had deliberated upon or had adopted the suggestions of the Committee or had encompassed dignity and discrimination paradigm, POSH could have served its purpose better.
[The author is a 4th Year, B.A. LLB (Criminal Law Hons.) student at National University of Study and Research in Law, Ranchi]