Genesis of The PoSH Act In India

Vishaka Guidelines as laid down by the Supreme Court of India

Vishaka and other women’s organisations brought a Public Interest Litigation (PIL) before the Supreme Court of India based on the facts of Bhanwari Devi’s case against the State of Rajasthan and the Union of India. It was urged that sexual harassment be acknowledged as a violation of women’s fundamental right to equality and that all workplaces, establishments, and organisations be held accountable and liable for respecting these rights.

The Supreme Court of India established legally binding guidelines in the landmark ruling Vishaka vs. State of Rajasthan (1997), basing it on the right to equality and dignity guaranteed by the Indian Constitution as well as the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

It contained:

• A definition of sexual harassment
• Shifting accountability from individuals to institutions
• Prioritizing prevention
• Provision of an innovative redress mechanism

Sexual harassment, according to the Supreme Court, is any unwanted, sexually motivated physical, verbal, or nonverbal behaviour. Examples include making sexually suggestive comments about women, requesting sexual favours, and using sexually explicit images at work. The definition also addressed scenarios in which a woman can experience disadvantage at work as a result of risks related to hiring decisions that might have a detrimental impact on her working life.

Employers were required to make sure that there was no hostile work environment for women, and it was against the law to intimidate or victimise anyone who helped with an investigation, including the complainant who was being investigated and any witnesses.

It called for the formation of a complaints committee as a means of redress, which will investigate cases of workplace sexual harassment of women. To reduce excessive pressure on the complainant, the Complaints Committees were required to be led by a woman employee, have at least half of their members be women, and to include a third party person or NGO expert on the subject. The regulations applied to all paid and unpaid jobs in the public and private sectors.

Vishaka ruling established that foreign standards and legislation could be used to broaden the protections provided by India’s constitution and fill up any gaps that may arise. The Vishaka Guidelines and related legislation, which marked the beginning of India’s creative history in addressing workplace sexual harassment, have given the problem crucial prominence. Workplaces must now accept responsibility for this situation and make sure that women may work in environments that are secure and safe.

THE PoSH ACT

The Supreme Court, by raising the standard of responsibility and accountability in the Vishaka Guidelines, has obligated businesses, organisations, and individuals in authoritative positions to protect the fundamental right of working women to equality and dignity in the workplace. In order to reach that benchmark, institutions were required to fulfil the following three obligations:

• Prohibition
• Prevention
• Redressal

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act was enacted in India in 2013. The Act’s stated goal is to protect women from sexual harassment in the workplace by requiring employers to provide a harassment-free environment, train employees, and implement policies that are consistent with the Vishaka judgement.

It’s worth noting that the Act is in addition to pre-existing legislation and provides women with a civil recourse. Therefore, any woman who experiences sexual harassment on the job can pursue legal action, both civil and criminal.