The Prohibition of Sexual Harassment Act 2013 (“POSH”) was enacted to ensure safe working spaces for women and to build enabling work environments that respect the working woman’s right to equality of status and opportunity. Sexual harassment, as defined in the POSH is any unwelcome, sexually determined physical, verbal, or non-verbal conduct, and these can take on new dimensions in a world of video calls and the lack of a fixed “end” to the day. Sexual harassment is not only a violation of dignity, right to social security, and right to equality guaranteed to human beings in every social system but it is also a violation of the right to life and peaceful existence which is guaranteed by the law. In India, an offence against women is an indication of the historically unequal power relations between men and women, which have led to domination over and discrimination against women by men.
Sexual harassment is one of the ways that men refuse gender equality at the workplace and it also creates an unfavourable environment for working women. Sexual harassment often reflects an abuse of power within an organization, where members of one group yield greater power than others, generally women. It is a hazard, which could be often seen in workplaces across the world that reduces the quality of working life, endanger the well-being of women and men, and undermines gender equality. So, it is an extended version of the patriarchal violence, at home and in society, at large.
The rapid growth in industrialization and the advent of globalization led to the improvement in different fields, i.e., women in India are taking up more and more opportunities. Today, women are demonstrating progress in large numbers in workspaces like instruction, financial aspects, governmental issues, media, workmanship, space and culture, administration areas, science and innovation, and so forth. As the job of women has moved from household work to modern work, offences against women have expanded exponentially. In spite, of rising rates of sexual harassment, their reporting is quite low as women dread the loss of individuality and the fear of being subjected to unwarranted social disgrace.
Virtual harassment is construed as personal comments on the person’s social media handles; inappropriate emojis and messages; stalking, threatening about performance ratings; insisting on video calls well after office hours; inappropriate or sexist jokes to ‘lighten’ the mood; not maintaining dress-code during video conferences and calls; undefined work hours, non-consensual image sharing, bullying, trolling, online reputation damage cases have also started surfacing, which are not given much concern. These problems were raised through state introduced mechanisms or the National Commission for Women at different places under various acts for protecting women from physical abuse but due to lack of judicial faith, it has not been tackled yet.
Expanding the ‘Workplace’: The Dawn of Telecommuting
POSH defines ‘workplace’ as “any place visited by the employee arising out of or during employment, including transportation provided by the employer for undertaking such a journey”. Section 3 provides that no woman shall be subjected to sexual harassment at any ‘workplace’. It is apparent that an important facet that requires determination is the scope of what comprises a ‘workplace’ under POSH. Any misconduct in question that may qualify as sexual harassment in terms of POSH, but which occurs outside the workplace, may not typically attract the provisions of POSH. The definition of ‘workplace’ under Section 2(o) is inclusive and non-exhaustive and includes any place visited by the employee arising out of or during the course of employment, including a dwelling place or a house. This allows discretion to the relevant adjudicating authority to determine the exact scope of the ‘workplace’ in the facts and circumstances of each case, as and when such determination becomes necessary.
In the landmark case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja & Ors., the Supreme Court opined on the applicability of the theory of ‘notional extension’ of the employer’s premises. It was held that the theory of notional extension applied to an employer’s premises to include an area which the workman passes and re-passes in going to and in leaving the actual place of work. The Supreme Court also clearly set out that the scope of such extension of workplace would have to be determined in the facts and circumstances of each case. However, it can be reasonably concluded that an employer’s premises were not restricted to the strict perimeters of the office space and could be extended beyond such physical territory.
In the case of Saurabh Kumar Mallick v Comptroller and Auditor General of India and Anr., the Delhi High Court stated that a narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression “office” that is a place where any person of the public could have access. Therefore, each incident of sexual harassment at the workplace has to be considered in the facts and circumstances of that particular case and the definition of a workplace cannot be generalized to include all residences within the meaning and ambit of the workplace, at it may lead to absurdity. Further, the test laid down to determine a particular place is a workplace or not (by the Tribunal in this case), is the proximity from the place of work, control of management over such place/residence where the working woman is residing; and such a ‘residence’ has to be an extension or contiguous part of working place. At the same time, for proceeding against an employee in a departmental inquiry, a sweeping definition of ‘workplace’ is not necessary where it is interpreted to include the conduct of an employee which would have no relation to work and private disputes are not to be included.
Similarly, in its decision in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, when the issue of the scope of workplace arose, the Bombay High Court deemed it necessary to interpret the scope of a workplace to be beyond the literal physical workplace. In this background, it was held that the mode and manner in which the basic concepts are exploited by it, leave no manner of doubt that the design of the Parliament is to provide safety and security to women at all workplaces. When the intention of the Parliament is very clear, it becomes even more evident that the definition of the workplace under POSH is inclusive and again deliberately kept wide to ensure that any area where women may be subjected to sexual harassment is not left unattended or unprovoked for.
Dwelling Place as Workplace: Cyber Legislation
The term “dwelling place or house” in a sense relating only to domestic help/servants would be narrow and restrictive and needs to be avoided to ensure equity. The dynamic approach herein would be to broaden the scope of the definition of ‘workplace’ to ensure the inclusion of telework and afford protection from any form of unwanted sexual advances in cyberspace. This would be in line with the object and purpose behind this piece of legislation of protecting the interests of women at the workplace from any form of sexual harassment and providing swift and efficient justice. POSH does not exhaustively define dwelling place. Furthermore, it would be incorrect to assume that the protection of the law under POSH only extends to such employees within the physical workspace, as has already been established above. It would, therefore, only be appropriate to say here that all acts of sexual harassment against a woman that takes place during the ordinary course of business, irrespective of whether such act happens in a physical or a digital workspace, is protected against and covered under the POSH.
Since such an act happens in cyberspace, i.e., on an electronic platform, an added layer of protection of the Information Technology Act, 2000 (“IT Act”) is also extended in this regard. Section 67 of the IT Act prescribes punitive measures for publishing and/or transmitting obscene content on an electronic platform. Section 67A stipulates punishment for publishing or transmitting material containing any sexually explicit act, in an electronic form. Such cases of online harassment can also attract penal provisions of Sections 354A, 354D, or 509 of the Indian Penal Code, 1860. These prescribe punishment for a perpetrator who sexually harasses a woman by stalking her on the internet, and through his words or act or gesture intends to insult the modesty of a woman. The only lacunae that exist in the protection granted by law are the dismal reporting rate concerning such crimes due to the stigma attached to it. If a case of cyber harassment does not even get reported on the online platform, then legal proceedings cannot be initiated and therefore the protection extended by law cannot be availed by the aggrieved woman. This needs an overhaul to ensure the preservation of the victim’s anonymity which would consequently lead to an increase in the number of reported cases and serving justice efficiently.
Sexual Harassment Electronic Box
The concept of Sexual Harassment Electronic Box (“She-Box”) has been developed by the Government of India. It is an online platform that is available on the website of the Ministry of Women and Child Development. She-Box was developed to ensure that POSH is effectively implemented. It provides a compliant redressal mechanism to all women working either in the organised or unorganised, private or public sector and who have faced instances of sexual harassment at their respective workplace. Any woman facing sexual harassment at the workplace can register their complaint through this portal and the complaint is thereafter directly sent to the concerned authority having jurisdiction to take action into the matter, such as the ICC of the organization. This is an important development as it provides an accessible redressal mechanism to women who are victims of sexual harassment at their workplace.
Preventing Virtual Harassment
The responsibility for any instance of virtual harassment always lies on the perpetrator and not the victim. When considering how to reduce rates of digital violence, firstly, it is important to identify risk factors for sexual harassment and find ways of stopping violence before it happens, and to make sure that victims have the support and resources they need to report abusers before they can strike again onto them.
1. All employees should be encouraged to report any incidents of harassment at the virtual workplace to the HR or IC. There have been instances where the victim may feel helpless to bring forward the issues they may be facing or have faced.
2. The system of checks and balances has to be in order. The managers who monitor the online meetings, digital communications and are privy to the conversation of the co-workers should be more vigilant. Extra care should be given to note and observe the conduct of every employee to note any out-of-the-ordinary behaviour or sudden lack of interest in the work or interaction with other co-workers.
3. The company also has to maintain an open-door policy regarding any grievances and complaints. The confidentiality of the victim statements and evidence collected should be maintained at all times. All statements can be signed off virtually. All evidence can be collated and filed using an online medium. The IC should be involved from the initial stage.
With the concept of virtual offices and work from home taking precedence in light of the workplace and with the aid of applications like Zoom, Microsoft Teams, and Skype etc. working in physical spaces and proximity has taken a backseat. This raises the question of whether our homes or virtual reality space qualifies the test to be recognized as a ‘workplace’ keeping in mind the spirit of POSH. Our understanding is that any act of sexual harassment affected virtually in a home working space can be included in the notional definition of a ‘workplace’. The definition of the workplace under POSH, itself envisages the concept of notional extension, and such legislative intent has also expressly been recognized by the courts. In the virtual world, there is a thin line between such harassment that may occur in the course of work or employment and that which may be perceived as harassment while operating outside the physical workplace. Having said that, the scrutiny of facts and circumstances of any complaint arising in case of employees who are working from home would be necessary to determine whether or not such complaint falls under the purview of the POSH, keeping in mind the dynamic scope of ‘workplace’. Therefore, it is the prima facie obligation of offices to prevent and protect the employees from all forms of harassment and discrimination is the duty of the companies.
Sexual Harassment at the workplace as well as in a dwelling place still happens. The workplace should be given a broader and wider meaning so that the said 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. However, there are dimensions of workplace conduct and safety that are equally important. With a large percentage of the urban working population, now the era of working from home employers have thin lines between the home and the workplace — obscuring an important element of professional and safe workplaces and leading to newer dimensions around workplace harassment.
This article is authored by Sakshi Shairwal and Aniket Dwivedi of Sakshar Law Associates.
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