POSH Act 2013: Addressing sexual harassment at workplace for women in unorganized sector

The objective of ‘The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013’ (‘POSH Act’) is to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment. Before this act came in existence, for a period of 16 years Vishaka guidelines were in place.[1] One of the criticisms about Vishaka Guidelines was that it did not specifically address the sexual harassment faced by women in unorganized sector. After several amendments to the original bill and Justice Verma committee’s recommendations the provisions related to unorganised sector were added.[2] Section 2 (p) of the Act defines unorganized sector as an enterprise owned by individuals or self employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

Legal Framework provided

 The Act’s intention is explicitly mentioned in Section 3 (1): No woman shall be subjected to sexual harassment at any workplace. For this important terms in the discourse of sexual harassment are expanded to cover every working woman in country in Section 2 of the Act.  The Act defines “employees” in the broadest sense possible to cover women from both unorganized and organized sector.  “Employee” means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether. for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name. A broad definition of who constitutes employees have allowed a large number of workers in unauthorised sector (such as construction workers, employees working at remote places, employees at a short term contract), get access to redressal mechanism for sexual harassment.

Apart from the organised workplace, the “workplace” also includes unorganized spaces like any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service. Further, any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey will also be considered as a workplace.

A house, generally seen as a residential space is a workplace for domestic worker. To protect her from sexual harassment a dwelling place or a house is also added in the expanded purview of workplace.  The domestic worker is also defined in the Act and includes any women who is employed to do the household work in any household and technicalities like method of payment, duration of her tenure and if she has been directly employed or employed through an agent do not change her status as an employee of that household owner or the person enjoying the benefits of that domestic worker.

For an unorganised setup, the employer is any person responsible for the management, supervision and control of the workplace. For a dwelling place or a house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker, will be considered as the employer.

Every employer shall constitute the “Internal Complaints Committee” at his/her workplace for redressal of complaints of sexual harassment. In lieu of the internal complaints committee that every company is mandated to have, the district administration is supposed to set up local complaints committees (LCC) that women in organisations with less than 10 employees (unorganized sector) and domestic workers can approach. LCCs also receive complaints against the employer himself. The appropriate government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District officer for every District to exercise powers or discharge functions under this Act. The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned LCC within a period of seven days. The District officer shall monitor the timely submissions of reports furnished by LCC and take such measures as may be necessary for engaging non-governmental organizations for creation of awareness on sexual harassment and the rights of the women.

Issues related to Ground Level Implementation

Despite a clear legal framework, sexual harassment in unorganized sector such as factories is routine. According to the survey done by Sisters for Change and Munnade (a local NGO working for women garment workers in Karnataka) in 2015 to study the prevalence of sexual harassment in garment factories of Karnataka it was found that: 1 in 14 women workers has experienced physical violence; 1 in 7 women workers has been raped or forced to commit a sexual act and zero criminal charges were brought against the perpetrators.

The other findings of the survey also indicated that these garment workers have little knowledge about these laws regarding sexual harassment or their rights under it .Thus they are at a loss due to their low literacy and employer’s lack of initiative to assist them either. Their vulnerability is increased due to caste and class bias also playing in the background. Majority of these workers have migrated from villages and belong to the scheduled castes or scheduled tribes.

In a case of 2017, Madras High Court heard a Public Interest Litigation filed by R Karuppusamy of Erode district, praying for a direction to the district administration to ensure constitution and functioning of internal complaint committees in all mills, factories, etc.[3]  It was pointed out by the petitioner with the help of information he got through Right to Information (hereinafter referred as RTI) that women were helpless in these establishments because there was no ICC as mandated by the law.  Further, for street workers or daily wage labourers there was no LCC to register their complaint. There is no job security in the unorganized sector. Thus the aggrieved women have a choice to either endure continuous sexual harassment or leave their jobs.

Three major factors important for ground level implementation of this Act in unorganized sector can be thus pointed out:

• Constitution of LCCs: Due to a loose organizational structure; most workplaces in unorganized sector do not have ICCs set up. Thus, the only grievance redressal mechanism left to aggrieved women in unorganized sector is LCCs. In absence of LCCs available to women at grass root level to make complaints; they are forced to suffer sexual harassment silently.
• Appointment of Nodal officers: The Nodal officer acts as a medium to receive complaints and forward the same to the concerned LCCs. It is not possible to effectively implement the provisions of the Act unless the nodal officers are appointed in each district consisting of blocks, talukas, tehsils in rural or tribal areas and ward or municipality in the urban areas.
• Awareness about POSH Act and redressal mechanisms: Preventive measures taken by employers are important to avoid occurrence of Sexual Harassment cases in first place. In organized sector, due to a defined employer and employee relationship and a proper organizational structure, accountability of the employer can be ascertained. On the contrary, in unorganized sector, due to its loose organizational structure, ascertaining the accountability of employer is not possible. Therefore, under the Act it is the duty of the District Officer to engage NGOs for creating awareness among the workforce about sexual harassment and rights of the women. Knowledge about redressal mechanism empowers women in unorganized sector to deal with sexual harassment in an informed and effective manner.

A writ petition has been filed in 2018 by Initiatives for Inclusion Foundation and Anr. seeking Supreme Court’s intervention in ensuring effective implementation of the Act .[4] The NGO filed several RTI applications to check the status of implementation of the Act. Only 5 states – Madhya Pradesh, Karnataka, Kerala, Chhattisgarh, Haryana; and 2 Union Territories – Dadra and Nagar Haweli and Daman and Diu – provided complete details of LCCs constituted in their respective states. Further, only 12 states and 4 Union Territories gave details of the appointment of District officer in their respective states. There is no data available on the appointment of nodal officers. None of the State Governments could provide information on measures taken to publicize and create awareness of the Act.

POSH Act, 2013 intends to protect the women in unorganized sector from sexual harassment but due to a lack of actual preventive and prohibitive measures as evident from the data collected, the Act has not been yet implemented in its substance and spirit. For the successful implementation of the Act, the constitution of LCCs in every district, their proper functioning in appointment of District officers and Nodal officers and the awareness creation about the Act is essential. Further, the Act also needs to be restructured in a way that implementation of the Act at ground level in unorganized sector is practically possible.

[1] Vishaka v State of Rajasthan and others, (1997) 6 SCC 241

[2] Report of the Committee on Amendments to Criminal Law, 2013

[3] R Karuppusamy v The State of Tamil Nadu and others, 2017.

[4] Initiatives for Inclusion Foundation and Anr. v. Union of India and Ors. , W.P. No. 1224 of 2017

Author: This post has been submitted by Prerna Seerwani, as part of her assignment with Ungender Insights. Prerna Seerwani is currently a student of NALSAR University of Law, Hyderabad.