Introduction
There was a time when only men used to step out for work, while women bore children and completed household chores. However, with the gradual development of society, and the introduction of globalization, the norm has changed. Women have taken up roles in almost every possible field now. Society may have changed, but the mindsets have not. With the hope of achieving equal status for men and women, women started working. But gender equality is still a distant dream. Sexual Harassment at the workplace is a prominent issue in the country. When we think it cannot get any worse, it does. While half of the world was celebrating a one-year ‘vacation’ because of the Covid-19 pandemic, some people had nothing worth celebrating. The ones who were fortunate to be employed during this pandemic were subjected to harassment. Contrary to popular belief, even homes are not safe for working anymore. Various incidents of virtual sexual assault were reported in the last two years. Digital Sexual Harassment is equally detrimental to in-person harassment. It is often argued that digital harassment is an extended version of in-person harassment because there are no CCTVs, ICs or HRs to govern the happenings of a zoom call or a Whatsapp Text. Now, the real deal was whether our one-and-only sexual harassment at workplace legislation would be able to pull off dealing with matters on online assault. It is safe to say, that it passed this test with flying colours.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013, also known as the POSH Act is a fairly new law. It was brought in 2013 after the Vishakha Guidelines that were a temporary set of regulations passed by the Parliament in pursuance of the unfortunate Vishakha Case. It took the country years to come up with legislation for harassment at the workplace, however, the legislation turned out to be ahead of its time.
Virtual Sexual Harassment
In 2020, the NCW reports suggested a sudden decline in the cases of sexual assault and harassment at the workplace. As reassuring as the news sounds, it is just a bubble of utopia. There were only a few cases because nobody went to their workplaces. But undoubtedly, cases of Domestic Violence and Virtual Workplace Harassment spiked, which demanded the POSH law to be a progressive law.
Section 2 (n), along with Section 3 (2) lay down various instances which can be construed as sexual harassment. Any unwelcomed, sexually tinted behaviour can constitute sexual harassment. It can be direct or implied. Few categories were given- requesting or demanding for sexual favours, passing sexually coloured remarks, physical advances, showing pornography, or any other form of harassment in the form of verbal and non-verbal conduct that has a sexual connotation to it.[1] Implicit/explicit promises for preferential treatment, detrimental treatment, current or future threats, creating an insecure and hostile work culture can come under the purview of sexual harassment. Any action that negatively impacts a woman’s health or safety can also contribute to harassment.[2]
The subjectivity of this provision has been kept intact as what might be harassing to one person, may not be to the other. This is because the act keeps impact over intent, which has been implemented by the Courts in various instances. So, what accounts for sexual harassment and what doesn’t is case-dependent. In a recent judgment of the Rajasthan High Court, it was opined that the scope of ‘workspace harassment’ has been widened as it includes online harassment too. Therefore, the definition can be expanded and can cover virtual sexual harassment too.
Virtual Sexual Harassment can include:
- Inappropriate texts
- Sexually coloured remarks
- Unwelcome sexual advances
- Inappropriate sexual jokes, pictures, emoticons, GIFs, videos
- Unwanted facial expressions (winking, throwing kisses, etc)
- Using body movements to make sexual gestures
- Dressing inappropriately during a video call
- Cyberstalking
- Passing comments on an individual’s virginity, body type, physical qualities, sexual preferences
- Taking photos without consent etc.
The ambit of ‘Workplace’
‘The law is what is read, not what is written’.
The definition of ‘workplace’ has been laid down in Section 2 (o) of the Act. The wide ambit of this definition covers all major possibilities of a workplace, which makes this law reasonable. The onus of deciding whether or not a specific place is a workplace lies in the hands of the adjudicating authority, depending on a case-to-case basis. But various judicial interpretations can be used to understand the umbrella term.
By the means of Section 2 (o) (v), The workplace is any place that is visited by the employee which arises out of or during the course of employment, inclusive of transport facilities provided by the employer. As per Section 2 (o)(vi), the workplace also includes a dwelling place or a house. Therefore, POSH Act stands valid in terms of remote working.
In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, even if the assault has taken place in the ‘residence’, the harasser cannot claim that the assault did not happen at a workplace.
The case of Ayesha Khatun v. State of West Bengal & Others reiterated that the term ‘workplace’ must be given a broader and wider meaning to protect the interests of women.
Again, in the case of Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, the Bombay High Court restated that since the intent of the Parliament was abundantly clear while making the law, which was to provide safety and security to women in all workplaces, the definition of ‘workplace’ must be widely understood.
The object of the legislature is clear, practical & manifest. Also, provisions must be interpreted in a way that furthers the very cause of the legislation. This implies that the law requires a liberal approach of interpretation over a pedantic approach because it’s the spirit and not the form of the law that keeps justice alive.
In this case, Section 3 suggests that no woman should be subjected to sexual harassment at any workplace. Therefore, a logical interpretation of the law would protect women from all possible forms of harassment, instead of fixating on the stated provision.
Complaints and Remedies
Since the concept of ‘virtual harassment’ and ‘virtual workplace’ have found their traces in the law, it can be claimed that most of the Service Rules, Code of Conduct policies, and provisions of the Act can be stretched liberally to cover cases of workplace harassment in the pandemic.
The Act also provides for a written procedure for filing a complaint.[3] Even before the pandemic, India launched an online portal for the same, to take complaints remotely and effectively. It came to be known as the SHE-BOX. Therefore, a woman can file a complaint without having to follow a tedious, and physical process. It also helps in making the complaint confidential. [4]Also, it avoids the walk of shame that victims have to deal with, because of the stigmatization of sexual assault victims.
Now, since the possibility of filing a complaint in the virtual mode is evident, similarly, the grant of reliefs, compensations, and remedies under the Act can also be made WFH friendly. Section 12 provides for interim reliefs to the victims and the reliefs can also be extended to the remote-working model. For example, the aggrieved woman can demand her transfer or the transfer of the accused to another department. This communication can be done by mailing the Internal Committee too. Moreover, the Act also empowers the IC to grant any other relief as deemed fit.[5] Section 13 (3) of the Act lists down the compensation of the victim if it has been proved that the respondent committed an act of sexual harassment. Since the compensations are usually derived by deducting salaries and wages of the respondent, it can be facilitated in the online mode too.
Conclusion
The mode of work might have changed, but it does not give anyone the right to exploit an individual’s fundamental rights. Right to safety and work with dignity are facets of fundamental rights granted by the Constitution, which cannot be taken away. Therefore, companies should address such sensitive issues by reviewing their existing policies, clarifying the legal and technical infirmities at the latest, conducting sensitization and educational workshops relevant to harassment at the workplace, defining rules to regulate online behavior of employees, handling grievances promptly and practically, training and auditing ICs and LCs, etc.
The law is quite user-friendly, up-to-date, and well interpreted. But to avoid confusion, a new guideline must be issued by the authorities that cover the remote nature of working, even after the pandemic because various big companies are about to go online even after the pandemic subsides. Therefore, the provisions must contain a specific set of rules and regulations in an online platform. Also, the act needs to strike a balance between a liberal interpretation of the provision and the specificity of the provision to avoid vagueness.
While we have moved a step forward when it comes to digitalization, we will go ten steps back in humanity, if the legislation is not followed effectively. Therefore, the effective implementation of this law is needed to bring the brilliantly drafted act from paper to reality.
Author(s) Name: Reet Nagpal (Symbiosis Law School, Pune)
References:
[1] Prevention of Sexual Harassment at Workplace Act 2013 s 2(n)
[2] Prevention of Sexual Harassment at Workplace Act, 2013 s 3(2)
[3] Prevention of Sexual Harassment at Workplace Act 2013 s 9
[4] Prevention of Sexual Harassment at Workplace Act 2013 s 16 & 17
[5] Prevention of Sexual Harassment at Workplace Act 2013 s 12 (C)
