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 ACT
To 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 overtures
d. Request for Sexual favors
e. 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’ ACT
There 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.
From 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.
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