By Ananyaa Banerjee and Apalka Bareja
The #metoo movement was introduced with the purpose of empowering women who had suffered from sexual assault and sexual harassment by Tarana Burke Back in 2006, who herself was the victim of rape and sexual assault as a child and a teenager. Before #metoo Burke had developed a program “Just be Inc.” where she came across a number of girls sharing their experience of sexual harassment, sexual violence and unawareness as to what constitutes sexual violence.
It was these stories that made Burke decide to create a Myspace page titled “metoo” which then turned out to be a revolutionary moment as people from all over the world were supporting her.
It was in 2017 when actress Alyssa Milano amplified Tarana Burke’s efforts by popularizing the #metoo on social media platforms like Twitter.
After Milano’s post thousands of women across the world started telling their stories of sexual harassment and sexual abuse in their workplaces where they were exploited by their employers or by people in a position of power over women in their work place.
The #metoo movement
When the #metoo movement had reached its peak in the world, several women in India also became aware of the #metoo movement and got the strength to come out in public and state incidents of sexual harassment that they faced over the years by people in the position of power. One of the first people to come out using the platform of the #metoo movement in India was actress Tanushree Dutta when she alleged that during the shooting of the film “Horn Ok Please” her co-star Nana Patekar in 2008 had behaved in a very unwelcome way.
After Tanushree Dutta there were several other leading ladies in many other fields who alleged on social networking sites that they had also been sexually harassed by film personalities, politicians and many other such well-known personalities.
As per our understanding of the annual reports published by National Council for Women since the resurfacing of the #metoo movement the cases of sexual harassment have increased by 33 percent in India which is displayed below in a bar chart.
POSH Law on #metoo
According to section 9(1) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (herein after referred to as “Act/ POSH Act”) and Rules thereunder a complaint of sexual harassment at workplace can be filed by an aggrieved woman to the Internal Complaints Committee within 3 months (90 days) from the incident of sexual harassment and the date can be extended by the Internal Complaints Committee for another 3 months if they feel there is a genuine reason for the delay in the filing of complaint. The POSH law came into play only in 2013 but most of the #METOO complaints came up from were before that time (Tanushree Datta 2008). The maximum time period allowed to file a complaint under the POSH Act is 3 +3 months. Under the POSH Act the complaint regarding sexual harassment at workplace is to be reported to the Internal Complaints Committee and all the #metoo allegations were being made on social media websites.
What should an organization do if a #metoo allegation comes up in their organization?
The employer should make sure that every employee and Internal Complaints Committee member is well aware and trained regarding the POSH policy, POSH Act, Complaint mechanism to be followed & methods to prevent POSH Complaints.
If a #metoo complaint alleging sexual harassment is being made to the Internal Complaints Committee then, the members of the Internal Complaints Committee will have to scrutinize the complaint according to the POSH Act, and if the complaints does not fall into the time frame or eligibility of the Act then the Internal Complaints Committee is not legally bound to take the complaints but as a practice it is advisable that the Internal Complaints Committee should take these complaints and keep these incidents on the record, because if in future similar accusation emerges against the respondents/alleged harasser the organizations can use them as evidence.
In a recent case of Db Corp Ltd vs Shailja Naqvi & Ors.
The Delhi High Court has held that a delay in filing an appeal under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal), Act 2013 (“POSH Act”) can be condoned under Section 5 of the Limitation Act, 1963, because if a Court were to refuse to condone a delay of as little as 36 days to an alleged victim of sexual harassment preferring an appeal against the inquiry committee’s report, the very purpose of the POSH Act would fail.
A sexual harassment victim who is in a state of trauma cannot be expected to immediately rush to a Court to seek appellate remedies.
The Court observed that the POSH Act” is an ameliorative statute, intended to redress a serious social evil and victims of sexual harassment at the workplace suffer untold trauma, mental, physical, and spiritual and thus a delay – if properly explained – should, clearly, not stand in the way of the appeal of the alleged victim of sexual harassment being decided on merits”.
Importance of POSH training in #metoo era
In order to prevent #metoo or sexual harassment cases the employer should increase the frequency of POSH training and have a focused POSH training for senior management and Internal Complaints Committee members. This will allow a better understanding of the POSH Act and the instances and behaviors that are covered under the ambit of the POSH Act.
To conclude, it can be said that presently the POSH Act does not provide any relief to the #metoo victims as the POSH Act does not cover anonymous complaints and neither does it cover complaints of sexual harassment that are older than 3 months (6 months in special circumstances). Since the advent of #mettoo in India cases of sexual harassment at workplace are so prevalent in every organization, there is a clear requirement for an amendment in the POSH Act with relation to complaints of sexual harassment that do not directly fall under the ambit of POSH Act. Especially when many of the victims don’t even realize till after a long time that what happened with her is sexual harassment and she can take action against the harasser. Which is why it is very important for the employer to understand what his responsibilities are and what he can do to prevent POSH Cases in his organization.
Mayank Kapoor, Intern at S.S. Rana & Co. has assisted in the research of this article.