Vishakha Guidelines and the PoSH Act
The Supreme Court of India in Vishaka v. State of Rajasthan observed that:
“Equality in employment cannot be achieved if women are subjected to gender specific violence at the workplace, such as sexual harassment.’’
Before the Vishaka guidelines, an aggrieved woman could only approach the court under the penal provisions of Section 354 and 509. The guideline formulated now puts the onus of providing a safe working environment on the employer. The guidelines for the first time recognised sexual harassment as a human rights violation.
Thus, the mechanism to formulate a committee to evaluate such complaints in state institutions was adopted. For more than a decade, these guidelines were considered the safeguard of women’s rights. Then the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted.
What is a workplace under the PoSH Act?
According to Section 2 of the PoSH Act, ‘workplace’ is defined as both private and government institutions. This includes:
- Department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established by the government
- Any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation
- Unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities
It is applicable to both the organised and unorganised sectors. This includes organisations carrying out commercial, vocational, educational, entertainment, industrial, and financial activities. Additionally, it also includes hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals. Finally, it also applies to a dwelling place or a house.
Can a company appoint a foreign national on the IC?
The act is silent on appointing a foreign national to the IC. Due to the absence of any specific restriction to this effect, a foreign national residing in India may be permitted to be a part of an IC, provided they meet certain criteria set out in the act.
Which under the act can be interpreted as, the person should be presently employed at the workplace by the employer. The appointed person must have an understanding of the social context in which sexual harassment has to be viewed. Such an employee should be sensitised to the social realities in India and uphold the criteria.
Is gender a criterion for appointing external members?
The act does not specify the gender of the external member. However, they should have the skills to deal with workplace sexual harassment. Along with having a legal understanding of the implications of sexual harassment at work, the person should be fair, empathetic and well-informed. The person should be without any criminal history or charges of sexual offences.
What should be the criteria to appoint an external member?
The act was composed with the core principle of protecting and upholding the fundamental rights of women. Additionally, many companies are using the act to protect employees from the LGBTQIA+ community from sexual harassment. An external member should have a legal understanding and sensitisation. This is crucial to POSH implementation.
We answer all your questions about PoSH compliance and go one step ahead. Reach out to us at hello@serein.inc.