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Table of Contents
INTRODUCTION........................................................................................................................................................................................................6
What Is Sexual Harassment?........................................................................................................................................................................................7
National legislative frameworks...................................................................................................................................................................................7
Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013....................................................................7
Constitution of India.................................................................................................................................................................................................7
Indian Penal Code (IPC)...............................................................................................................................................................................................8
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.....................................................................8
Introduction..............................................................................................................................................................................................................8
THE OBJECTIVE OF THE LEGISLATION..........................................................................................................................................................9
TERMINOLOGY.....................................................................................................................................................................................................9
IMPORTANT PROVISIONS OF THE ACT........................................................................................................................................................10
COMPLAINTS COMMITTEE..........................................................................................................................................................................10
Internal Committee.............................................................................................................................................................................................10
Constitution of IC...............................................................................................................................................................................................10
Local Committee................................................................................................................................................................................................10
Powers of IC/LCC..............................................................................................................................................................................................10
Handing sexual harassment complaints.................................................................................................................................................................10
Conciliation........................................................................................................................................................................................................10
Inquiry into complaint........................................................................................................................................................................................10
Action by employer during pendency of inquiry...............................................................................................................................................14
CONSTITUTIONAL PROVISIONS RELATED TO SEXUAL HARASSMENT..........................................................................................14
SEXUAL HARASSMENT: VIOLATION OF FUNDAMENTAL RIGHT.....................................................................................................14
SEXUAL HARASSMENT: A CRIME.............................................................................................................................................................15
AMENDMENTS TO THE ACT........................................................................................................................................................................15
JUDICIAL DECISIONS....................................................................................................................................................................................15
CONCLUSION..........................................................................................................................................................................................................15

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ABSTRACT

“There are no statutory requirements or procedural guidelines for conducting internal investigations in India, except the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This Act aims to safeguard domestic employees by establishing a
district-level grievance settlement body known as the 'Local Complaints Committee,' which has the authority to award monetary compensation.
However, outside the Act's restricted definition of harassment, this does not cover the more serious sexual violations. Apart from these, there are
many other important provisions in the Act, which will be discussed in the project briefly. In addition that project also answers many questions
and also focuses on the constitutional provisions of this particular concept. This project also specifies amendments to the act and concludes with
a few judicial decisions and the answers to the research questions.”

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INTRODUCTION

“Today’s world is accustomed to the term Sexual harassment. Sexual Harassment can be identified as a behavior. It can in general terms be
defined as an unwelcome behavior of sexual nature. Sexual harassment at workplace is a universal problem in the world whether it be a
developed nation or a developing nation or an underdeveloped nation, atrocities and cruelties against women is common everywhere. It is a
problem giving negative effect on both men and women. It is seen to be happening more with women gender as they are considered to be the
most vulnerable section of the society these days. Sexual harassment therefore is a serious problem in the workplace and it has become one of
those issues that receive a lot of negative attention.”

THE OBJECTIVE OF THE STUDY

“This project aims at providing an overview of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act,
2013. This would also help in understanding the important provisions in brief. The project also visualizes the constitutional provisions on sexual
harassment. The project also looks into the violation of a fundamental right in case of sexual harassment and sexual harassment as a crime. The
project at the end also briefs the cases related to the Act.”

SCOPE OF THE STUDY

“The scope of the study is very wide at the beginning starting with an introduction that discusses sexual harassment in the workplace and the
Visakha guidelines. Later the whole project is limited to the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, 2013.”

SIGNIFICANCE OF THE STUDY

“This study helps to give the knowledge about the topic ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal)
Act, 2013.’ This study could help to gain knowledge regarding the cases related to the concept. This study could help the law students to have
an incite about the topic and could also help others who wanted to know about the topic concerning the prevention of sexual harassment laws.”

LITERATURE REVIEW

 Convention on the Elimination of All Forms of Discrimination against Women

 Indian Penal Code

 Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013

 The International Covenant of Economic, Social and Cultural Rights, 1966

 The International Covenant on Civil and Political Rights, 1966

 The Optional Protocol, 1966

 Universal Declaration of Human Rights

E-resources

 HeinOnline

 SCC Online

 J-Gate

RESEARCH METHODOLOGY

The researcher had adopted the doctrinal method of study where both the primary and secondary sources are adopted. Keeping this in view, the
researcher has gone through different articles, books, statutes, conventions, and case laws.

TYPES OF RESEARCH

The research is a descriptive and explanatory study in nature.

RESEARCH QUESTIONS

1) Whether sexual harassment of women at the workplace amounts to a violation of the fundamental right of that individual?
2) Whether Sexual harassment is a crime?

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What Is Sexual Harassment?

“Sexual harassment has been identified as a term which is difficult to define as it involves a range of behaviors. Efforts have been made at both
national and international levels to define this term effectively. Often, the term is subjected to different interpretations. Some believe that it is
better not to mingle with female colleagues so that one does not get embroiled in a sexual harassment complaint. The reality of sexual
harassment incidents at the workplace is that there is more to worry about under-reporting, than people misusing the law.”

“In 1997, in the landmark judgment of Vishaka and others v. State of Rajasthan, the Supreme Court of India defined sexual harassment at the
workplace, pronounced preventive, prohibitory and redresses measures, and gave directives towards a legislative mandate to the guidelines
proposed.”Sexual Harassment includes many things:

1. Actual or attempted rape or sexual assault.

2. Unwanted deliberate touching, leaning over, cornering or pinching.

3. Unwanted sexual teasing, jokes, remarks or questions.

4. Whistling at someone.

5. Kissing sounds, howling and smacking lips.

6. Touching an employee’s clothing, hair or body.

7. Touching or rubbing oneself sexually around another person.

National legislative frameworks

“In India, the Vishaka Guidelines was the first ever legal action that provided a broad framework for preventing and addressing cases of sexual
harassment of women within the workplace. It recognized that sexual harassment of women in the workplace resulted in the violation of their
fundamental rights of gender equality, right to life and liberty, and the right to carry out any occupation, trade or profession.”

Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013

“In 2012, India saw increased and strong calls for addressing violence against women, with the increasing number of reported cases of sexual
harassment and violence against women. In this context, the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013
was enacted to provide protection against sexual harassment of women at workplace and for preventing and addressing complaints of sexual
harassment. The Act recognizes that sexual harassment results in the violation of a woman’s fundamental right to equality under Articles 14, 15
and 21 of the Constitution which provide for equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth and protection of life and personal liberty. The Act includes key definitions and measures to be taken by different stakeholders for
preventing and addressing sexual harassment at the workplace, which is further explained in Chapters III, IV, V, and VI of this guide. Section 28
of the Act mentions that its provisions shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Therefore, this guidebook should be read along with the Vishaka Guidelines, as well as rules when they are notified by the Government.”

The Act specifies that:

1) No court shall take cognizance of any offense punishable under this Act, or any of its rules, save on a complaint made by the aggrieved
woman, or any other person authorized by the Internal Complaint Committee (ICC) and the Local Complaint Committee (LCC).
2) No court inferior to that of a Metropolitan Magistrate of Judicial Magistrate of the first class, shall try any offense punishable under this
Act.
3) Every offense under this Act is non-cognizable.

Constitution of India

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“Sexual harassment clearly violates the fundamental rights of a women to Equality under Article 14[2] and Article 15[3], her right to life under
Article 21[4], and her right to practice any profession and carry on any occupation, trade or business[5], which includes a Right to safe
environment free from sexual harassment.”

Indian Penal Code (IPC)

1) Sections 292: “anyone found selling, putting on hire, distributing, publicly exhibiting in pamphlets, papers, writings, drawings, paintings,
representations, figures, or any other object, which is obscene shall be punished on first conviction with imprisonment for a term which
may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction,
with imprisonment for a term which may extend to five years, and also with fine which may extend to five thousand rupees.”
2) Section 293: “whoever sells, hires, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object
as is referred to in section 292, shall be punished on first conviction with imprisonment for a term which may extend to three years, and
with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment for a term
which may extend to seven years, and also with fine which may extend to five thousand rupees.”
3) Section 294: “whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any
obscene song, ballad or words, in or near any public place, shall be punished with imprisonment for a term which may extend to three
months, with fine, or with both.”
4) Section 354: “whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby
outrage her modesty, shall be punished with imprisonment of either description for a term, which may extend to two years, or with fine or
both.”
5) Section 354 A: This section was added to the Indian Penal Code upon the presidential approval of the Sexual Harassment of Women at
the Workplace (Prevention, Prohibition and Redressal) Act 2013. The Amended Criminal Law Act, 2013 recognizes and provides a clear
definition of sexual harassment and the punishment for it through this newly added section.
6) Section 354 C (voyeurism): “Any man who watches or captures the image of a woman engaging in a private act13 in circumstances
where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the
perpetrator, or disseminates such image. Punishments are imprisonment from three to seven years and fine on the first conviction, and
one to three years and fine on the second subsequent conviction.”
7) Section 354 D (stalking): “Any man is said to commit the offence of stalking when he i) follows a woman and contacts or attempts to
contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman, or ii) monitors the
use by a woman of the internet, email or any other form of electronic communication, or iii) watches or spies on a woman in any manner
that results in a fear of violence or serious alarm or distress in the mind of such woman or interferes with the mental peace of the woman.
Punishment is imprisonment of either description from one year to five years and fine.”
8) Section 509: For the offence under this section intention to outrage the modesty of the women or knowledge that the act of the accused
would result in outraging her modesty is the gravamen of the offence. Punishment is imprisonment of either description from one year to
five years and fine. The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that
there is: a) intention to outrage the modesty of the women b) knowledge that the act of the offender would result in outraging her
modesty c) action of the offender is such that it may be perceived as one which is capable of shocking the sense of decency of a woman.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013
Introduction

“Women in India were confined to household chores and the men used to be the breadwinner of the family. Women usually stay at home and
take care of children. Men go out for work or to get food or to hunt in the early times. But at a later period, this whole system of women
confining to only home is changed and women were also provided equal rights as men and they were also going out to work. In the early
stages, of the workplace, many of them faced many problems and sexual harassment by the people working there. There used to be a lot of
discrimination between the people The nation’s Constitutional framework has primarily aimed to eliminate discrimination based on gender
dimensions. Legal principles established in the Constitution, its Preamble, Fundamental Rights, and related Duties facilitate progress toward
gender equality. The Supreme Court, on the other hand, recognized the problem of sexual harassment in the Indian workplace in the
landmark case “Vishaka v. State of Rajasthan.”1 The Supreme Court was credited for drafting rules and directives to allow the development

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 of laws to prevent sexual harassment at work, and the decision was pivotal. In this case, Bhanwari Devi, a Dalit woman, worked for the
Rajasthan government’s ‘Rural Development Programme.’ She was viciously gang-raped in 1992 as a result of her efforts to curb child
marriages. This instance highlighted the dangers that women confront regularly at work and stressed the importance of having safeguards in
the workplace. As a result, attorneys and activists working under the name ‘Vishaka’ filed a petition with the Supreme Court. The Court
recognized sexual harassment at work as a violation of human rights, notwithstanding the apparent statutory gap. The Court published the
guidelines decided in the case under Article 32 of the Constitution. Until the introduction of legislation, these recommendations have the
force of law and must be observed by organizations. 1 Vishaka v. State of Rajasthan, (1997) 6 SCC 241. 6 The Vishaka Guidelines were
based on the United Nations’ “Convention on the Elimination of All Forms of Discrimination against Women”2 , to which India is a
signatory and has ratified. A considerable number of countries throughout the world have passed legislation prohibiting sexual harassment at
work. In many nations, sexual harassment is addressed as part of wider anti-discrimination laws. Till 2013, in India, we don’t have special
laws regarding the same. In India, however, there is special legislation that addresses the subject of sexual harassment at work in the year
2013. This act in the later period had superseded Visakha guidelines. In 2010, the bill “Protection of Women Against Sexual Harassment at
Workplace” was introduced. The Lok Sabha referred to a “Standing Committee on Human Resource Development,” which issued a report in
2011 with specific suggestions. The Bill was approved by the Lok Sabha with certain revisions according to the report. The “Sexual
Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013” (“POSH Act”) was adopted 16 years after the
aforementioned decision.”

THE OBJECTIVE OF THE LEGISLATION

“Sexual harassment at work, as previously said, is a violation of the right to life, equality, and liberty. This creates a hostile work atmosphere,
limiting a woman’s intellectual engagement in her job and undermining economic and social strength in the battle for equality. Furthermore, the
growing number of working women in both the organized and unorganized sectors underpins the necessity for this law.”

FOUR-FOLD OBJECTIVES OF THE ACT:

1) “The POSH Act of 2013 aims to protect women against sexual harassment at work, regardless of whether the work they do for such an
organization.”

2) “To adhere to Supreme Court guidelines requiring companies to have the policy to avoid sexual harassment.”

3) “To guarantee that there is a framework in place to prevent and address incidents of sexual harassment and gender-related violence at work.”

4) “To guarantee that an “Internal Complaints Committee” (ICC) is established to establish the necessary redressal-related standards.”

TERMINOLOGY

Two terms in the heading “sexual harassment at work” need to be clarified.

SEXUAL HARASSMENT

Sexual harassment as determined under the Act is as follows; “Unwelcome sexually determined behavior such as physical contact, advances,
sexually colored remarks, showing pornography or making sexual demands, whether verbal, textual, graphic or electronic or by any other
actions, which may contain: i. Implied or overt promise of preferential treatment in that employee’s employment or ii. An implied or overt threat
of detrimental treatment in that employee’ employment or an implied or overt threat about the present or future employment status of that
employee and includes the creation of a hostile Working environment. iii. The conduct interferes with an employee’s work or creates an
intimidating, hostile or offensive work environment or iv. Such conduct can be humiliating and may constitute a health and safety problem.”The
Supreme Court declared that sexual harassment “is gender discrimination against women and also said that any act or attempt of molestation by
a superior will constitute sexual harassment.”

WORKPLACE

“Workplace means:-

(i) Any department/organization, establishment or undertaking wholly or substantially controlled by the Central Government or the State
Government or local or other authority under the control of the central or the state government
(ii) Any venture, business, organization or institution or department carrying on systematic activity by co-operation for the production,
supply or distribution of goods and/or services irrespective of whether it is an “industry” within the meaning of section 2(j) of the
Industrial Disputes Act, 1947 or whether it is performing any inalienable sovereign function and irrespective of whether the goods and/or
services are provided for any remuneration or not and

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(iii) Includes any place where an aggrieved woman or defendant or both is/are employed or work/s, or visits in connection with work during
the course of or arising out of employment, and
(iv) Such other statutory and/or professional bodies, contractual and other services.”

“The petitioner, a Sikkim University Mass Communication professor, filed a writ petition contesting the show cause notice dated 10.06.2019 and
the subsequent termination decision dated 28.06.2019 based on a sexual assault case brought against him by a department student. Because the
claimed instance of sexual harassment reportedly happened at a hotel during a wedding party, which would not fit within the concept of
“workplace” under current legislation, the petitioner alleges the Internal Complaints Committee lacked authority to hear the case. After all, the
applicant and complained went there for reasons “not related to or related to their work. Following subsequent procedures, it was determined that
the workplace definition is inclusive rather than exclusive. As a result, the writ petition was dismissed.”

IMPORTANT PROVISIONS OF THE ACT

COMPLAINTS COMMITTEE
“The POSH Act includes a provision for the establishment of a grievance redressal forum, which is a significant aspect. ”

Internal Committee

“ The POSH Act mandates employers to establish an “internal committee” (“IC”) at each office or branch of a company with 10 or more workers
to hear and resolve sexual harassment complaints.”

Constitution of IC

“It includes the composition and who to be joined in the committee.”

Local Committee

“The government is required to establish a “local committee” (“LC”) at the district level to investigate and redress sexual harassment complaints
from the unorganized sector or from establishments where the IC has not been formed because the establishment has less than 10 employees or if
the complaint is against the employer. The LCC is particularly relevant in situations of sexual harassment of domestic workers, or if the
complaint is made against the employer or a non-employee third party.”

Powers of IC/LCC

“It specifies the powers in case of any complaint filed.”

Handing sexual harassment complaints

The Act presents two ways to respond to a sexual harassment complaint: Conciliation and Inquiry.

Conciliation

“The Act has a provision for the Complaints Committee to take steps to settle matters through conciliation before initiating an inquiry. The
conciliation can only happen at the request of the aggrieved woman and money cannot be the basis of this settlement. Once the settlement has
been agreed upon, a record of the settlement needs to be sent to the employer or the District Officer to take action as specified in the
recommendation. The copy of the settlement should be sent to the aggrieved woman and the respondent. No further enquiries are conducted after
the settlement. However, if any of the conditions of the settlement are not complied with by the respondent, the aggrieved can go back to the
committee who will proceed to make an inquiry.”

Inquiry into complaint

“According to the Act, the complaint mechanism should ensure a time bound treatment of complaints. The ICC/LCC is bound to complete the
inquiry within a time period of 90 days upon receiving the complaint. Although the Act does not provide specific steps for handling cases of
sexual harassment, each employer or organization should develop and provide detailed guidance on steps for conducting inquiry to the
complaints Committee ensuring safety of all concerned, especially the complainant to avoid victimization, and ensuring consistency and fairness
for all cases received. The information on steps should be widely shared with workers, especially the aggrieved woman and the respondent to
have a clear understanding on the process.”

“While conducting the inquiry procedures of the case, the Committee has the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908 with respect to the following:

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 1) Summoning and enforcing the attendance of any person
2) Examining the individual on oath
3) Requiring the discovery and production of documents essential to the case.”

“The Act also includes provisions for counsellors or any other support services in case either party should ask for one.”

“The information below presents general steps involved in the investigation and explanations per step:

Investigation of the allegations

“For ensuring safety of the complainant and fairness for alleged harasser, investigation may be carried out according to the steps as follows:

a) The complainant is interviewed to document the details of the incidence

b) The allegations are conveyed to the alleged harasser in full
c) The alleged harasser is given the opportunity to respond and defend themselves against the allegations
d) If there is a disagreement over facts, statements from any witnesses and other relevant evidence are gathered
e) Relevant allegations made during the investigation are made known to both the complainant and alleged harasser, with an opportunity to
respond.”

“According to the Act, if both parties are employees, both parties will be:

1) given a fair chance of being heard

2) given a report of the findings that will enable them to make their representations before the committee.”

“The employer should authorize the presiding officer/chair of the ICC/LCC to procure all documentation and other evidence from appropriate
departments during the investigation. The employer may also initiate action against the perpetrator under the Indian Penal Code or any other law
if the aggrieved woman so desires. This is also applicable if the perpetrator is not an employee (third party).”

Examination of witnesses

“Although cross-examination of witnesses needs to be conducted in the presence of the accused in ordinary cases, such cross-examination should
not be done in the presence of the respondent in the case of an inquiry into allegations of sexual harassment. Sometimes the very presence of the
respondent may result in putting pressure upon the witnesses, particularly, if they are children, and may discourage them from coming out with
the truth. Moreover, cross-examination in the presence of the respondent would invariably result in disclosing the identity of the aggrieved
and/or witnesses, even where it is not necessary to disclose their identity. The necessity of withholding the identity of the aggrieved and/or
witnesses of sexual harassment was acknowledged by Supreme Court in Bidyug Chakraborty, when it directed cross-examination of the
witnesses, by way of interrogatories through a Local Commissioner. The Act also states that the Committee must ensure complete confidentiality
of the complainant during the investigation is in the process. All information collected such as statements from interviews and documents and all
steps taken in the investigation must be thoroughly and properly recorded.”

Examining findings applying the principles of fairness

“Cases of sexual harassment are controversial and highly contentious matters. Acts of sexual harassment in the workplace are usually between
two individuals and often behind closed doors, a “private matter”, mostly without any eye witnesses. In cases where sexual harassment is over a
prolonged period of time, aggrieved might not have kept a log of the acts of harassment, dates, times it occurred and a list of witnesses to that
specific conduct. It is also possible that when sexual harassment takes place in the open, it might appear as consensual and mutually acceptable
behavior to the others in the workplace. In this context it is necessary to understand the different standards that are adopted in dealing with cases
of sexual harassment in the workplace.”

The most predominant standards include:

i. Reasonable Woman Standard

ii. Intent vs. Impact

iii. Human Rights

iv. Prior Awareness

v. Proof beyond Reasonable Doubt

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Reasonable Woman Standard

“The most common practice to assess sexual harassment in the workplace is to use a Reasonable Woman Standard. It implies that an act(s) of
behaviour is considered to be sexually harassing if a ‘reasonable woman’, when put in that situation, would deem it to be so. This standard was
adopted in order to avoid decisions being taken that will in all likelihood have a male perspective to it if there are no woman-based standards
available. This allowed the decision makers to view the case from the perspective of the aggrieved. This approach has emerged from the
reasonable man standard used earlier where the perspective of a ‘reasonable man’ was used to determine whether sexual harassment had indeed
occurred. This stance was found to be flawed and supported existing male dominant positions of power, which discriminate against women. In
today’s courts of law across the world, as well as in India, the reasonable woman approach is gaining more acceptances due to its logic and
gender sensitive reasoning which supports the view of a woman in ascertaining the occurrence of sexual harassment.”

Intent vs. Impact

“‘Intent vs. impact’ is one of the most crucial standards in assessing sexual harassment. In this framework, the “impact” on the aggrieved is given
weightage as opposed to the “intent” of the perpetrator. This view has had significant bearing upon cases of sexual harassment and the
consequent decisions that have favored women. There is emphasis on the purpose or effect of the offensive conduct on another’s dignity. Impact
not intention is what counts. In a nutshell it is not sufficient reason to excuse an act of sexual harassment merely because someone said “Well, I
did not mean it, sorry!” This approach, combined with the Reasonable Woman Standard approach, is important elements in deciding cases from
a third party perspective, along with the cultural context and other prevailing social norms to ensure that justice is meted out.”

Human Rights Approach

“In the Guidelines laid down by the Supreme Court in its Vishaka judgment, Point 12 clearly mentions that “These guidelines will not prejudice
any rights available under the Protection of Human Rights Act, 1993”. This approach uses the definition of ‘human rights23’ in Section 2 (d) of
the Protection of Human Rights Act, 1993. However, going beyond the law and using a human rights approach shifts the emphasis in assessing a
case of sexual harassment. Decisions are no longer taken on the basis on direct evidence or proof that is submitted but on examination of the
social context in which such violations occur. The reality that sexual harassment is a ‘power game’ and often occurs in a relationship of unequal
power becomes central to assessing a complaint. The human rights issue also goes beyond an individual perpetrator and takes into account lapses
in the work environment that can have detrimental results and negative consequences for the individual, as well as the organization.”

Prior Awareness Approach

“Another approach to understanding whether a particular case is an act of sexual harassment or not is known as ‘prior awareness’. This standard
assumes that there are two attitudes at play as a reaction to an act of sexual harassment. If the complaint’s attitude is of a vulnerable, docile and
powerless woman, there is all likelihood of the natural instincts of the decision maker to perceive the woman in question as a victim, which may
result in a favorable decision towards her. But, if the complaint’s attitude is that of a hostile and aggressive woman, the decision makers are most
likely to express an unfavorable decision for the aggrieved, as they view her as a threat to male dominance. This theory underscores once again
the importance of developing explicit and shared standards and criteria for the assessment of behaviours as sexual harassment at workplace.”

“Thereare two attitudes at play which have contrasting impacts in the prior awareness approach. These are “hostile sexism” and “benevolent
sexism”.”

“In “hostile sexism”, the preferred and acceptable image of a woman is that of a submissive female who has remained within her socially defined
limits. So called aggressive women are viewed negatively as those who must be controlled and prevented from occupying male dominated
spaces. The hostile images of a woman that are created by this attitude are likely to trigger an unsympathetic response from the third party,
which could end in an unfavorable decision for the aggrieved as she is viewed as a threat to male dominance. This attitude structure of ‘hostile
sexism’ suggests that where a woman aggrieved is seen to be aggressive, the response to her complaint may be unsympathetic and assessment
may be unfavorable to her.”

“Benevolent sexism has the image of a vulnerable and powerless woman who has to be protected by the all-powerful male. This rouses feelings
of sympathy and compassion towards a weaker individual being dependent and seeking the support of the powerful. Such an attitude is more
likely to perceive the woman in question as a victim, whose space has been invaded by the respondent and therefore may result in a favorable
decision for her. The attitude structure of ‘benevolent sexism’ sees the woman as helpless and vulnerable, therefore assessment may favour her.”

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In essence the theory of prior awareness underscores the importance of developing explicit and shared standards and criteria for the assessment
of behaviours as sexual harassment at workplace.

Proof beyond Reasonable Doubt

“The Supreme Court recognized, as in the case of Apparel Export Promotion Council vs A.K. Chopra in 1999, that if evidence and witnesses
may not always be forthcoming, reliance has to be placed on the circumstantial evidence and whether it, in overall terms, inspires the confidence
of the judges. The terms used for evidence is that of “high probability” or “within reasonable doubt”. Which means that it is not required that the
Committee obtains ‘proof beyond reasonable doubt' to take a decision on whether sexual harassment has occurred. As most incidents of sexual
harassment are in private without any solid evidence or eye witnesses, the case should be built upon the strong probability that the accused did
sexually harass the complainant is sufficient to take a decision in her favour.”

“The Supreme Court in its judgment in State of Haryana vs. Rattan Singh reported in 1982 (1) LLJ 46 held that “It is well settled that in a
domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically
probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility”.”

“It has been consistently held by the Supreme Court in a domestic enquiry that the misconduct need not be proved beyond all reasonable doubt,
but if there are preponderance of probabilities, that is enough for holding a person guilty of misconduct.”

Arriving at the conclusion as to whether the harassment occurred or not

“A formal complaint should not be dismissed on the ground that nobody saw or heard the incident/s occur. Given the nature of the conduct, there
are often no direct witnesses to acts of sexual harassment. Those responsible for investigating complaints should consider all available evidence,
including any surrounding evidence, and make their finding on the balance of probabilities, that is, that it is more probable than not that the
harassment did or did not occur. It is important to note that even if there is not enough evidence for a complaint to be substantiated, it does not
mean that the discrimination did not occur or that the complainant is a liar. Findings may be that harassment did or did not occur, or that it was
not possible to make a conclusive finding.”

Submitting a report with a recommended course of action to the appropriate decisionmaker (employer, management, etc)

“The onus of preparing the report rests with the Presiding Officer/Chairperson of the Complaints Committee. She may seek the support from
other Committee members or other persons in doing so, depending upon the proceedings and the complexities of the case. For example the
Presiding officer/Chairperson may deploy the services of a professional to transcribe recorded statements of all witnesses or seek the advice of a
lawyer in understanding complex aspects of a case. However, it must be noted that caution must be exercised in maintaining the confidentiality
of the case and the identity of the aggrieved at all times.”

“The report must present all the evidence that has been acquired in the proceedings of the complaint. It shall build up an argument of the
conclusion reached in the case and a rationale for the suggested penalty to be imposed if the case of sexual harassment had been proven. The
report of the Complaints Committee shall be deemed to be the final inquiry report. In accordance with the Terms of Reference of the Committee,
the report shall be submitted by the Chairperson, to the employer/ head of the institution or disciplinary authority for consideration.”

“The Act mandates that on completion of the inquiry, the ICC and the LCC must send a report of its findings to the employer within a period of
10 days of completion of the inquiry.”

The inquiry report may contain 3 types of verdicts:

1) “If the allegation against the respondent has not been proved, the ICC/LCC recommends to the employer or the District Officer that no
action is required to be taken.”
2) “If the allegation against the respondent has been proved:
a) LCC can recommend to the District Officer or the ICC can recommend to the Employer to take action on sexual harassment as a
misconduct in accordance with the provision of service rules; if there are no such service rules then with the rules that have been
prescribed
b) The committee can also recommend deduction of an appropriate sum of money from the salary of the respondent or ask respondent to
pay the sum as compensation to the aggrieved. The amount may be determined by the ICC/LCC members on the basis of:
- the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman

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 - the loss of career opportunities due to the incident of sexual harassment
- medical expenses incurred by the aggrieved for physical and psychological treatment
- income and financial status of the aggrieved
- feasibility of such payment.”

3) “If the allegation against the respondent has been proved to be a false and malicious complaint, or if the aggrieved or anyone else has
produced a false document, the Act provides for a penalty according to the Service Rules. However, this clause has a safeguard in the form of an
inquiry prior to establishing the malicious intent. This means that the onus of proving that the complaint was of a false and malicious intent lies
with the committee. Mere inability to prove the case or a lack of evidence will not attract penalty under this provision.”

“The decision of the Complaints Committee should be presented in its report and submitted to the head of the institution who will forward the
same to the disciplinary authority. This report may also contain suggested penalties for the accused.”

Action by employer during pendency of inquiry

“The Act includes provisions related to action which may be taken by employers during the pendency of an inquiry. Upon a written request made
by the aggrieved woman, the Committee may recommend to:

1) Transfer the aggrieved or the respondent to any other workplace

2) Grant leave to the aggrieved woman up to a period of 3 months, which is in addition to the leave that she is entitled to
3) Grant other relief as appropriate.”

“One of the reasons for this provision is that when an act of sexual harassment is the result of power dynamics at play, the daily proximity of the
aggrieved with her “harasser” has a deep and lasting negative impact on the emotional, physical and social functioning of the aggrieved, who is
often of a more subordinate position than the accused.”

CONSTITUTIONAL PROVISIONS RELATED TO SEXUAL HARASSMENT

“Sexual harassment in the workplace is a problem that runs counter to the Constitutional provisions. As a result, the POSH Act was enacted to
address this gap. Article 19 (1) (g) of the Constitution13, for example, provides the freedom to engage in a trade, profession, or business. As a
result, Sexual Harassment denies a woman her right to work and keeps her away from her workplace. It also threatens to infringe Article 2114,
which guarantees a woman’s right to life and personal liberty. A woman is entitled to the elimination of gender based hurdles to truly live her
life under such a provision. As a result, for a real ‘Right to Work,’ there should be no barriers to a safe working environment. Furthermore, the
preamble ensures that all Indian citizens have equal opportunities and positions. Sexual harassment is against the Constitution’s core values. As a
result, the POSH Act is legislation whose goals are to be accomplished by the fundamental values of the Indian Constitution.”

SEXUAL HARASSMENT: VIOLATION OF FUNDAMENTAL RIGHT

Harassment of women and sexual harassment is said to be a violation of Human Rights. The United Nations Organization (UNO), in keeping
with its mission to promote and encourage universal respect for human rights and fundamental freedoms, has issued an International Bill of
Human Rights, which includes the following charters;

 The International Covenant on Civil and Political Rights, 1966

 The Optional Protocol, 1966

 Universal Declaration of Human Rights, 1948.”

“The Protection of Human Rights Act of 1993 defines “human rights” as “the rights relating to life, liberty, equality and dignity of the individual
guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.” Because the right to live in
dignity is a human right protected by our Constitution, it is important and expedient for employers in the workplace, as well as other responsible
individuals or organizations, to follow specific principles to ensure the prevention of sexual harassment of women. 15 To safeguard working
women from sexual harassment or abuse, the court adopted the right to gender justice under Art.21, based on concepts from international
conventions. As a result, sexual harassment is subject to the remedy provided by Art. 32 for the enforcement of women’s basic rights. Other

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clauses, in addition to Art. 32, envisage judicial assistance in the elimination of this social evil. The government has the authority to make
special provisions for women. Article 42 requires the state to provide for reasonable and humane working conditions which all together depicts
sexual harassment at the workplace as a violation of fundamental rights.16 Supreme Court, while upholding a High Court judgment that
canceled a woman bank employee’s transfer has stated that sexual harassment at work is an affront to a woman’s fundamental rights. The Bench
of Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi, while ordering her to be re-posted at the Indore Branch, also said that she will
be entitled to a cost of Rs. 50,000.”

SEXUAL HARASSMENT: A CRIME

“Till the year 2013, sexual harassment is not recognized as an offense. After that the Criminal Law (Amendment) Act, 2013 penalizes and
punishes offenders of sexual harassment under the following clauses section 294 specifies obscene acts and songs, section 354 specifies sexual
harassment, using assault or criminal force on a woman with intent to disrobe her, Voyeurism, Stalking and section 509 specifies punishment for
insulting the modesty of a woman. All these sections are clear and have shown that sexual harassment is an offence and that is a crime that is
penalized under the Indian Penal Code. Apart from this the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal)
Act, 2013 also specifies the punishment for offences. In a journal on “Civil Rights: Is sexual harassment by a state court judge a federal crime?”,
a case has been discussed and the title was the issue in question. The facts flow as follows; Vivian Archie walked in for a job interview with
Judge David Lanier. She had not expected to face the prospect of losing custody of her child. She couldn’t have predicted that a chancery court
judge, who presided over 80 percent to 90 percent of all domestic cases in her hometown of Dyersburg, would force her to perform oral sex. He
stood over her, exposed himself, and dragged her head down, as the 6th Circuit acknowledged in its original denial of his appeal, and she
testified that this damaged her throat. Does that strike you as a breach of a constitutionally protected right? It didn’t matter to the 6th Circuit,
which overturned the trial court 9-6. Lanier’s case is before the Supreme Court of the U.S. The Court of Appeals also correctly determined that
sexual assault and battery is a crime.”

AMENDMENTS TO THE ACT

“As a result, there have been no significant changes to the POSH Act of 2013. In the year 2013, Sections 6, 7, and 24 of the Act were modified
minorly. “Local Complaints Committee” has been replaced with “Local Committee,” and “Internal Complaints Committee” has been replaced
with “Internal Committee.” The Ministry of Corporate Affairs modified Rule 8 of the Companies (Accounts) Rules, 2014, in 2018, requiring
every company to disclose compliance with the POSH Act’s requirements for an Internal Complaints Committee. The “Ministry of Child and
Women Development” requested that the modification be introduced to ensure that the POSH Act be implemented in its entirety. This is a great
move since it establishes a legal framework for employers to comply with the POSH act.”

JUDICIAL DECISIONS

“Several judicial decisions have been made in this respect. These decisions will be separated into two categories for simplicity of use. The first
deals with case law previous to the POSH Act’s passage, while the second deals with case law following the act’s enactment. The first case that
will be discussed is the prior one which we had already seen into it in the definition of sexual harassment. The Apex Court restated the Vishaka
guidelines in the judgment of “Apparel Export Promotion Council v Chopra”19 and so fired the higher officer of the Council who had sexually
harassed a female subordinate at work. The fact of direct physical contact was not required for sexual harassment, according to the Court. The
court said in “Somaya Gupta v Jawarharlal Nehru University” 20 that mere suspicion of bias is insufficient to dismiss a member of the IC. The
Court emphasized the need of establishing a substantial possibility of prejudice rather than a mere suspicion of bias. In this case, the IC’s
Presiding Officer was present during the event and so recused herself. However, there was no reason to believe that the other members’ interests
would interfere with their responsibilities under the POSH Act. As a result, the IC was not reconstituted by the court.”

CONCLUSION

“After the Visakha Guidelines have brought into the limelight, there has been a stand on the protection of women’s rights. This Act has been
brought into force with good intentions for the protection of women against sexual harassment. In earlier days there used to be a lot of
discrimination against women employees and they were also subjected to harassment in many places there is no special law on it to deal with
these issues. The rights of women were affected at large. Through the amendment made to Criminal law and by bringing into force the present
Act, sexual harassment was also considered a crime and there are punishments provided for those offences. Still, there are few people were they

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were afraid of coming out and complaining about sexual harassment, there used to be training sessions that are to be conducted time-to-time in
the workplace. So, the women who are subjected to sexual harassment would be fear-free to complain about the same.”

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