Sexual harassment at the workplace is not just a breach of workplace ethics—it is a criminal offense under Indian law. The implications of workplace harassment extend beyond organizational misconduct, often crossing into the realm of criminal liabilities. For HR professionals, legal advisors, and business leaders, understanding the intricate interplay between workplace policies and criminal law is crucial.
This article delves deeply into the intersection of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) and criminal liabilities under the Bharatiya Nyaya Sanhita, 2023 (BNS). By exploring employer responsibilities, actionable strategies, and the nuances of criminal law, we aim to equip organizations with the tools to foster safer work environments.
The POSH Act: A Pillar of Workplace Safety
The POSH Act was enacted to ensure that workplaces are free of sexual harassment, enabling women to work with dignity and security. It is designed to prevent harassment, prohibit unacceptable behaviour, and provide mechanisms for addressing complaints effectively.
Key Features of the POSH Act:
- Broad Definition of Sexual Harassment: The Act encompasses a wide range of behaviours, including unwelcome physical contact, advances, sexually charged comments, showing pornography, or any other unwelcome sexual conduct.
- Internal Complaints Committee (ICC): Employers must establish an ICC to address grievances.
- Employer Accountability: Organizations are obligated to create a workplace culture that actively prevents harassment.
- Redressal Mechanism: The Act provides civil remedies for victims, including recommendations for monetary compensation, disciplinary action, and workplace modifications.
Industries and Sectors Covered by the POSH Act:
The POSH Act applies to a broad range of industries and sectors, ensuring protection for women in both organized and unorganized sectors. It covers government offices, private companies, NGOs, educational institutions, healthcare, and hospitality sectors. The Act extends to informal sectors such as domestic work, agriculture, and construction, requiring employers to create safe environments for women in these industries. The Act also includes co-working spaces and freelance workers, ensuring protection across all professional environments, reflecting its commitment to safeguarding women’s rights and promoting workplace equality across diverse sectors.
Obligations for Workplaces Based on Size
Under the POSH Act, workplaces with 10 or more employees must form an Internal Complaints Committee (ICC) to address sexual harassment complaints. This committee must be composed of a presiding officer, employee representatives, and an external member. Employers are also required to implement a POSH policy, conduct awareness programs, ensure confidentiality, and submit an annual report to the District Officer. For workplaces with fewer than 10 employees, complaints are directed to the Local Committee (LC). The Act ensures that all workplaces, regardless of size, provide a mechanism to address and prevent sexual harassment, fostering a safe work environment.
Criminal Liabilities: When POSH Intersects with BNS
The POSH Act recognises that some instances of workplace harassment qualify as criminal offences under the BNS. In such cases, both the POSH mechanism and criminal proceedings can operate simultaneously.
Criminal Offenses Related to Sexual Harassment:
- Section 75 (Sexual Harassment): Covers physical contact, explicit sexual overtures, demands for sexual favours, and showing pornography. Imprisonment which may extend to three years, or with fine, or with both.
- Section 79 (Outraging Modesty): Penalizes words, gestures, or acts intended to insult a woman’s modesty, with imprisonment which may extend to three years.
- Section 78 (Stalking): Includes physical stalking as well as cyberstalking, punishable with imprisonment which may extend to three years on first conviction and may extend to five years on second conviction.
- Section 63 and 64 (Rape and Punishment for Rape): In extreme cases, workplace harassment may escalate to assault or rape, attracting severe punishments such as imprisonment which shall not be less than ten years, but which may extend to imprisonment for life.
Role of Employers in Criminal Proceedings:
- The ICC must inform complainants of their right to file criminal complaints.
- In cases involving criminal offences, the ICC can recommend that the organization assist the victim in pursuing legal action.
- Employers should cooperate with law enforcement agencies during investigations.
Employer Responsibilities Under the POSH Act:
The POSH Act imposes extensive responsibilities on employers to create a safe working environment. Failure to comply can result in monetary penalties, reputational damage, and legal liabilities.
Key Employer Obligations:
- Policy Formulation:
- Draft and implement an anti-sexual harassment policy.
- Display the policy prominently in the workplace.
- Constitution of ICC:
- Constitute an ICC with at least four members, including a presiding officer (a senior woman employee), two employees, and an external member from an NGO or legal background.
- Ensure the ICC is gender-balanced and trained to handle complaints sensitively and objectively.
- Training and Awareness:
- Conduct regular workshops and sensitization programs for employees.
- Provide specialized training for ICC members on legal and procedural aspects.
- Annual Reporting:
- Submit annual reports to the District Officer detailing complaints received and actions taken.
- Support Mechanisms:
- Offer counselling and support to victims.
- Take interim measures, such as transferring the respondent or granting leave to the complainant, to ensure safety.
Navigating Challenges: Insights for HR and Legal Teams
Handling sexual harassment complaints requires a delicate balance of sensitivity, confidentiality, and legal compliance. Here are actionable insights for HR professionals and legal advisors:
- Proactive Risk Assessment:
- Conduct workplace audits to identify potential vulnerabilities.
- Use anonymous employee surveys to gauge workplace culture and identify areas of concern.
- Strengthening Policy Implementation:
- Align internal policies with both the POSH Act and criminal laws.
- Ensure policies explicitly address harassment in both physical and virtual workspaces, including online communications.
- Empowering the ICC:
- Provide ICC members with training on handling complaints with empathy and impartiality.
- Ensure the ICC is equipped to identify criminal elements in complaints and recommend legal recourse when necessary.
- Collaboration with Legal Counsel:
- Engage experienced legal advisors to navigate complex cases.
- Regularly review workplace policies to ensure compliance with evolving laws.
- Balancing Confidentiality and Justice:
- Protect the identities of complainants and respondents to maintain confidentiality.
- Ensure a fair and unbiased inquiry process that respects all parties’ rights.
The Cost of Non-Compliance:
Failure to adhere to the POSH Act and related criminal laws can have severe consequences for organizations:
- Legal Penalties: Non-compliance with the POSH Act can result in fines of up to ₹50,000 for the first offence and higher penalties for repeated offences.
- Reputational Damage: Cases of workplace harassment can tarnish an organization’s image, impacting employee morale and brand perception.
- Employee Attrition: A toxic workplace culture can lead to high turnover and difficulty attracting talent.
A Call to Action:
Addressing sexual harassment is not just about compliance—it’s about fostering a culture of respect, trust, and safety. By understanding the nuances of the POSH Act and criminal law, employers can take meaningful steps to create harassment-free workplaces.
What Organizations Can Do Today:
- Revisit workplace policies and align them with the POSH Act and BNS provisions.
- Conduct training sessions to build awareness and empower employees.
- Establish clear channels for reporting and addressing complaints.
- Collaborate with legal experts to ensure robust compliance frameworks.
Together, let’s make workplaces safer, equitable, and more inclusive for everyone. It’s not just about following the law; it’s about doing what’s right.
How is your organization ensuring compliance with the POSH Act? What challenges have you faced in implementing anti-harassment policies? Reach out for tailored legal advisory services. Let’s build a future where every workplace prioritizes safety and dignity.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. The content may not reflect the most current legal developments and is not guaranteed to be accurate, complete, or up-to-date. Readers should consult a qualified legal professional before taking any action based on the information provided. The authors and publishers disclaim any liability for any loss or damage incurred as a result of reliance on this article. This article does not create an attorney-client relationship.