PRAGMATIC CHALLENGES UNDER SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (Prevention, Prohibition and Redressal ) ACT, 2013

    Edited by: Vaani Garg

    Introduction

    Far gone are the days where men were the only income producers of the family. Women empowerment and globalization has brought wide-ranging change in status of women as more and more women are stepping out of their home economics and contributing to the development of world as par as men. Women workforce participation is on rise in every sector. Even, in COVID-19 pandemic, they are adopting newer methods of working like work from home (WFH), teleworking, telecommuting etc.

    While the diversification of workplace through the virtual setups is advancing the corporates to consistently continue their operations, it also presents a great challenge as the virtual interface has brought the peril of sexual harassment to the domain. So the question arises whether an act of sexual harassment committed by perpetrator virtually while a women is working from home would be covered under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“POSH ACT”) and (“POSH RULES”)?

    This question assumes greater importance in view of the large numbers of women comprising Indian’s workforce and absence of clear policy framework to address the present situation.

    POSH Act and POSH Rules:

    POSH Act and POSH Rules were ratified to protect the women from the sexual harassment at their workplace and provide a procedure for the redressal of their complaints of sexual harassment. We all know that sexual harassment at workplace makes an insecure and belligerent working environment for women which also curbs their ability to work efficiently in today’s competing world. It also affects their social and economic growth and puts them in unnecessary physical and emotional trauma.

    In the absence of a certain law addressing sexual harassment of women at workplace in India, the Supreme Court, in Vishaka v. State of Rajasthan case set a specific guidelines making it obligatory for every employer to provide the procedure to redress grievances pertaining to workplace sexual harassment and the same were followed by employers until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. In 2013, after Nirbhaya’s case, in line with amendments to Indian Penal Code 1860 introduced by the Criminal Law (Amendment) Act, 2013 (“Criminal Law Amendment Act”), acts of sexual harassment, stalking and voyeurism have also been made penal offences.

    POSH Act provides that the term “sexual harassment” includes any one or more of the following harassment acts or behavior (whether directly or by implication) :

    1. Physical contact or advances
    2. Demand or Request for sexual favour
    3. Making sexually coloured remarks
    4. Showing pornography
    5. Any other physical, verbal or nonverbal conduct of sexual nature

    Posh act further provide that “workplace” includes:

    1. any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a cooperative society.
    2. any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainment related, industrial, health services or financial activities including production, supply, sale, distribution or service
    3. Hospitals or nursing homes
    4. any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto
    5. any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey
    6. a dwelling place or house

    But the above definition of workplace did not cover harassment outside the workplace like SMS phone calls to home thus revealing women to instances of sexual harassment which would invade into the safety of a woman’s house through electronic modes. So, the definition of ‘sexual harassment’ in the NCW draft Bill, 2010 can be added at the end of sub-clause (v): “whether verbal, textual, physical, graphic or electronic or by any other actions.”

    Despite of the above recommendation the word ‘graphic’ and ‘electronic’ were not added though ‘non-verbal’ conduct was mentioned. Also in Section2 (o) (v) of POSH Act “(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey.” was added.

    In Saurabh Kumar Mallick v. the Comptroller and Auditor General of India & Anr, case the High Court of Delhi laid down the guidelines to determine the workplace as follows:

    1. Proximity from the place of work
    2. Control of management over such place/residence where women is residing
    3. Such a ‘residence’ has to be an extension or contiguous part of working place.

    Also, it is concluded that the definition of workplace will depend on facts and circumstances of cases.

    Conclusion

     The POSH Act may not precisely express any reference to “virtual” workspace within the definition of “workplace” or may have omitted to use words like “graphic” or “electronic” from the definition of “sexual harassment”, it is very likely that the Courts of this country will only uphold a construction of “workplace” by interpreting provisions of Section 2(o) (v) or Section 2(o)(vi) of POSH Act. It is said that, “work from home” is the normal from post COVID-19, and several companies are following trend of WFH to replace the physical workplace and to reduce infrastructural costs, rent, expenses, etc. and also to raise productivity of employees. The increment has been observed in the cases of sexual harassment in the cyberspace or cyber workplace. The existing circumstances of COVID- 19 pandemic and the technological advancements may have paved way for the new ways of working, such as WFH, but the companies must concede that the virtual link to work has also opened new perspective of interference into the personal home space of women and their personal or family life, which in turn has the effect of intrusion into the privacy of a woman. Thus, the Companies must ensure that sufficient and adequate measures should be taken to prevent acts of sexual harassment in the virtual workspace and to prevent violation of privacy of the woman employee. The companies need to ignore such unplanned malfunction and maintain constructive and progressive outlook to ensure that women employees are not considered substandard for such reasons and no unfair treatment is given to them.