AMENDMENTS TO THE POSH ACT PROPOSED IN 2024 LIMITATION AND CONCILIATION
Introduction
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has, since its inception, served as a crucial instrument in addressing workplace harassment. Nonetheless, several gaps in the statute have persisted over the years. The 2024 Amendment Act seeks to rectify these deficiencies and enhance the effectiveness of the legislation and the level of compliance.
Overview of the amendments
On February 2, 2024, the Sexual Harassment of Women at Workplace Amendment Bill, 2024 was introduced in Parliament to address issues identified by the J.S. Verma Committee in its 2013 report concerning necessary amendments to the current criminal law framework. The proposed bill aims primarily to extend the time limit for filing a complaint of sexual harassment. Also, it seeks to eliminate the existing conciliation provision under the Act.
Proposed Amendments and Existing System: Comparative Analysis
Recent amendments include both existing and proposed changes to the provisions. The complaint redressal period has been extended to 1 year. Also, the previous option for conciliation, which allowed both parties to conciliate in the presence of the IC, has been repealed in the proposed amendment. The Classification of the same has been mentioned below for both the proposed changes:
Change #1: Change in Provisions for Limitation Period: Under the current provisions of the POSH act, the initial limitation period for accepting a complaint is three months. The Posh Act grants the Internal Committee the authority to extend this limitation period by an additional three months. This effectively allows for a total limitation period of six months from the date of the incident.
Proposed Amendment for Limitation Period: Extension of the Limitation Period: The base limitation period for filing a complaint will be extended from three months to one year. The amendment removes the upper limit for the extension period, granting the Internal Committee unlimited authority to determine the timeframe for accepting a complaint.
What is the implication of this proposed change?
Increased Accessibility for Complainants: Extending the time limit to one year has merits. It gives an aggrieved person more time to come forward, especially if they need it to process what happened, gather proof, or feel confident enough to speak up. This change helps the Internal Committee accommodate different situations that might delay someone from reporting within the usual time.
However, there is a downside to this too. With a whole year to report, people might get used to the harassment and think it's normal. How someone sees this varies from person to person, and it might affect whether they decide to report the incident within that long timeframe as it deals with subjectivity.
Legal and Procedural Considerations: Removing upper limit for extension raises concerns about legal certainty. Parties may argue that indefinite extension hampers their defense due to potential memory loss or lack of evidence over time. Hence, it's vital to establish clear guidelines for the Internal Committee on exercising discretion.
This issue affects both respondents and complainant. Complainant may struggle to recall details over time, while respondents may find it challenging to provide evidence, particularly if electronic records like electronic mediums are not preserved. This ambiguity in evidence preservation makes it difficult for both parties to substantiate their claims within the extended timeframe as well for the Internal Committee to decide. Hence, clear guidelines for evidence preservation are crucial to ensure a fair process and impartiality.
Impact on Workplace Dynamics: The amendment is likely to encourage more individuals to report incidents of sexual harassment, knowing that they have a longer and more flexible window to do so. Although the provision could be abused, either by complainants seeking to exploit the extended period for strategic reasons or by Internal Committees being unduly lenient or harsh in granting extensions.
Change #2: Elimination of Conciliation Process
Pursuant to Section 10 of the Sexual Harassment of Women at Workplace Act, the Internal Committee is vested with the authority to initiate conciliation proceedings based on the request of the aggrieved women. This provision enables the resolution of disputes with the respondent without resorting to a formal inquiry process. However, the proposed 2024 Amendment Bill seeks the repeal of Section 10 in its entirety, thereby abolishing the conciliation process from the Posh Act.
Comparison of the current and proposed changes related to conciliation in the POSH Act.
A) Organizational Perspective
With Conciliation
The availability of conciliation allows for an informal and amicable resolution of conflicts, creating a collaborative work environment. It not only helps address misunderstandings but also minor grievances without escalating to formal inquiries.
Employees might feel more supported and valued knowing that their complaints can be resolved through dialogue and mutual agreement, thereby enhancing overall morale and trust in the IC complaint mechanisms.
Women, particularly those in vulnerable positions, may face pressure or coercion from higher-level management to opt for conciliation, even when it may not be in their best interest.
Without Conciliation
Removing conciliation could increase the number of disputes escalating to formal inquiries, potentially straining relationships among employees and affecting workplace dynamics, without the opportunity for conciliation, minor issues may escalate unnecessarily, resulting in heightened tension and decreased productivity.
Employees may perceive the absence of conciliation as a limitation in their ability to resolve conflicts and grievances effectively. The lack of an informal mechanism could undermine trust in the IC mechanisms, as employees may feel that their concerns are not being adequately addressed. This could ultimately affect the organizational performance and employee retention rates.
Removing the conciliation process helps prevent this manipulation and ensures that complaints are addressed through a fair and thorough process, free from external influence.
B) Complainant's Perspective
With Conciliation
Conciliation empowers complainants by providing a less intimidating avenue to address their grievances. It allows for direct communication and resolution without the pressure of a formal process.
The primary objective for many complainants, is to achieve closure and ensure that the offending behavior is not repeated. Conciliation can effectively meet this need by addressing the issue promptly and amicably.
Without Conciliation
The absence of conciliation might deter complainants from coming forward, fearing the implications of a formal inquiry, such as potential retaliation or the severe consequences for the respondent.
A formal inquiry can be lengthy and stressful, possibly aggravating the complainant's distress and leading to prolonged periods of uncertainty and anxiety.
C) Respondent's Perspective
With Conciliation
Conciliation provides respondents with an opportunity to understand the complainant's perspective and amend their behavior without the stigma of a formal inquiry.
For minor infractions or misunderstandings, conciliation offers a means to resolve issues without the risk of severe disciplinary actions that could arise from a formal inquiry.
Without Conciliation
The formal inquiries assess the impact rather than the intent of the individual, which may be the disadvantage to the respondents who did not intend to cause harm but whose actions were perceived negatively.
Without conciliation, respondents might use their influence to pressure the complainants not to report incidents, knowing that a formal inquiry could lead to severe consequences.
D) Internal Committee’s Perspective
With Conciliation
Conciliation gives an opportunity for the parties to amicably settle the issue with the aid of the IC. Though IC can only inform the complainant the option to conciliate, it allows the IC to strategies preventive measures which will contribute to the safety of the workplace.
IC can maintain confidentiality and privacy, preserving the reputations and interests of both parties involved while resolving the dispute in a discreet manner through conciliation.
Without Conciliation
The omission of conciliation may act as a barrier for the IC to understand or have the pulse of the floor and limits preventive and prohibitory actions.
Omission of conciliation may narrow down the option of aggrieved reporting the incident due to some preconceived fear of formal inquiry and actions thereunder.
Conclusion
The proposed amendment to extend limitation and removing conciliation from the Posh Act has both benefits and drawbacks. While it may prevent coercion and manipulation in resolving workplace harassment cases, it may intensify conflicts by hindering constructive dialogue.
