POSH Act makes it very clear that confidentiality of the complaint and the proceedings should be maintained.
Section 16 of the POSH Act states:
Prohibition of publication or making known contents of complaint and inquiry proceedings. — Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner: Provided that information may be disseminated regarding the justice secured to any vicitim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.
We must understand that POSH Act stipulates Confidentiality and not complete Anonymity. Since the Internal Committee follows the principles of natural justice all documents involved in the inquiry should be provided to both the complainant and the respondent. It is impossible to provide complete anonymity to the parties and also share the entire details of the case with each other. It must also be noted that since most of the sexual harassment cases are individual experiences, the narration of incidents could reveal the identity of the parties/witnesses involved even if names are concealed.
Following information should not be made to known to public, press or media.
Anyone contravening the provision of confidentiality will be liable for penalty in accordance with the service rules. In the absence of a service rule, the employer can impose a fine of five thousand rupees for breach of confidentiality.
Flow of information can be prevented only by taking pro-active steps. During the regular POSH trainings for employees, emphasize on the importance of maintaining confidentiality. Communicate the serious consequences to the individuals and the organizations, if the information is leaked.
The complainant might have spoken to her manager, the HR or the Grievance Redressal Team before reporting to the IC. They might have also informed a close colleague or friend about the incident. It is also possible that the witnesses told others about the incident. The information will quickly spread through office grapevine.
Therefore, a confidentiality clause should be included in the POSH policy to ensure that employees who hear about incidents do not make the information known to others. It should also include the penalty for breach of confidentiality. IC must ensure that all the employees are aware about these.
Apart from the complainant, respondent and witnesses, some people in the organization like managers, HR and the employer would know about the incident. When information must be shared with anyone in the organization, get non-disclosure agreements signed by them and restrict the flow of information on a need-to-know basis.
If the complainant or the respondent is unhappy about the findings of the Internal Committee or the implementation of the recommendations, they can go for an appeal.
Section 18 of the POSH Act states that:
Appeal.—(1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or sub-section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.
can file an appeal to the appropriate court or tribunal. The Appellate Authority for sexual harassment cases under the POSH Act is same as the appellate authority designated under Industrial Standing Order Act, 1946.
The organization can also form an Appellate Committee to review the findings of the IC. It is important that the IC Members who did the inquiry for the case are not part of the appellate committee. The Appellate Committee formed by the organization are not bound by the POSH Act. They are bound by the Service Rules of the organization and will act as per the Service Rules.
The appeal should be made within ninety days since the date of recommendations from the IC.
Section 18 (2) states:
“The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.”
A safe workplace is a woman’s legal right. Preamble to the Constitution of India mentions that “equality of status and opportunity” must be secured for all its citizens. Equality and personal liberty of every person under the law is guaranteed by Articles 14, 15 and 21 of the Constitution.
Sexual harassment at workplace is an infringement of the fundamental rights of a woman and goes against the spirit of Article 19 (1) (g) of the Constitution of India which states that every citizen of India has the right “to practice any profession or to carry out any occupation, trade or business”; as in many cases sexual harassment at workplace prevents women from working.
So, there was a necessity to enact a powerful law that mandates all workplaces in India to provide women with a safe and secure working environment free from sexual harassment.
The POSH Act is modelled on the legally binding guidelines laid down by the Honourable Supreme Court in the case “Vishaka vs. State of Rajasthan (1997)”, commonly known as the Vishaka Guidelines.
A lady named Bhanwari Devi was engaged by the state of Rajasthan to prevent the evil practice of child marriages. Her work was met with resentment and she was gang raped in 1992. The Bhanwari Devi case revealed the ever-present sexual harm to which millions of working women are exposed across the country, everywhere and everyday irrespective of their location.
Based on the facts of Bhanwari Devi’s case, a Public Interest Litigation (PIL) was filed before the Supreme Court by Vishaka and other women groups against the State of Rajasthan and Union of India. It proposed that sexual harassment be recognized as a violation of women’s fundamental right to equality and that all workplaces/establishments/institutions be made accountable and responsible to uphold these rights.
In the judgment passed in this case, the Honourable Supreme Court defined Sexual Harassment with examples, placed responsibility on employers to ensure that women did not face a hostile environment and directed them to establish a redressal mechanism in the form of Complaints Committee which will look into the matters of sexual harassment of women at workplace. The guidelines extended to all kinds of employment, from paid to voluntary, across the public and private sectors. Vishaka Guidelines provided critical visibility to the sexual harassment issue that was not taken seriously earlier.
Enactment of POSH Act is a huge milestone in the long fight against the menace of sexual harassment of women in the workplace. Since POSH Act was enacted specifically to deal with sexual harassment of women at workplace, it is extremely favorable to the aggrieved women. It’s high time we join hands to spread the awareness about POSH Act and its implementation which will pave way for creating respectful and safe working environments.