POSH ACT, ONLINE INTERNSHIPS, AND A FEW RECOMMENDATIONS
In this era of Covid – 19, with the pandemic affecting every single sphere of life, the most noticeable change would be in the increase of physical distance between people and the "onlinification" of education and work including internships. But even now in such difficult times when disaster has left no stone unturned, women continue to deal with workplace sexual harassment, women aren't safe from such predators even in their own homes miles away.
The world shifting its activities online came as a blessing in some ways, internships became more accessible to all students and gave everybody that extra free time to be productive and learn something new, and essentially, more students started applying, and as the competition increased, they started taking any and every internship available to them, but this also came with its dark side where some people took the chance to exploit naïve students by charging them for internships, making the interns do meaningless tasks, etcetera, but the worst came when people who call themselves advocates and are expected to be the ones who know the law and exhibit utmost professionalism became predators who used the façade of internships to send inappropriate text messages to the female interns.
Recently we saw, a few female law students sharing their horrific experiences with online internships where the advocate they interned under exhibited inappropriate behaviour by sending the female interns unfitting WhatsApp messages. Wishing the interns good morning every day seems harmless, but gets creepy and weird when a middle-aged man sends nineteen and twenty-year-old girls "good morning dear" texts with the kiss face emoji attached and even replies to the WhatsApp status calling them "pretty", saying "cute pik" and "nice abs", it gets worse when the person goes to the extent of following the female interns on social media and commenting "sexy" on their posts. Being physically away made no difference and these young women were still subjected to sexual harassment at the workplace even before they started working.
In light of the above-mentioned issue, it is important we know about our laws and lawful redressal mechanisms to take shelter under when faced with similar experiences. India does have an entire statute dedicated towards the prevention of workplace sexual harassment of women – THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION, AND REDRESSAL) ACT, 2013, or well-known as the POSH Act which followed the Vishaka guidelines established by the Supreme Court in the landmark case of Vishaka & OR’s vs State Of Rajasthan & Ors (1997).
Looking at the extent of applicability of these laws in the above-explained scenario, we can see that Section 2(f) defines the term employee as "a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name;" which definitely includes interns though not explicitly mentioned, they fall under the category of apprentice or trainee.
Looking further; Section 2(n) of the act defines sexual harassment as: "any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;"
and the act of sending inappropriate text messages or using emojis is definitely covered under the act even if not explicitly mentioned, the courts have always interpreted point (v) widely and the scope of the definition is rather large. Advocate Pallavi Pareek said, "Often, we have to explain to men why it is not acceptable to send emoticons or GIFs of hugs and kisses to their female colleagues" speaking about how even WhatsApp messages constitute sexual harassment.
We can also observe that in the case of Ayesha Khatun v/s The State Of West Bengal & Others(2012), the Calcutta High Court said "Workplace should be given a broader and wider meaning so that the said (Vishaka) guidelines can be applied where its application is needed even beyond the compound of the workplace for removal of the obstacle of like nature which prevents a working woman from attending her place of work and also for providing a suitable and congenial atmosphere to her in her place of work where she can continue her service with honour and dignity." This provides for a wide interpretation of workplace and includes remote work or online work or work from home under its purview too.
According to the POSH act, these students can seek redressal for the discomfort caused to them, Section 9(1) of the act reads "Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident". Accordingly, these students can file a complaint either in the internal committee of the firm or to the Local Committee who will then investigate the case after hearing both parties, in this case, the definitive proof of the text messages can be presented.
Section 12 of the Act provides for temporary recourse until the investigation is concluded by providing provisions of transfer of aggrieved parties to different locations or in some cases to different teams, by granting leave for a period of 3 months or any other respite that the internal committees may deem appropriate.
Once the investigation is complete and the committee finds the person guilty of sexual harassment, Section 13 of the act directs the internal or local committee to recommend to the employer or the district officer, to either take appropriate action according to the service rules set up at the workplace and in case such rules do not exist, then any manner as they may deem fit, or to deduct the salary or wages of the party involved in such harassment, in cases where the employee has left the workplace or has been terminated from the job as a result of the particular misconduct, then the aggrieved party is entitled to a monetary compensation to the sum of money decided by the committee.
Section 15 of the POSH Act lays down factors based on which the compensation is to be decided and they are –
"(a)the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
(b) the loss in the career opportunity due to the incident of sexual harassment;
(c) medical expenses incurred by the victim for physical or psychiatric treatment;
(d) the income and financial status of the respondent;
(e) feasibility of such payment in a lump sum or in instalments."
In certain cases, if the harassment is of a more serious nature, then the aggrieved woman can even take recourse under the Indian Penal Code and Information Technology Act, 2000 in case the harassment was online, after filing an FIR regarding the same at the appropriate police station.
At first look, the POSH Act of 2013 may look perfect but on deeper enquiry, we find that there is scope for a lot of improvement in the legislations concerning workplace sexual harassment, the most obvious change that could be expected is that of making the laws gender-neutral, although it was aimed at protection and redressal for women, following the Vishaka guidelines, and explicitly mentions the same in its title, it is high time we realize that men and trans people can face sexual harassment at their workplace too, providing men and trans or non-binary people the same redressal and benefits or protection is also important, even if the cases regarding men are not very common, completely ignoring the ones that do occur does no good. Gender-neutral laws are more inclusive and also much needed in a fast-progressing society such as ours.
A few other important changes that will be welcomed in the POSH Act would be the explicit mentioning of online or remote or work from home under the definition of workplace, although the act already allows for a liberal interpretation of workplace, the clear mention of these terms would give no scope for exploitation of the ambiguity or non-inclusion of the harassment that occurs online or via phone call or any other non-physical medium when the employees are probably working from home, as most of us are in unprecedented times such as these especially.
Another aspect that could be made more specific would be the addition of or specific mention of text messages including emojis or emoticons or stickers or GIFs and telephone conversations under the purview of the definition of sexual harassment, Section 2(n)(v) of the act does mention non-verbal conduct of sexual nature, but it still gives room for ambiguity with respect to use of certain emojis or stickers sent via text messages. Eliminating all exploitable loopholes and making the laws more specific while still allowing for liberal interpretation would bring out the maximum utility of the laws, helping it achieve the goals it was aimed at achieving and brought to existence for.
Adding another suggestion in making the laws effective, it would be of good use to make it compulsory or mandatory to establish unbiased internal committees within the workplace adhering to the guidelines laid down in Section 4 of the POSH Act, organizations failing to set up such a committee within a specified time of its inception must be liable to a strict fine, this would indicate the seriousness of the issue and also exhibit the commitment of the organization towards building a harassment-free working environment for all its employees.
And to address the main reason why harassment still occurs in such modern times, it is due to the lack of awareness, it must be made mandatory for organizations to take it upon themselves to educate all of their employees on behavioural standards and appropriate office etiquettes and the redressal options available to the aggrieved and also make them aware of the adverse consequences that will be faced by the perpetrators if they exhibit unprofessional behaviour making their colleagues uncomfortable and polluting the work environment. Constant reminders in the form of team meets or activities or seminars must be organized by the Human Resource departments of all organizations, this could to a large extent help deter unbecoming conduct.
On observing the previous cases which have applied the principles of either the Vishaka guidelines or the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in delivering judgements, we can see that the courts have always chosen the broader approach and interpreted clauses in ways that are most suitable to achieve justice for the victims. The court's task becomes much easier and the proceedings will last for much lesser time if the above-suggested recommendations are brought in and implemented.
In conclusion, it could be said that although there is redressal or recourse available to women who have faced sexual harassment at their workplaces, what is really of grave concern is that just receiving a sum of money does not alleviate the trauma caused, and especially in cases like these when it involves young women who have not even stepped out of college and started establishing their careers yet are faced with such scenarios it does more damage than one can imagine, it demotivates or deters more young women who have huge aspirations and dreams, even if the laws may help up to some extent, the full positive effects of these laws can only be observed when the internal committees are set up at every workplace and the organization makes every conscious effort possible to implement strict rules and lays down all the necessary guidelines aimed at keeping the staff safe, educated and aware.
2nd year, BA LLB
BMS College of Law, Bengaluru