The Gender (Ad)Vantage: PoSH Act, 2013

Laws are often made to shield and protect the rights of an individual but then it is later used as cannon and weapons to attack and shatter the opposite side.

The growth of a society is often determined by the way it treats its most vulnerable sections; women and children are among the most vulnerable in a society like ours. In 1992, Bhanwari Devi, a dalit social worker and reformer was actively engaged to stop child marriage. Through her activism and efforts, she stopped a child marriage in an influential Gujjar family which triggered the dominant class. The Gujjars who were hell-bent on taking revenge got an opportunity and one Ramakant Gujjar along with five of his men gang-raped Banwari Devi in front of her husband in the most brutal manner. On contrary though being a victim her subsequent attempt to file a police case was met with apathy for a long time and once she succeeded in doing so, she faced further stigma and cruelty. The trial court acquitted the accused citing lack of evidence but Banwari Devi, along with a sympathizer, approached the Supreme Court by way of a writ petition which eventually led to an immensely important judgement. It struck a chord of the nation and revealed the hazards of working women facing harassment, molestation, discrimination and misbehavior at the workplace.

The landmark decision of the Hon’ble Supreme Court in Vishakha vs State of Rajasthan, 1997 laid down elaborate guidelines as "Vishakha Guidelines" to deal with the sexual harassment against women at workplaces. The ruling was delivered by a three-judge bench comprising of Chief Justice J. S. Verma, Justice Sujata V. Manohar and Justice B.N. Kripal. The Court defined sexual harassment as any physical touch or conduct, any unpleasant taunt or misbehaviour, showing of pornography and asking for any kind of sexual favours.

The Vishakha guidelines existed and operated under legislative vacuum. Seventeen years later after the pronouncement of the Vishakha Guidelines, the Parliament passed the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH). Prior to the introduction of the Prevention of Sexual Harassment, PoSH Law, there was no statutory remedy that directly addressed workplace sexual harassment except the S.354 and S.509 under Indian Penal Code, 1860 which were insufficient. The application of the Indian Penal Code can be seen in the case of Rupan Deol Bajaj vs. K.P.S. Gill, 1995 where a senior I.A.S. officer was sexually harassed by a superior officer and the recourse to the limited provisions of the IPC under S.354 and S.509 was not found sufficient by the High Court. The enactment of PoSH Act then came as a major relief to the working women who had to tolerate the harassment with no effective remedy.

The PoSH Act is now over a decade old, and it is indisputable that the law is one among the several protections available to working women in India, from being sexually harassed at workplaces. As the society advances and egalitarian efforts of an earlier welfare state bear fruit, there is now a need to examine the distinctly visible trend of the manipulation of a protective tool, either to take revenge or carve anything out which may not be achievable otherwise. The theoretical construct of the statue and the paradigmatic means through which the legislation was brought about notwithstanding, its operating effects in the Indian social-milieu sadly runs the same course as other socio-legislative statutes meant for betterment of the not-so-weaker gender. The actual working of the act is yet another example of the fact that genuine cases are not purposefully reported, and yet artful ones are craftily foisted, thereby compromising the vires of the statute, relegating the act into ridicule and demeaning the opposite gender (men) in its entirety. Men are now increasingly conscious of the fact that the Act has now become more of an instrument to settle personal scores at the workplace. One might have seen the Hollywood movie like 'Disclosure' or Bollywood movie like 'Aitraaz' where the female lead files a malicious complaint against the male lead in the company just because he rejects her sexual advances. The outcome was that the male lead was expelled from the organization though being innocent and both him and his family had to undergo mental trauma and social humiliation. In the real world, the narrative is no different, however much one may try to stay focused on the letter of the law or for the need for it.

The gender conflict as evidenced in the ring of PoSH act is an exact replica/mirror of the society. If womenfolk are increasingly finding equal opportunities of education, employment and social-mores, then it is the same educational-economic system that has also been educating the opposite gender to stay on the right side of the law. In other words, men are increasingly becoming gender sensitive/gender aware and gender conscious at workplace having behavioral shaping through education, growing up and studying in gender-equated educational systems and with the rise of double income families, the society is generally becoming conscious to the evils of sexual harassment at workplace. However, the classical viewpoint of man forever being the perpetrator on the humble damsel scores much more than what may come out from an objective analysis of the incident.

Organizational Processes, the Modern Rack

Most organizations follow the policy of suspending the alleged perpetrator until the investigation by the internal complaints committee is finished for the safety of the victim. Therefore, false sexual harassment complaints can make the situation miserable for any innocent person being implicated for such an offense. It brings mental stress, financial problems, and social humiliation for the accused until the time investigation is underway according to internal complaints committee guidelines. Being labeled as a sexual offender for no reason proves immensely hurtful and could lead to the person taking extreme steps to get away from the trouble. One such case was of that of a Senior Employee in Genpact, who in December 2018 committed suicide after a complaint was filed against him in the PoSH committee of the organization. While the sexual harassment committee was still investigating the offense, the respondent under scanner committed suicide and denied the allegations labeled against him in his suicide note.

Has the Government in the process of shielding the women made men vulnerable and overlooked, leaving them open for victimization? The Act has specifically been designed to provide protection to women, is it by its very definition men not being harassed at workplace? and if so, then why is it such a laughable topic in such a dynamic society like today? Men cannot complaint about being harassed and if they do so, it is either not taken-up seriously or not addressed properly; also, if there is a false complaint against them, they do not have an effective cover for it. There are only two sections that give some relief to the victims of a false allegation in PoSH, Section 14 and Section 18 of the PoSH Act, 2013. A mere reading of these sections is enough for any trained eye to realize that the design of the act is such that it is easy to allege, not so easy to prove and where there is mischief it is to be let go of.

S.14 addresses the issue of the false complaint by giving provisions of punishment for the complainant. In case the complaint is found to be untrue and filed with malicious intent, the internal complaints committee may act on the complainant. Also, S.18 of the PoSH Act 2013 gives the respondent the ‘right to appeal’ against the recommendations or findings of the investigating team of the internal complaints committee. These two sections act as a check to any false complaints and prevents the misuse of power granted to the internal complaints committee, but are these two sections of the PoSH deterrent enough? Does it instigate any fear in the complainant before making any false complaint against the person? Is the Indian law, too skewed in favour of the complainant and thus is inherently imbalanced for that reason? And, as Courts of law are open to re-balance the misgivings within the Act, is it the legislative intent to the effect that the wrongs will ultimately be settled in a deeply legal setup?

Hon’ble Courts have been able to notice some cases of misuse. The fact that these have been noticed by the Courts, underscores the existence of harsher realities at the ground level. In the case of Anita Suresh vs Union of India & Others, 2015 Delhi High Court. The court found the petition lacking any merit and dismissed the case. It also ordered the complainant to pay Rs. 50,000/- for filing a false complaint and granted ESI-Corporation freedom to take strict action against her. The complainant alleged that she was sexually harassed in 1996, while working as secretary to the then chief personnel officer in Nothern Railways. The Central Administrative Tribunal (CAT) had ruled in her favour, but the Delhi High Court in 2008 set aside the order, terming it "invalid". The retired senior officer of Nothern Railways landed the woman in trouble with a court directing her to pay Rs 5 lakh to him "to console the hurt victim" but later reduced the amount to Rs. 50,000/- owing to fact of her financial liabilities.

In this case Union of India vs. Reema Srinivasan Iyengar, 2019 Madras High Court: A Division Bench of M. Sathyanarayanan and R. Hemalatha, JJ., while addressing the issue of Sexual Harassment of Women at Workplace, held that, “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is intended to have an equal standing for women in the work place and to have a cordial workplace in which their dignity and self-respect are protected, it cannot be allowed to be misused by women to harass someone with an exaggerated or non-existent allegations.”

Articles 14 to 18 of the Constitution guarantee the right to equality to every citizen of India. Article 14 specifically embodies the general principles of equality before law and prohibits unreasonable discrimination between persons. The Constitution clearly states ‘person’ and not male or female. Then why the Indian laws are so gender biased? Why is it assumed that women can never be predators but only victims? If we compare our laws with the western world who are more progressive and gender neutral and whose jurisdictions often provide us with the legislative template to enact our own laws in the matter, we may note that, unlike in India, in U.S. the law of sexual harassment is not gender biased and the victim as well as the harasser may be a woman or a man and does not have to be a female specifically.

The Way Ahead

To restore the imbalances in the PoSH Act, 2013 the need for insertion of additional provisions is the necessity of the present day and age in which females are equally open, progressive, vocal and authoritative. As in the Indian scenario when litigations take so much time, the Act itself should have detailed provisions to prevent its misuse? There are few of many aspects which must be investigated and addressed. One may remember the case of Jasleen Kaur vs. Sarvrjeet Singh, 2015 over a trivial matter where she posted Sarvjeet picture on social media as a harasser which he denied. Whole of India stood up in support of Jasleen and brought lot of media attention. Indian media even convicted Singh and labelled him as a "National Pervert" and "Delhi ka Darinda" (Delhi's predator). A few days after the incident, an eyewitness vouched for Singh's innocence which brought credibility to Singh's account and same Indian media was later apologetic about it. But meanwhile Sarvjeet character and career assassination was well executed. Four years later in 2019 the Indian court acquitted Sarvjeet and held him innocent. Such incidents require some suggested changes that the policy makers and our Constitutional courts need to look into, which includes but not limited to:-

• The rule making power in the Act is with the Central Govt. In several aspects it should be substantially diluted in favour of the states of the sections as local conditions matter in such cases and power to frame rules must be rather localised. The central Act, must at the most, be a frame-work legislation leaving the last mile methodologies to the wisdom of the State.

• Certain definitions of the Act are too draconian in the sense of their general application and must be statutorily watered down, until that happens, they must be legally interpreted. For example, ‘unwelcome conduct’ is such a broad phrase that nearly every allegation may fall within its purview. A conduct whether it is welcome or unwelcome is more rooted in the social dynamics of the exchange between the victim and the alleged perpetrator than be left to the individual assessment of the victim alone.

• The punishment for false and fabricated complaints, placed under motivation to settle scores or personal vendetta must be treated as a specific misconduct within the applicable service/organizational rules with award of meaningful punishment to the person involved in misuse of the provisions.

• There must be provisions of compensation to the falsely accused to somehow mitigate matters at his end.

• The provisions of secrecy of the proceedings and a specific bar on complainant as not to advertise her case and seek media trial must be strictly curbed as deftly pressurizing the inquiry committee with such means is loaded with the idea of miscarriage of procedure and finding.

While the PoSH Act is very generalist, it is imbalanced in the sense that the broad rubric of sexual harassment, it does not provide any detailed fail-safe mechanism for miscarriage of Justice. The law assumes that females can never be predators but can only be victims. A simple instruction or reminder, to be on time or to perform the duty diligently may be a reason behind filing a complaint of sexual harassment. Larger question is when females have made up their mind to excel in every field which otherwise was the fiefdom of men, then instead of playing fair they start to play victim card. They want to be equal to men but when needed, start behaving feminine at the drop of a hat. The complainant more often than not, is sitting at a vantage point where organizational needs and health is now realistically subservient to the machinations of the crafty. With increasing gender-based recruitment, the situation will become much worse, both in terms of the economy, the polity as also the society.

After a decade of existing of the Vishakha legislation on the statute books, it is now very important to rigorously examine the effectiveness of this act whose first intention might have been deterrent but the misuse of which has rendered the provisions draconian. There is no doubt that laws which are punitive in nature have inherent deterrence value attached to them but laws that offer the possibility of large-scale misuse are also either set aside or read down[1]. With all the technology available in hand where-in such information can be very easily collected from both the private as well as the public sector organizations it can be easily examined as to what is the nature and extent of false and bogus complaints and which ones result in compromise. The government may be well advised to look into such data as it will go a long way in determining ease of doing business in India. The Bharat Nyaya Sanhita (BNS) is completely silent on criminal defamation aspects of false complaints, and it appears that the Central Government missed an opportunity to make defamatory offences visit penal consequences. In this day and age with the danger of social media amplifying the defamation of the victim this can play in the hands of the vile and malicious complainant. As such, impact assessment (IA) studies need to be undertaken to contextualize the legislation in its Indian context thereby effecting the course correction and make the legislation achieve it objects and reasons. In our childhood days many of us have played posh-am-pa and now females are playing PoSH-PoSH. Are we progressing towards the society where parents will now teach their son to stay away from girls? Should the laws not aim towards a more healthy and progressive society?

________________________________________________________________________________________________________________

      [1.] Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH)

      [2.] as has been the experience in the case of laws pertaining to SC/ST (Protection of Atrocities) Act and Cruelty to women (498A IPC).

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.