Do you remember the last movie you saw in the theatres? Mine was “Thappad” – starring Tapsi Pannu. It is a well-made, women-centric movie which addresses, rather reminds the viewer of the many awful, ubiquitous yet latent, trends in the society, which were (and arguably still are) mostly accepted as a generic, “no need to fret about”, norm… Read More »

Do you remember the last movie you saw in the theatres? Mine was “Thappad” – starring Tapsi Pannu. It is a well-made, women-centric movie which addresses, rather reminds the viewer of the many awful, ubiquitous yet latent, trends in the society, which were (and arguably still are) mostly accepted as a generic, “no need to fret about”, norm and a taboo.

For instance

  1. lack of respect to the homemaker wives;
  2. over-dependence on females of the house for everything from household chores to packing for travel;
  3. prioritising a man’s need (or requirement) over the woman; and of course
  4. the occasional abuse or “thappad” from the men (and in some cases from the women too) of the family.

These “generic norms” are more visible and obvious in rural/small-town India, but are certainly as much a part of the urban and “educated” India as well. The conclusion of the movie may be debatable, but the message, pretty loud and clear. Oh yes – I should clarify here that I do not mean that it is only the women who are always suppressed or controlled, but certainly (and unfortunately) the ratio is in their favour.

That February 2020 release would remain my last cinema watch for I don’t know how many more months. In March 2020, we saw the beginning of the COVID lockdowns, and amongst many sea changes, the country also saw a swift move from workstations to “work from home” culture. Many philosophers have termed humans to be “a funny creature”, and I wouldn’t agree any less.

For years and years, we kept deliberating over ideas of work from home culture, online meetings for outstation participants, e-filings in courts and online court hearings to provide better access to justice, but year after year such deliberations barely led to any visible change. Suddenly, with a swift stroke of the famous (and sometimes scary) “Address to the Nation by the Prime Minister” everything changed. Everyone began adapting to the new software and applications, understanding the nuances of online meetings, investing in better computers, tablets, Wi-Fi, scanners, ear-phones, study tables and conformable chairs, etcetera.

The “work from home” culture definitely has numerous advantages but with utmost certainty, has the same drastic fallouts too. This piece proposes to address one such predicament – the rising trends of sexual harassment cases. To understand the concept, it is imperative to note that other than the relevant provisions of the Indian Penal Code, the realm of “sexual harassment at workplace” is governed by the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the POSH Act“).

The POSH Act came into force after 16 long years of the famous Vishakha Judgment[1] by the Hon’ble Supreme Court. The Act provides that “sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-

  • physical contact and advances; or
  • a demand or request for sexual favours; or
  • making sexually coloured remarks; or
  • showing pornography; or
  • any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The POSH Act further provides that the following, amongst other circumstances, if it occurs, or is present in relation to or connected with any act or behaviour of sexual harassment, may amount to sexual harassment:-

  • implied or explicit promise of preferential treatment in her employment; or
  • implied or explicit threat of detrimental treatment in her employment; or
  • implied or explicit threat about her present or future employment status; or
  • interference with her work or creating an intimidating or offensive or hostile work environment for her; or
  • Humiliating treatment likely to affect her health or safety.

In the backdrop of these defined instances, one may observe that COVID has not only moved the workplaces to home but in some cases, the “sexual harassment” too. Thus, for beginners, it is relevant to have clear answers to at least the following questions:-

Q. Whether or not the POSH Act applies in work-from-home scenarios? A. The answer, in my opinion, is “yes” as the term “workplace” mentioned in the POSH Act recognizes the fact that sexual harassment may not necessarily be limited to the traditional office set-up, and thus could be extended to the concept of an extended workplace.
Q. Are interns, trainees, contractual or temporary employees covered under the POSH Act?

A. Yes, they are covered.
Q. Whether online recording to substantiate the conduct of sexual harassment admissible in court? A. Yes, in fact, it is advisable to have the recording or screenshots or emails or chat histories to substantiate the allegations.
Q. How should the allegations of sexual harassment be reported? A. A complaint must be lodged against the Internal Complaints Committee (ICC) or Local Complaints Committee (LCC), as applicable, for further action.
Q. Can the complaint of “sexual harassment” be made only against the co-worker or any other person too? A. Under the POSH Act, only against the co-worker, however, a complaint can be made against anyone else under the provisions of the Indian Penal Code.
Q. Is the POSH Act gender-neutral? A. No, unfortunately, it isn’t.

It is unfortunate that despite there being such protection under the POSH Act, it is hardly a deterrent to the sexual offenders at work. The instances of “sexual harassment” in the “work from home” environment have risen to the highest levels of disgrace, for instance:-

  • Attending online meetings with his female colleagues, shirtless;
  • Taking screenshots of meetings attended by female colleagues, for no professional purpose;
  • Insisting female colleagues to attend online meetings at odd hours and insisting them to switch on their video feed;
  • Showcasing sexually advancing backgrounds or attending calls while laying on bed;
  • Sending flowers and gifts home along with office files;
  • Calling female colleagues home on the pretext of work; and many other such instances.

The list may go on and on and on. However, the idea is not to narrate the instances which are forbidden under the law, the idea is to create the requisite sensitivity towards your female colleagues. We all are going through unprecedented times and many of us are already facing mental health challenges, including loneliness, anxiety, “FOMO”, internet and phone addictions.

Societal consciousness for providing a healthy “work from home environment”, especially for female colleagues and awareness qua the remedies available against any untoward actions, is imperative. The Hunan Resources department, the employers, the managers and we, the society at large, need to take this problem very seriously and dump the casual approach vis-à-vis the repercussions of violating the POSH Act.

I would want to end this piece with information and a question. The information being that “Under the provisions of the POSH Act, it is mandatory for any organisation which has more than 10 employees, to have an Internal Complaint Committee” and the consequential question being “How many such organisations do you know, who are adhering to this mandate?”

Author: Mr. Jasmeet Singh, Advocate on Record, Supreme Court of India Managing Partner, Chamber of Joshi and Singh.
Co-Author: Ms. Ruhsheet J. Saluja, Advocate, Delhi High Court and District Courts (She is also presently empanelled with Delhi State Legal Service Authority, and has experience of working extensively in the legal cell of the Delhi Commission for Women)

[1] Vishaka and Ors. v. State of Rajasthan and Ors.; AIR 1997 SC 3011

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Updated On 22 July 2021 7:11 AM GMT
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