The Supreme Court of India in Vishaka v. State of Rajasthan observed that, “equality in employment cannot be achieved if women are subjected to gender specific violence at the workplace, such as sexual harassment.’’
Before the Vishaka guidelines an aggrieved woman could only approach the court under the penal provisions of sec 354 and 509. The guideline formulated now put the onus of providing a safe working environment on the employer. The guidelines for the first time recognised sexual harassment as a human rights violation.
Thus the mechanism to formulate a committee to evaluate such complaints in state institutions was adopted. However for more than a decade these guidelines were considered the safeguard of woman rights until The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted.
What is a workplace under the Act?
According to Section 2 of the PoSH Act, ‘Workplace’ is defined as both private and government institutions. It is inclusive of any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established by the government and 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.
It is applicable to both the organised and unorganised sectors. It is inclusive of organisations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and also applies to a dwelling place or a house.
Can a company appoint a foreign national on the IC?
The Act is silent on appointing a foreign national on the IC. Due to the absence of any specific restriction to this effect, a foreign national residing in India may be permitted to be a part of an IC, provided they meet certain criteria set out in the Act.
Which under the Act can be interpreted as, the person should be presently employed at the workplace by the employer. It can also be interpreted from the lens whether the appointed person has an understanding of the social context in which sexual harassment has to be viewed and whether such employee will be sensitized to the social realities in India and able to uphold the criteria .
Is gender a criteria for appointing external members?
The Act does not specify the gender of the external member. However, he/she should be well versed and have the skill set to deal with workplace sexual harassment. Along with having a legal understanding of the implications of sexual harassment at work, the person should be fair, empathetic and well informed about handling these issues. The person should be of good repute and without any criminal history or charges of sexual offences against him/her.
It’s pertinent to understand that the Act was composed with the core principles of protecting and upholding the fundamental rights of women. Additionally, many companies are using the Act to protect employees from the LGBQ community from sexual harassment. Keeping these two factors in mind, an external member with a combination of both a legal understanding and gender sensitization is crucial to POSH implementation.
About the Author and Serein
Faakirah Junaid Rafiquee is a lawyer and content designer .She is an experienced head of operations skilled in research, policy analysis, human rights, mental health, women rights, workshop moderation and document drafting. She is a strong operations professional with a Bachelor of Law focused in women rights and policy analysis. She has facilitated and designed workshops on issues like feminism, prevention of mental health, and childhood sexual abuse. She also has developed courses, modules and programmes on the same issues. Faakirah writes on women’s and mental health issues.
The materials on this web site have been prepared by Serein Inc. for informational purposes only and are not legal advice or a substitute for legal counsel. Reader should not rely or act upon this information without seeking professional counsel.
Serein Inc is an end to end service partner for the implementation of Prevention of Sexual Harassment (POSH) legal compliance. We partner with companies on case redressal and policies to proactively build safer work cultures and sexual harassment (POSH) trainings either in person or virtually. For more details on diversity, inclusion and prevention of sexual harassment (POSH training in India and the US).
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