The Sexual Harassment of Women at Workplace Act kicked in on 9 December 2013, but too late for countless women.
New Delhi: If there’s anything #MeToo has shown us, it is that countless Indian women, for years, had no law to fight sexual harassment at the workplace.
But that changed five years ago, as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, also known as the POSH Act, kicked in on 9 December 2013.
Drawing from the Vishaka Guidelines, the POSH Act outlaws unwanted sexual behaviour and contact — from relentless flirtation to assault – and suggests punishment for offenders as well as those who file false complaints.
The law stems from the Supreme Court’s landmark 1997 judgment laying down the Vishaka guidelines against sexual harassment, which in turn can trace their origin to the rape of social worker Bhanwari Devi five years before.
Also read: Pursuing #MeToo cases legally faces a big hurdle – the law
How it began
Bhanwari Devi, a Dalit woman from Rajasthan’s Bhateri village, was an employee engaged in the state government’s Women’s Development Programme. As part of her job, she would go door-to-door to campaign against child marriage and spread awareness about family planning methods and discourage practices like dowry and female foeticide.
In 1992, when she found out that a nine-month-old girl, a member of the upper-caste Gujjar community, was to be wed, her superiors forced her to intervene, despite her warning of a possible backlash.
“I told the officials that these people were dangerous and that they would come after me,” she told BBC in an interview, “But they said we had to stop all child marriages and a policeman was sent to stop the wedding. But he came, ate wedding sweets, and left.”
She was right. The Gujjar family, enraged that a lower-caste woman was meddling in their affairs, decided to punish her.
Five men from the family subsequently approached her in the fields one day as she worked with her husband, whom they beat up with sticks. Two men then pinned him down as the other three took turns raping Bhanwari Devi.
Bhanwari Devi’s refusal to stay silent set the stage for the formulation of the Vishaka guidelines, which define sexual harassment as any of the following:
- a) Physical contact and advances
b) A demand or request for sexual favours
c) Sexually coloured remarks
d) Showing pornography
e) Any other unwelcome physical verbal or non-verbal conduct of sexual nature.
How the Act came to be
After the Supreme Court laid down the guidelines, the National Commission for Women submitted drafts of a Code of Conduct for the Workplace in 2000, 2003, 2004, 2006 and 2010.
The Protection of Women against Sexual Harassment at Workplace Bill was introduced by the then women and child development minister Krishna Tirath in 2007. An evolved and amended version of this was then passed by the Lok Sabha in September 2012 after being approved by the Union cabinet in 2010. In February 2013, it was passed by the Rajya Sabha, with the President signing it into law on April 2013. It finally came into effect that December.
Also read: #MeToo is necessary but not the final answer, says judge behind Vishakha Guidelines
Unlike the Vishaka guidelines, the POSH Act defines the workplace as any place visited by the employee during the course of employment, including transport provided by the employer for the purpose of commuting to and from the place of employment.
It also expands the definition of “aggrieved woman” to include all women, irrespective of age and employment status, as well as domestic workers.
The Act penalises employers who don’t follow the provisions, and their licence may be cancelled for repeat violations. It orders the formation of district-wise complaints committees for such cases that have been given the powers of a civil court to gather evidence.
Now what?
The Act still doesn’t change the fact that several women are reluctant to report sexual harassment. It has also been criticised for being far removed from the kind of women who inspired it, like Bhanwari Devi, whose rapists continue to walk free.
Movements like #MeToo have also exposed large cracks in the Act: For one, for the several women calling out their harassers years after the abuse, POSH is of no use as it is not retrospective.
But what is certain is that #MeToo is keeping the conversation alive, and it’s only a matter of time till it sinks into our legislation.
Thank you for the great article….kindly let me know who I can contact in writing from The Print to share the details of my sexual harassment at the workplace in Ernst & Young in India. I filed an appeal against Ernst & Young’s and the accused Senior Partner in the Industrial Tribunal court in September 2018. The appeal has been filed and the court has directed issuance of notice to both Ernst & Young and the accused Senior Partner. Thanks – Ana Raquel Villanueva