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Sexual Harassment "POSH" and Men

Today in a country like India which is said to be one of the largest democracy in the world where we, the citizens of India speak about the laws being gender neutral and with the development of the society with man and woman standing on the same ground everywhere with equal opportunities almost everywhere, gone are those days when women were said to be the household workers and men had to take the responsibility of being the bread earner for the family. The male domination has been reduced ever since and all laws have been made to upheld the integrity and reputation of a female in the society. Today, in my blog, I will be discussing about a pestering question which comes to my mind when I read the “POSH” provisions. POSH or as we know it ‘Prevention of Sexual Harassment’ was brought into force after the landmark case of Vishaka vs. State of Rajasthan. The question which my blog will deal with today is – Can a man initiate any sort of proceedings under such an Act if in case he is sexually harassed or bullied in any manner whatsoever. Ø The straight and general answer to such a question is a BIG NO. Ø A man cannot initiate any sort of proceedings for himself is in case he is sexually abused/harassed or bullied in any manner whatsoever. Ø The law in itself is not gender neutral as it expressly covers only women who are sexually harassed. The heading of the Act reads as ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’Ø It is clear from the above heading that this Act is implemented to protect Women and not men. Ø The answer to this question gets further clarity when we dig inside the ‘POSH’ Act.Ø The Jurisdiction of the Act extends to the whole of India as per section I of The POSH Act. Furthermore, it defines the term ‘aggrieved woman’ u/s 2(a) of the Act. Nowhere is there any mention of a term as ‘aggrieved man’ or ‘aggrieved person’ by which one can speculate that even a man can be subject to sexual violence and needs to be protected under such acts which once made should not be exclusively kept for the redressal of women. Ø This act not being a gender-neutral legislation fails to protect the ‘male victims’ of such sexual violence who do not find any sort of protection under the same. Therefore, the safeguards under such Act is for the women only and so to say it is also exclusive in its nature. Now the next question that comes to my mind is – ‘Can someone else file a complaint under the Act?’Ø The answer to that is a YES. If we look into section 9 (2) of the Act it does provide for someone else to file a complain provided that 1.      The aggrieved woman is unable to make the complain herself due to physical or mental inability or in case of death of such person.her legal heirs or any other person who is prescribed may file a complain on her behalf. However, the Act does not specify any other individual apart from a woman who can have the liberty to file a complain under the proviso of this Act. APPLICABILITY OF THE ACTTo answer the first question, I must say that we should look into the applicability of the Act as it will give us a clear idea of the people to whom such Act is applicable. When we read the applicability of the Act, we find that this Act is applicable only to women. An aggrieved woman can invoke the ‘POSH’ Laws but on the other hand if the victim of the same is a man then in such a circumstance he needs to rely on the company rules/regulations/policies and procedures because the ‘POSH’ Laws do not cover aggrieved men under its broad ambit and purview.INDIAN PENAL CODE IN RELATION TO ‘POSH’ LAW When we look into the Indian Penal Code, 1860 and relate the same to sexual offence we find a newly inserted section in the Penal Laws which deals with Sexual Harassment. Section 354A of The Indian Penal Code, 1860 deals with Sexual Harassment and it has also made it a ‘cognizable offence’. By making Sexual Harassment a cognizable offence one means to say that – A police at any time may arrest without warrant any such person who is charged under the above-named section. Section 354A in itself is not gender neutral as it levies the conduct of Sexual Harassment to a man whereas imposes the victimization of the same to a woman. The law makers did not feel the need to introspect into the idea that ‘Sexual Harassment’ in itself is a gender-neutral crime and anyone can be sexually harassed irrespective of their gender. The section reads as follows: - 1.     A man committing any of the following acts shall be deemed to be guilty of an act of sexual offence. a.      Physical Contact b.     Sexual Advances which are unwelcoming c.      Explicit Sexual overturesd.     Request for Sexual favorse.      Making Sexually colored remarks f.       Showing pornography content against the will of such person Such person shall be punished with rigorous imprisonment for a term extending to a maximum period of three years with fine or with both. Other than the above section there are other various sections of IPC which deal with offences of Sexual Harassment. Such as Section’s 354/354C/354D/375/376 and 509. CRITICISM OF THE ‘POSH’ ACTThere have been many criticisms about the said Act and most of which have been resolved in the Draft Bill of 2012. The major criticisms are as under: -1.     The Act did not cover women of the armed forces and those who are agricultural workers.As a result of which the terminology of the Act changed its clause to “No woman shall be subjected to sexual harassment at any workplace” as a result of which widening its scope to every woman in India and giving them protection under the Act. 2.     Another major criticism is that the bill does not cover or protect men in any way. Manoj Mitta of The Times of India complained that Bill does not protect men, saying it "is based on the premise that only female employees needed to be safeguarded.3.     There have been some tribunals who have commented on the constitutionality of section 4 and 7 of the said Act. PERSONAL OPINIONFrom the above it is very clear that a man under whatsoever circumstance cannot take any legal action under the ‘POSH’ Act. The Act in itself is not gender neutral and it believes female to be the weaker sex who can be exploited and hence need protection. It clearly sets an example whereby upon the bare reading of the provisions of the Act one can come to a conclusion that a female can never be the sexual offender however; she can always be the one who is sexually exploited. On the contrary the framework of such a legislation without prejudice categorizes a man as a sexual offender and fails to introspect a situation whereby even a man can be a victim to such a heinous crime, setting the legislation up as non-gender neutral, this Act formulates the policy that it is only the female employee or for that fact only a female who needs protection from Sexual Harassment and that men cannot be Sexually Harassed as they are always the one who are the force behind such Sexual Offences. Under any circumstance if a man becomes a victim of Sexual Offence whereby the wrong doer is a woman then in no circumstance is there any legislation which particularly protects the victimized male gender just like there is ‘POSH’ which protects the victimized female gender. The man needs to be at the mercy of company policies/bye laws/rules and regulations as there is no particular statute which gives any form of redressal to the victimized man.  

Posted By

Shreyash Mohta

2 months ago

How to protect yourself from the false accusation...

To answer this certain question, some other questions related to it are arising. They are: What is sexual harassment? What are rules under Indian laws? Is it satisfactory? What you can do? Legal proceedings Case laws related to it.   First, we need to take a look on what is sexual harassment. Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when either: The conduct is made as a term or condition of an individual's employment, education, living environment or participation in a University community. The acceptance or refusal of such conduct is used as the basis or a factor in decisions affecting an individual's employment, education, living environment, or participation in a University community. The conduct unreasonably impacts an individual's employment or academic performance or creates an intimidating, hostile or offensive environment for that individual's employment, education, living environment, or participation in a University community. Sexual harassment is defined by law and includes requests for sexual favors, sexual advances.   Let us now have a look at the rules under Indian government to prevent Sexual Harassment for Women. The acts of offences of Sexual Harassment under the Indian Penal Code 1960 and the relevant punishments for that: Section 345A to section 345D and section 509 describes Sexual Harassment and its form. Unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favors, showing someone sexual images or pornography without their consent, and making unwelcome sexual remarks categorize as Sexual Harassment. Indian government has made an Act to provide protection against Sexual Harassment of Women at Workplace and for prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. The Act may be called as The Sexual Harassment at Workplace (Prevention, Prohibition, Redressal) Act, 2013. This Act came into force after 16 years of the case Vishakha & Ors vs the State of Rajasthan & ors, on 13 August, 2013. In this case Vishakha and other groups of women filed a PIL against Rajasthan and Union of India to enforce the Fundamental Rights of working women under Articles 14, 19 and 21 of the Constitution of India. The petition was filed after a lady named Bhanwari Devi, a social worker in Rajasthan brutally gang raped for stopping a child marriage. There was another Act enacted by the Indian Government on protection of children from sexual harassment. The Protection of children from Sexual Offences Act (POCSO Act) 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children. The protection of Children from Sexual Offences Act, 2012 received the President’s assent on 19th June 2012 and was notified in the Gazette of India on 20th June, 2012. The protection of Children from Sexual Offences Act, 2012, has been passed by the Lok Sabha today, 22nd May,2012. The Bill was earlier passed by the Rajya Sabha on 10th May, strengthen the legal provisions for the protection of children from sexual abuse and exploitation. The Act defines a child as any person below eighteen years of age. It states different forms of Sexual Abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. It deems a sexual assault, to be aggravated under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor. The Act also casts the police in role of child protectors during the investigative process. Thus, the police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child, such as bringing the matter in front of the CWC (The Concerned for Working Children is a non-profit organization based in Bangalore, India.), should the need arise. Multiple studies have shown that social stigma and insensitive attitudes of police lead women to avoid filing domestic assault charges. According to a decade of data on 1,675 abused women, which was collected by Dilaasa, a crisis intervention center, only 47 percent of women went to the police. A third of those who did not approach the police had faced violence for three to five years, two-thirds had faced violence during pregnancy, and a third had attempted suicide. A quarter also experienced rape and sexual assault with objects. Amidst all the heightened and enlightened activism around gender bias for protection of women's rights and dignity, there lays a much-neglected topic of harassment faced by men in all forms. The Indian legislation completely negates the fact that men can be victims too. In fact, IPC section 354A, 354B, 354C, 354D, 509 deals with sexual harassment, disrobing, stalking and voyeurism, and clearly state a man being the perpetrator, and the woman being the victim. Even sections 376 and 509 speak about rape of a woman and outraging the modesty of a woman. The question of modesty, if at all, only exists in women. Now let us talk about the things we can do to protect ourselves from false accusation of Sexual Harassment. When someone is being falsely accused of some wrongdoing then that creates a major negative influence on his career, social life, mental health and legal background. Attribute the current situation. Being the subject of any false allegations can create a lot of mental pressure. It makes one nervous, frustrated and panicky. The anxiety level of one gets higher day by day. The aim should be to accept and acknowledge the present situation and keep the faith in oneself. Do not deny the severity of the situation or do not think that the problem will get solved by itself. One must take action to resolve the problem or the false accusation. Concede the feeling guilt. Even when one is innocent, that person may still practice some mixture feeling of guilt. If someone professed some wrongdoing on one’s name then that person in his mind may feel that they have done something wrong to deserve those comments. These kinds of feelings are only natural. Do not entertain them and let them go. Choose your confrontation. When a false accusation is made that creates a lot more rumors along with it. Always stand up for yourself and fight those situations calmly. React only to those matters what is worth the fight otherwise if is possible then avoid silly rumors. Because you need time and energy to fight the actual False allegation. Acknowledge the support system. One must always acknowledge the fact that their family and close friends will always be there by one’s side. What you need to do is appreciate them and find your support system in them. Focus on your efforts. In the court of law, the Judge’s discretion is the last of all proceedings. So, one must focus his efforts on the fact that the Judge must be pleased by his statements and reputation. Try building that reputation and always keep faith in yourself. Research on your topic. One must not rely on others when he has been falsely accused of some wrongdoing. He, himself must research about that particular incident. Whether similar kind of incident has occurred with someone else before or any judgement of court has been made on that topic. If one researches then he will get the measurements of what he should do next. Do not promote blackmailing. If your accuser is blackmailing you for exhortation of money then do not provide the amount. Rather record the event and save it as an evidence to present it later on your account. You may think that your problem will get solved by providing the money. But it will be only a fool’s act to do because blackmailing never solves any problem rather it creates more. And if you pay the amount you have asked for then the act will be counted as an act of guilt on your part. Congregate evidences and witnesses. One must back up their story especially in the cases of false allegations. Gather documents that proves your innocence such as photographs, receipts, tickets, bills etc. which shows that you were not present there where the incident actually occurred. Any other kind of evidences like audio or video recordings, messages or any other documents that provides the proof of your innocence, congregate them together to present the same before the Court when asked upon. Safeguard yourself. The procedure of defending yourself in the case of false allegation and accusation may be fleeting. Always believe in your own story, stick to it and defend yourself with the gathered evidences and witnesses to endorse your account of the events. Social media is not a weapon. One must realize that posting your matter of false accusation of sexual harassment on any social media is not an option. If you think that will bring you justice then I must tell you that you are not thinking right. When you post your matter on social media, it goes viral. People make trolls out of it. If you are looking for sympathy then your family and friends are there to provide you with that. There is no need to posting your matter on social media and make a comedy of your tragedy. Say NO to apology letters. In this kind cases, people who are in higher positions than you or even people who are equal with you may suggest you to present an apology letter to the person who has falsely charged you with erroneous allegation. Never do that when you know that you are innocent. One might think that the apology letter will nullify the case then and there but it does not. It becomes as an evidence for your accuser and makes you look guilty. Check before signing. One must always check the documents which are presented before him for signing. This a general idea to safeguard yourself from the future harm. Especially in the cases of false allegation one must always check the documents and papers before signing the same. Do not provide your signature on any blank paper either. Because people with harmful nature and mind may take advantage of that signed blank paper. Take legal help. When you are being falsely accused of wrongdoing you haven’t done, you should take legal help. Hire an advocate who is an expert in these issues. Share all the details about the incident with him/her. Provide your legal counsel with all the evidences you have gathered yet. Legal Process Prima Facie case. In the cases of False Accusation, ‘Prima Facie’ would be appropriate to get through it. In most legal proceedings, one partyhas a burden of proof, which requires it to present prima facieevidence for all of the essential facts in its case. If it cannot, its claim may be dismissed without any need for a response by other parties. A prima facie case might not stand or fall on its own; if an opposing party introduces other evidence or asserts an affirmative defense it can only be reconciled with a full trial. Sometimes the introduction of prima facie evidence is informally called making a case or building a case. There are several Indian Court judgments against false acquisitions of sexual harassment. Where it has been proved that the accusations of Sexual Harassment were made falsely. And the Court’s discretion was clear on the fact that the victim was not actually a victim and falsely made a complaint of Sexual Harassment and quash the proceedings.  Below mentioned are few of the many examples. 1.      Mr Sunil Menon vs Mr. Ramesh Chelliah on 15 March, 2017 Karnataka High Court The learned Sessions Judge ought to have noted that in the absence of any witnesses being cited, it was pointless to direct investigation as no independent evidence would be available to prove any of the accusations made in the complaint. As a result, the proceedings would degenerate into a weapon of harassment and persecution.   2.      Smt. Babita Chawla vs Kamal Kulthia on 11 August, 2014 Delhi District Court The complaint of the petitioner is related to an offence whereby it is stated that she had paid 21 lakhs to the respondent no. 1 bur he had denied having executed any agreement and also having received any money. There were phone call transcripts between the parties which show and prove the case of the petitioner. Learned Trial Court holding that identity of the accused and entire incriminating evidence was within reach of complainant therefore, no direction under 156(3) of Cr.PC were required, dismissed the application and listed the case for presummoning evidence. Respondent has also placed on record certified copy of settlement arrived before Mediation Cell, where the dispute between husband of petitioner and respondent no. 1 was settled for a total sum of Rs. 50 lakhs to be paid in 07 installments. This settlement bears signatures of petitioner and respondent no. 1 alongwith signatures of the advocate for husband of petitioner. This settlement nowhere mentions about the petitioner having paid Rs. 21 lakhs at any point of time nor does it taken into consideration having entered into any previous agreement as alleged by petitioner. The settlement is also accompanied by a compromise deed wherein it is mentioned that petitioner had earlier filed a false sexual harassment case against respondent no.1 and also after the settlement no further case or complaint or FIR would be lodged relating to the said matter.   3.      Neena Shad vs Mcd on 2 November, 2010 Delhi High Court In his defense the respondent stated, that the petitioner and the her husband unnecessarily picked up a fight with him and thereafter called the police and falsely accused him of Sexually Harassing Neena Shad. During the pendency of proceedings of Sexual Harassment Complaints Committee, a report was submitted regarding the conduct of the petitioner, Neena Shad. This report states that during her stay in various dispensaries her behaviour towards junior or subordinate staff was not found satisfactory. It came into notice that the officer who asked for her punctuality and behave properly to juniors, she always levelled allegation of Sexual Harassment upon everyone. As many as three complaints by the levelling Sexual Harassment allegations were filed by Neena Shad but not even an iota of truth was found in any of the said complaints by the committee.   4.      Neeraj Kumar vs joint commissioner, Navodaya Vidyalaya Delhi High Court It has been submitted that the foundation of the order of termination in this case of petitioner though is based upon the Inquiry Report along with statements given by the complainant in Sexual Harassment case or all proceedings among other false charges; the respondent in the order to hide their illegal act and at the same time with a view to punish the petitioner, took the illegal recourse of a camouflaged Termination Simpliciter order acting on the biased, prejudiced, contrary and malafide recommendation of the DPC. It has been submitted that the basis of his termination is unsatisfactory performance or unsuitability. The tribunal have failed to appreciate that dishonour has been attached to the termination of the petitioner inasmuch as the DPC in recommending for termination of petitioner was biased, malafide, prejudiced and perverse.    5.      K.Narmatha vs The Home Secretary on 3 September, 2010 Madras High Court The appellant had approached this court with an innocuous prayer for a direction to the concerned authority to take appropriate action on her complaint. When such a relief is asked for, an enquiry was conducted by a team headed by the woman Deputy Superintendent of Police, Manamadurai, it came to be known that the complaint was false. The fact that appellant also gave a statement in writing that she was not subjected to any sexual harassment by any police officer, is not denied. The further fact remains that almost all the women Sub Inspectors of Police from that district have also given a statement in writing that they were not sexually harassed by any police officer. The report of the Deputy Superintendent of police also stated that the complaint was false. Based on such reports, further proceedings were dropped on both the above complaints. There is no dispute that the action to drop further proceedings was not questioned by the appellant.          

Posted By

Purbasha Roy

1 year ago

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