In 2023, a writ petition, in the case of XYZ v. K. Foundation, [1] was filed by 7 petitioners in the High Court of Madras praying the High Court to issue directions to the K. Foundation (hereinafter referred to as the “Foundation”) to formulate a gender neutral policy to prevent sexual and other forms of harassment of students and create support mechanism in line with the Protection of Children from Sexual Offences Act, 2012, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Tamil Nadu Prohibition of Harassment of Woman Act, 1998, University Grants Commission (Prevention, prohibition and redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 and the various guidelines of the Central and State Governments, the National Commission for Children, the Central Civil Services Rules and to take action on the complaints of harassments received from the students.
The Petitioners in this case, though did not disclose their identities were all students of the one the RD College of Fine Arts (hereinafter referred to as the “College”) housed by the Foundation who alleged harassment in various forms including sexual by the faculty. The case highlights how even the premier institutes lag behind when it comes to seemingly equitable measures of functioning. As per a report, there has been shocking surge in reported cases of sexual violence against children by 96% from 2016 to 2022. [2]
Sexual Harassment at workplace
The issue of sexual harassment at workplace widely prevalent across industries and borders. The gravity of this issue increases when the victims of sexual abuse are underage. In 2012, the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted as a special legislation to protect children from sexual abuse. The POCSO Act categorizes anyone under the age of 18 years as a child and imposes strict and severe penalties for individuals who are involved in sexual abuse and sexual offences against children/minors.
The POSH Act
In situations where complaints of sexual harassment is filed by students of schools or educational institutions, the Prevention of Sexual Harassment of Women at workplace (Protection, Prevention and Redressal) Act, 2013 (hereinafter referred to as the “POSH Act”) plays an important role.
The POSH Act has vested the organisations with a responsibility to establish a clear anti-sexual harassment mechanism at workplace. Interestingly, the POSH Act is widely applicable on all organisation and offices be it, organized or unorganized, governmental or non-governmental, educational institutions, including schools, higher educational institutions and coaching centers, sports centers, stadiums and even across industries (As per section 2(o) of the POSH Act, definition of workplace).
Application of both the Acts – some instances
In the case of B. P. S v. The State of Maharashtra, the victim, a school student studying in standard VII was sexually harassed by a teacher in the school. In this matter, the FIR was registered four years after the incident occurred since the victim did not tell anybody. The incident got disclosed when a similar incident happened with the friend of the victim. In this case, a posh inquiry was conducted under the POSH Act and the accused teacher was suspended from the services of the School. Furthermore, the FIR was also registered under sections 7 and 11(1) of the POCSO Act initially while section 8, 10 and 12 were also added later on. As a result, the Accused was arrested and is facing trail in the District and Sessions Court, Pune. [3]
Case reference: P.K. N. v. Union of India,[4]
The Calcutta High Court in this case held that POSH Act applies even when the complainants are students, and complaint has been filed under POCSO Act. The Court was hearing an appeal against the order of the Central Administrative Tribunal dated October 10, 2021 upholding the suspension of the Accused teacher of the central government-aided school in Sikkim (hereinafter referred to as the “School”), against whom allegations of sexual harassment were made by 67 female students of the School.
The Court revisited the definition of 'aggrieved woman' which means in relation to a workplace includes a woman of any age whether employed or not who alleges to have subjected to any act of sexual harassment by the respondent.”
Interplay between POSH and POCSO Acts – A comparison
Parameter | POSH Act | POCSO Act |
Objective | The POSH Act is a law that seeks to prevent sexual harassment of women at workplaces and provide for a legal framework within organisations to deal with the complaints of sexual harassment. | The POCSO Act, 2012 is a comprehensive law enacted, specifically to provide for the protection of children from the offences of sexual assault, sexual harassment, and pornography while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. |
Scope | The POSH Act is a legislation to prevent 'sexual harassment' at workplaces where sexual harassment means to include:
| The POCSO Act punishes the following offences:
|
Applicability | To all organisations, whether employing women or not, irrespective of the number of employees employed. The Act is applicable on organized as well as unorganized sector. Therefore, any incident that happens at a workplace would become privy to the provisions of the POSH Act. The POSH Act defines workplace, as any place visited by an employee in relation to the employment and hence has a very wide applicability. | The law recognizes any person below the age of 18 as a child, irrespective of their gender, making it a gender neutral law with an ambit far wider than the Indian Penal Code. This nature of the Act, coupled with the strict penal provisions provides a blanket protection for children against sexual harassment. |
Nature of inquiry | Civil, however, does not bar criminal action under IPC. | Criminal |
Gender neutrality |
|
|
Procedure | The process of an inquiry and the recommendations are also governed by a quasi-judicial body saddled with the powers of a civil court. The POSH Act mandates organisations with more than 10 employees to constitute an Internal Committee to deal with the complaints of sexual harassment. Such Internal Committee has been vested with the powers of a civil court.[5] | The process and procedure to deal with case of child sexual abuse is completely different from inquiry procedure as set out in the POSH Act. Sections 24, 26 and 33 of the POCSO Act lay down the procedure for investigation and trial which is specifically required to be child friendly. However, as per the POCSO Act, any such incident falling within its ambit has to be reported either to the Special Juvenile Police Post or the local police. The process is thus completely judicial in nature. |
Burden of proof | The standard of proof is preponderance of probability and there is no need to establish the charge of sexual harassment beyond reasonable doubt as in a criminal proceeding. [6] | Section 29 of the POCSO Act states that the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence unless the contrary is proved. Under Section 30 of the POCSO Act, the Special Court shall also presume the existence of culpable mental state[7] on the part of the accused. Existence of such mental state shall be a defence for the accused to prove that he had no such mental state. |
Confidentiality | The POSH Act prohibits publication of the details of parties to the case of sexual harassment and prescribes penalty for violation of the said provision. [8] | The POCSO Act provides for protection of the child's privacy through all stages of judicial proceedings involving the child. Section 23 also prescribes a procedure for the media to be followed prohibiting disclosure of the identity of the child including name, address, photograph, family, details, school etc. |
Penalties | The recommendations of the IC can include, written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent, undergoing counselling session and carrying out community service, among others. | The penalties under POCSO are as follows:
|
POSH Act not in derogation of any other law applicable
In cases where age becomes a factor and minority of the victim is held above the applicability of the POSH law, the line between POCSO and POSH can seem a bit blurred. However, there is no confusion about the clearly defined applicability of POSH Act on all organisations. Section 19 (g) of the POSH Act clearly states that it is the duty of the employer to assist the aggrieved woman in filing a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force. Furthermore, Section 28 of the POSH Act states that the POS Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Authors: Anuradha Gandhi (Managing Associate) and Rachita Thakur (Associate) At SS Rana & Co. Views are personal.
WP.No.11764 of 2023 ↑
https://www.fairplanet.org/editors-pick/child-abuse-on-the-rise-in-india/#:~:text=Shockingly%2C%20sexual%20violence%20against%20children,from%2036%2C381%20cases%20in%202021. ↑
Spl.Case/0000305/2023 ↑
WP. CT 86 of 2021 ↑
Section 11 (3) of the POSH Act ↑
Medha Kotwal Lele & Others v. Union of India and Others, (2012) 9 SCR 895 ↑
Culpable mental state includes intention, motive, knowledge of a fact and a belief in, or a reason to believe, a fact. Section 30 of POCSO Act. ↑
Section 16 of the POSH Act ↑
Section 4 of the POCSO Act ↑
Section 10 of the POCSO Act ↑
The punishment for aggravated penetrative sexual assault was increased by way of amendment 2019 (Section 6 of the POCSO Act) ↑
Section 12 of the POCSO Act ↑