Abstract
A person can experience sexual harassment regardless of their gender, caste, color, or status. Furthermore, sexual harassment has spread beyond the four walls of the home and into the workplace and other comparable settings. Nonetheless, sexual harassment laws in India exclusively address safeguarding women from sexual harassment in its many forms. Every Act has the potential to be abused, and the POSH Act is no exception. The writers want to get a better understanding of this unknown field of study inside the Indian workplace. The clause stipulates that a woman filing a malicious complaint will face the same penalties as a male respondent found guilty. Even with this explicit clause, malicious complaints continue to be filed. The research also addresses the rising concern of malicious complaints filed against male employees which results in losing their hard-earned respect. The study employs exploratory and qualitative research, with case studies from professionals working in various corporate sectors. The major findings of the study underline the urgent need for gender neutral laws and some amendments in the POSH Act to safeguard men’s rights and protect them from exploitation. The paper advocates for a collective effort to recognize and support all victims of sexual violence, regardless of gender, to ensure a safe and inclusive work environment for all individuals.
Keywords: Sexual Harassment, Malicious Case, Workplace, POSH Act,
Introduction
In India, there are constitutional safeguards against sexual harassment in the workplace. However not referenced explicitly, impliedly it is covered under Article 21 of the Indian Constitution ensuring ‘Right to life and personal liberty’. The more extensive meaning of the article guzzles the option to live with respect that guarantees to live being liberated from a wide range of discrimination anywhere within the territory of the country. Not restricted to that, the Indian Constitution being the biggest drafted constitution gives a few other principal freedoms to its residents including ‘Equality of status and opportunity’ engraved within Article 14 to 18 of the Constitution. Likewise, simultaneously, a unique arrangement for women and children is incorporated under clause 3 of Article 15 of the Indian Constitution which permits states to make special laws for women and children as they are considered under the category of weaker sections of society. The previous late years have imagined a spike in instances of abuse of women that gave a stage for a few women centric laws to be brought into force. The ‘Visakha case’ was the turning point for the judiciary to act upon the rising number of complaints of sexual harassment at workplaces. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH), which was passed in 2013 as a result of the Vishakha ruling, offers a legal framework for preventing and redressing instances of sexual harassment against women in the workplace. The Act covers sexual harassment broadly, including exhibiting pornographic material, making unwanted physical approaches, and making sexually suggestive comments or gestures.
Research Methodology
This paper is of a descriptive nature and is based on Doctrinal Method where Articles are the primary source.
Brief Analysis of the POSH Act and its Rules
Bhanwari Devi, a social worker, was subjected to gang rape because she opposed child marriage in Rajasthan. Women’s rights advocates (Vishakha) brought this lawsuit as a Public Interest Litigation (PIL). According to Articles 14, 19, and 21 of the Indian Constitution, which guarantees the right to equality, life, and liberty, sexual harassment is considered a violation of basic rights, according to the Supreme Court. Before official legislation was passed, the court created guidelines (known as the Visakha guidelines) to prevent and resolve sexual harassment in workplaces. After 16 years of the case of Vishaka and Ors. V. State of Rajasthan and Ors. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted. The main objective of this act was to protect women from sexual harassment in the workplace. This act made it compulsory for the organization to form an Internal Complaint Committee (ICC) where any woman can file a case if she faces sexual harassment in the workplace. The Act defines sexual harassment as any unwelcoming act or behavior namely physical contact, demand for sexual favor, making sexually colored remarks, or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. The Delhi High Court in the case of Shanta Kumar v. CSIR held that “Undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behavior. Such physical contact must be in the context of a behavior that is sexually oriented. A mere accidental physical contact, even though unwelcome, would not amount to sexual harassment. Similarly, a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment.” Although if the case is found to be malicious the complainant will be punishable as per Section 14 of the Act.
Legislation prone to Misuse
In India, there has been misuse of these legislations and this has led to a general perception that these laws are made in favor of women. This general perception motivates women to file malicious cases against men for their personal gain and in return results in a man losing his hard-earned respect. Even men are prone to sexual harassment but there are several reasons why male employees may experience sexual harassment at the workplace. Some possible factors include a culture that normalizes sexual harassment, power imbalances between employees, and an organizational culture that allows or even encourages such behavior. Sometimes even the Internal Complaint Committee (ICC) does not hear the respondent which violates the principle of natural justice, for instance in the case of Vineeth V V v. Kerala State Electricity Board Ltd. the copy of the complaint was not received by the accused and the inquiry against him was conducted contrary to the Rule 7 of the POSH Rules, for which The Kerala High Court quashed the inquiry report.
Literature Review
This segment highlights the news articles, research papers, and journals referred to. News articles by Live Law show how the ICC or LCC make mistakes in investigation by not following the principle of natural justice. The articles and research papers depict how women employee files malicious complaints and how this affects male employees, They also talk about certain measures that can be taken to prevent these loopholes.
Case Law
In the case of Anil Rajagopal v. State of Kerala and Others, the High Court of Kerala ruled that using intemperate language in a report about a female employee doesn’t amount to sexual harassment. The court clarified that for an act to be considered sexual harassment under the POSH Act, it must be connected with sexual undertones. The court concluded that the complaint against Rajagopal wasn’t maintainable under the POSH Act and quashed the committee’s recommendations.
In the case of Sukalyan Haldar Vs. State of West Bengal and Others The school Secretary was booked under the POSH Act for calling a colleague ‘faltu meye’ to which the Calcutta High Court said that the expression ‘faltu meye’ can be used in various contexts and it did not find the appropriate context in which it was used. The court also held that the accused was not given the opportunity of being heard and ordered the LCC to give both parties ample opportunity to be heard.
Example case laws:
Dr. Dhingra while doing her research came across some complaints from different organizations which are as follows:
In a certain case, the female employee (petitioner) filed a sexual harassment case against four male colleagues (respondent) for sexually harassing her by sending her test email saying “hello” instead of “test mail”, placing his hand on her shoulder in a crowded area, receiving a call on Sunday morning and by her colleague calling her by tapping her shoulder respectively. During the investigation, no evidence was found to support the harassment claims and it was found that the complainant intended that she wanted to take a leave of absence and that she intended for it to be paid leave, abusing the clause that allows a woman to get up to three months of leave in addition to all other breaks while the inquiry is ongoing. In its final verdict, the ICC recommended to the employer that the complainant should be terminated and should give an apology letter to all four respondents.
There was another case a woman filed a sexual harassment complaint against the HR head and MD of a large organization. The complainant stated that she was forced to work late by the HR Head and MD, who had made sexually suggestive phone calls to her late at night, she also claimed that there were no female guards during these meetings. The complainant provided the attendance log with late night entries as evidence also, a junior colleague confirmed the late hours but could not hear the conversation due to a separate cabin. To which the respondents presented their evidence of extensive documentation spanning over two years which revealed that the complaint was sending goods to a different distributor with whom they were personally acquainted. When the complainant was questioned, a polite resignation was extended to them. In the beginning, the complainant conveyed her appreciation for the experience and her wish to come back later. Only after paying off a business debt did the complaint surface. The Local Complaints Committee (LCC) ruled in favor of HR and MD concluded the complaint to be malicious and ordered the complainant to give a written apology admitting a false claim and settlement of the outstanding company loan.
Another case involves a female employee who initially complained of mental harassment due to work pressure but later escalated to sexual harassment. When her supervisor called her after work to discuss deadlines, the employee felt under pressure. After discussing the matter, HR came to a “mutual settlement.” The employee said that her supervisors had called her to his cabin too often for reasons unrelated to work, looking at her strangely, forcing her to relocate closer to the workplace, and improperly touching her in the vehicle. Coworker witness testimony and a voice recording were used as evidence. Investigating was done by the Internal Complaints Committee (ICC). While they refuted other allegations, colleagues confirmed the relocation idea. A crucial witness, a friend, attested to the vehicle trip but said the worker turned down a ride home. Discrepancies were found: Written in legalese, the employee’s complaint appeared to have been prepared well. The employee gave off the impression that the hearing was manufactured. the last accusation seems to be made up. The ICC came to the conclusion that the complaint was malicious and meant harm to the supervisor. The ICC suggested the employee apologize to the manager, the employee’s employment is terminated and the organization offers a childcare facility.
A woman consultant employed at TCS in Mumbai.
When the researcher met with Miss Akansha Jain, she confessed that she had read about sexual exploitation in a written document. She’d read about it online. She is aware that TCS provides Posh training to every employee every six months. She went in 2021, the year she started working for the firm. When the researcher inquired as to which gender is more commonly exploited, she spoke up in favor of women since she could remember a situation involving a coworker. She recalled that the crew had celebrated the holidays at the office a few days earlier, and everyone had had a great time. One of the male team members tried to initiate a discussion with her by contacting her friend the next day. Additionally, he attempted to use the texts to convey some flirting remarks. She didn’t respond to his messages. After receiving a warning from the management a few days later, the individual apologized for his mistakes and promised never to repeat them again. On the other hand, the management decided to fire him. Akansha already knew about the ICC panels. When the researcher asked her if a guy had been engaged in this situation, she said “no,” and he would have answered similarly. If the man had protested, maybe the woman would have had another chance to put things right. Because under these circumstances, men’s voices are rarely important. Additionally, she stated that the number of malicious Posh cases is rising daily and that internal complaints committees are having difficulty curbing the amount of malicious or fictitious cases since they expose innocent men to social disgrace. Men are not coming out with their concerns, and they are not given any weight.
HR Coordinator of UDAIPUR’s Seva Mandir.
Because Mrs. Ratna Jain had worked as a Human Resource Associate in HRD (Human Resource Development) for the past seven years, she was quite educated about the POSH Policy when the researcher questioned her about it. She informed the researcher that although this regulation applies to both sexes, males are less likely to make complaints because they fear losing their jobs. She said that she had attended her first POSH course three months before when asked when she had done so. She assisted the ICC committee in preparing the training module and took part in the planning committee. She continued by saying that the department’s weakness was that these kinds of training were only available to head office staff. The researcher asks her, Does the POSH Act Create Bias Against Men in General? The woman responded that there was a clear bias in society against men in these kinds of situations and that internal complaints committees within the organizations were also handling or looking into cases as a result of social pressure from remarks like “A woman can never lie about such things and if she says so…the guy must have done it.” What kinds of societal trauma do guys face?
Both men and women experience some level of anxiety when it comes to exploitation; in some situations, women are subjected to both sexual and gender exploitation, while males experience the pain of being the weaker gender’s target or being labeled as criminals even when they are not. Women have historically been viewed as the weaker sex, even if this isn’t usually the case nowadays. Nevertheless, many people still hold this belief. Based on these situations, detractors claim that the POSH Act has exacerbated the anti-male prejudice in society, which occasionally results in the needless humiliation of blameless men in the event of malicious allegations. The culture of name-and-shame and societal judgment has persisted in its growth, and many innocent guys have suffered the humiliation that results from it. People often make drastic decisions as a result of humiliation when it gets intolerable.
This pie chart shows data collected from a survey that gives us information on whether are women employees aware of the POSH Act and do they exercise it. Here it shows that around 70% of women employees have exercised their rights by the POSH Act but the question is whether these rights are being used to prevent sexual harassment or are used to take undue advantage of the law made for their protection. As this Act only protects women and several malicious complaints have been filed by women for their gain this becomes the question of the hour.
SUGGESTIONS
- Gender-neutral sexual harassment laws shall be brought into force.
- The term “aggrieved woman” should be replaced with “aggrieved person”.
- Regardless of gender, employers should ensure that the working atmosphere is suitably conducive for all workers to work comfortably.
- Immediate action must be taken when a male employee complains about sexual harassment at the workplace by women co-worker.
- The ICC should give both parties equal opportunity to be heard and adhere to the principle of natural justice.
- The ICC or LCC should also consider the context in which any word is been used and adhere to its literal meaning while investigating any complaint.
- Research on crimes perpetrated especially against males should be carried out by distinct commissions, and the same is true for crimes committed against women.
- Sexual abusers, whether male or female, should face the same penalties without exception.
- Maintain centralized data on POSH complaints and outcomes to identify trends and areas of outcomes.
- Regular awareness campaigns about the POSH Act.
CONCLUSION
Thus far, the study article’s setting has provided compelling evidence that sexual harassment is not gender specific. However, the majority of people go with the flow. As a result, it might be challenging for people to comprehend that males can also experience sexual harassment in India, where the laws pertaining to the matter are mostly focused on women. It’s critical to remember that sexual harassment is a severe problem that can affect a victim’s physical and emotional well-being, employment prospects, and social interactions for a long time. Those who are the targets of malicious complaints have some rather severe effects. Therefore, an attempt needs to be made to close the gaps. In order to address sexual harassment of women in the workplace, the Act requires immediate action to implement its requirements and to amend the legal and constitutional framework, provided that the allegations are sincere. In the workplace, female supervisors or male coworkers are typically the ones who commit sexual violence against males. Men could be requested to remove their shirts, or there might be a quid pro quo that is comparable to what women go through at work. Men must suffer in silence but women have recourse to stop various forms of harassment. That is the only distinction. It’s time to enact gender-neutral legislation, bring about equality, and do away with these regulations that discriminate against certain genders. males’ rights should be protected in the workplace on an equal basis with women’s rights, and the Sexual Harassment at Workplace Act 2013 should include males as soon as practicable. Male sexual exploitation is a grave human rights violation that is far too often disregarded or concealed. Research on male sexual exploitation has often overlooked the experiences of men and young people who identify as non-binary. Because of this disparity, expanding the field’s research is crucial to improving prevention, service delivery, and policy initiatives. Only making amendments to the law will not suffice but also it is the duty of the employer to create a safe and respectful working environment so that there won’t be any need to file any sexual harassment complaint. Also, employees should be given training programs on the consequences of filing a malicious sexual harassment complaint. Employers should also have explicit rules in place for handling complaints of sexual harassment, treat all complaints seriously, and conduct in-depth investigations into them without regard to a worker’s gender.
Author
Hardik Garg
SVKM’s Pravin Gandhi College of Law, Mumbai.