A Decade of Prevention of Sexual Harassment Act (POSH) in the Workplace: Challenges and Way Forward

The innate nature and tendency of the capitalist system is to bring forth any socio-economic problem to the fore with a masked version making it look like a ‘commodified-personalised’ problem. Therefore, when sexual harassment occurs or a lackadaisical tendency towards prevention of such an issue arises, it is often seen as a personal trauma and quite easily in the eyes of the consumer culture: the survivor is singled out.

However, as Simone de Beauvoir, one of the foremost thinkers of the global second wave of feminism said, ” Personal is political.” Therefore, sexual harassment in the workplace is eventually the result of politics that persist in the sphere of different developments of capitalism. It is the politics of gender inequality that underlies the politics of financial, social, and political inequality towards the marginalised gender. A recent survey found ⁱthat since the Covid pandemic, the gap between the number of incidents of harassment being reported and the number being resolved has been widening. More and more incidents are happening, while fewer incidents are being resolved.

A Decade of Vishakha Guidelines and POSH Act

In India, the law to prevent sexual harassment in the workplace, popularly known as the Visakha Guidelines, was enacted in 2013. It’s been a decade. But has this law been able to take action against sexual harassment of women in the workplace? Indian society and policy circles need to examine how far this law has brought gender equality in the workplace. Ten years is not a very short period. The act is called the POSH ACT, which was designed to reduce, prevent and control sexual harassment in the workplace. To implement this law, an Internal Complaints Committee (ICC) has to be formed in every workplace. Regional or Local Complaints Committees are supposed to be formed in each district and eventually to be culminated at the state level. Even after ten years, this committee has not been formed in a lot of places. The status of the regional committee at the district level is also insufficient. Only 18% of districts in the country have these committees and even there not all types of workplaces are given importance. If the recent RG Kar Hospital incident of brutal rape and murder in Kolkata, West Bengal is considered, it can be seen that there was no functional Internal Complaints Committee in the medical college. This clearly means there existed no opportunity to complain about sexual harassment, which is the bare minimum necessity towards the implementation of the law.

A bench of the Supreme Court observed that even after ten years, there is serious delay and uncertainty in the implementation of the Act. This became clearer in 2018 when the #MeToo movement started on social media in the Indian public sphere. Along with the public and private sector workers, stakeholders of the Bollywood Film Industry came forward in this movement. They opened up on social media about sexual harassment in their workplaces long after the actual incident took place. They stated that either the Internal Complaints Committee (ICC) is not there in their workplace, or they have not received any justice for 5/6 years after making the complaint.

Hence, they have no other option but to be vocal on social media. After all these, can we say that the number of incidents decreased? The problem is, when something happens, society tries to mediate it as ‘normal’ and try to accommodate it. Apart from this, the nature, dress etc. of the affected woman is portrayed as the cause of the incident. Patriarchy, especially patriarchy operating within the current neoliberal market system, commodifies women and their bodies: especially enables a ‘culture of victim-blaming (or survivor shaming)’.

Historical Trajectory Behind the Act and Challenges of Implementation

The roots of this law date back to 1992. At that time, Bhanwari Devi, a health worker of the government social project in Rajasthan (the Asha workers project was not running in the country at that time, if it had been, Bhanwari Devi would have been an Asha worker) was gang-raped while preventing the marriage of a girl child. When the case reached the Supreme Court, it was found that there was no law in the judiciary to prevent such crimes. Visakha guidelines were issued in 1997 to enact this Act. This Act has been framed following Article 15 of the Constitution of India and the International Convention (CEDAW), which is an international guideline for the elimination of all forms of Violence Against Women. India signed CEDAW in 1980 but ratified the Directive at the official level in 1993. This Act is so far effective only for the organized sector. The Act is not yet applicable to self-employed or contractual workers. However, the surprising thing is that this type of law is initiated only based on the complaint of any worker. There are very few examples in our country’s judiciary where this law has been used.

The Supreme Court in the case of Government of Goa vs. Aureliano Fernandez pointed out the murky aspects of this law. The government’s willingness to seriously commit in implementation and in general society’s commitment to enforcing and abiding by the law is quite evident. Harassment is still a very ‘unusual’ topic if only left to the judiciary. In particular, the definition of harassment in the law, apart from direct physical sexual harassment, also involves a certain manufacturing of an environment that creates or enables ‘culture of harassment’. In every aspect of the law that has been written to protect the constitutional rights of women, questions have been raised by society and the media that powerful women can easily take disciplinary action against a man by abusing this law. However, the law clearly states that the complainant will face serious consequences if the statement of the complaint is proven to be false. In addition, has society accepted this broad definition of harassment? Does society believe the concept of ‘no means no’? It is still relevant that this slogan ‘No Means No’ is repeatedly raised in the recent movement against RGKar brutality in Kolkata to protect the constitutional rights of women.

Indian society is yet to take this legislation to the stage of enactment. Though many developments are taking place. In 2021, the National Human Resource Development Department and a consulting firm surveyed 400 professional women. The survey found that only 8% knew about the law before 2021.ⁱⁱ 11% said they would rather quit their job than report something like sexual harassment. It implies that they look at the matter with eyes of hesitation, shame and hatred and think that it is better to stay quiet instead of raising a voice to punish the criminal. Everyone thinks this incident is personal and this only happened to the concerned survivor of harassment. This is similar to the case of a self-employed worker who receives low wages and feels that the problem is personal. The capitalist system brings the socio-economic problems to the fore through personalization. It is in this context, the entrenched and embedded role of patriarchy has to be understood. The aforementioned survey revealed that 37% of people, mainly women, were victims of harassment at work. Another survey in November 2023 found that 40% of employees feel a lack of women’s safety, but 53% of those in management are not aware of the law.

A research project of Ashoka University has conducted a survey of companies listed on the National Stock Exchange over the past few years. It found that companies in our country reported more incidents of sexual harassment in their annual reports in subsequent years, but the rate at which complaints were resolved was much lower than the rate at which they were filed. That is, social laxity is strong in this regard. Although it is often a ‘forgotten issue’ in the eyes of the society, its permanent trauma remains in the mind of the affected woman for a long time, even for the rest of her life.

There is hardly a woman in the whole world who has not been subjected to some kind of harassment. The impacts of harassment are severe and it affects the social stability to a great extent. These incidents are recorded more in large companies, but much less in small or medium companies. If the victim has a higher income level, that person may file a complaint, but as the income level decreases, the probability of complaining naturally decreases since the aftermath of the complaint would bring further emotional drudgery towards the ‘survivor’. A major cause of sexual harassment in the workplace is that this harassment is a way of ‘showing power’ or ‘flexing the hierarchy’. Besides, if the victim keeps quiet about this harassment, then the victim is often rewarded for keeping mum. It is for this reason that female subordinates accept harassment regardless of what their boss or ‘acquaintance of boss’ says otherwise. Power structures are strongly associated with this abuse. Therefore, one needs to reiterate that this power relations are political and therefore prevention of sexual harassment using power remains political.

Studies find that since the COVID-19 pandemic, the gap between the number of reported cases of harassment and the number resolved has been widening. More and more incidents are happening, while fewer incidents are being resolved. According to the International Labor Organization, only a fraction of what happens comes to the limelight. It should be remembered that if the number of reported incidents increases, then what is the status of the actual number of cases? Apart from this, no survey has been done everywhere in the organized sector. Very few people want to talk about it and want this to be known. The Supreme Court has repeatedly said that there is a need to increase awareness about this law. But it is not difficult for us to understand where everything gets stuck. When the source of the problem is power it is evident that the law is prevented from being enforced.

This Act is not yet effective in the case of the unorganized sector especially, domestic helpers, Asha and Anganwadi workers. Although the working women’s movement opposes and strongly condemns any harassments, however, there is a role that social movements do play. It is more important to emphasize that mass movements are needed to amplify in order to actually implement this law and raise awareness about it. As long as such incidents are seen only as personal incidents of the victim, there will be no resolute claim to prevent such a harassment.

Any resolution against an already existing reinforcement of power relation under capitalism is possible through a massive social transition. Movements, especially the ones that binds many sections of the society (Tilottama/ Abhaya resistance movement in West Bengal for example) to such a cause therefore remains an important supporting force towards a feasible implementation of an act that was passed a decade ago.

ENDNOTES

i^A A Bengali version of this note was published at the Marxbaadi Path. Link: kormokhetre jouno henostha rodh ainer ek doshok | কর্মক্ষেত্রে যৌন হেনস্থা রোধ আইনের এক দশক অতিক্রান্ত  | মার্কসবাদী পথ | MarxbadiPath.org

The UN Women Survey report can be accessed here: The Shadow Pandemic: Violence against women during COVID-19 | UN Women – Headquarters

ii Findings from this survey can be found in several news-media articles. A Link: Only 8% employees aware of the PoSH Act, reveals survey, HR News, ETHRWorld