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The UGC Guidelines: POSH Transcends Itself To Educational Institutes

Niharika — Mon, 25 Oct 2021 06:15:43 +0000

GENESIS OF THESE REGULATIONS

The corporate world is witnessing a significant increase in female employees. Thanks to the PoSH act, 2013, promising safe workplaces for female employees, this has become achievable. This increase in the number of female employees participating in the corporate workspace is also an indicator that the number of female students accessing the higher educational institutes has also improved.

According to a report in 2015, India has 760+ universities and affiliated educational institutes and over 38,498 colleges. According to a study by UGC India, The University Grants Commission of India ( UGC is the governing body that grants affiliations and recognition to all educational institutes and also ensures that all institutes maintain the academic standards set by the UGC) the number of cases of sexual harassment reported between 01/04/2018 to 31/03/2019 in the higher educational institutes where 171. Such factors were indicators to the UGC that legislation dedicated to higher educational institutes is mandatory.

Although the PoSH Act categorically includes higher educational institutes within its definition under section 2(o) of its act, to stress its implication concerning the higher educational institutes, the UGC, along with the Ministry of Human Resource Development, drafted the University Grants Commission (Prevention, prohibition, and redressal of sexual harassment of women employees and students in higher educational institutions) Regulations, 2015, keeping the benefits of PoSH act to the female employees in mind.

SPECIAL FEATURES OF THE UGC REGULATIONS

UGC Regulations emphasized the responsibility of Higher Educational Institutes to act decisively against all gender-based violence against employees and students of all sexes, including the third gender. The regulation states that sexual harassment is gender-neutral, and educational institutes should act upon complaints of both male and female employees and all students, male, female, and third gender.

GENDER NEUTRALITY CLAUSE

These regulations of the UGC have taken a revolutionary initiative by adopting a gender-neutral approach which means that irrespective of the gender, the victim can lodge a complaint, and the UGC PoSH regulations shall protect the rights of students enrolled at the institute and ensure that they are all safe from sexual abuse regardless of the gender.

Regulation 2(k) of the said regulation defines sexual harassment. Regulation 3 (d) of the UGC PoSH regulation states that Higher Educational Institutes must act swiftly in the wake of any sexual harassment against the staff and students, whether male, female, or third gender, recognizing that primarily female employees and students are subjected to sexual harassment. But this UGC PoSH law does not exclude male students and students of the third gender.

In this PoSH regulation, this clause of gender impartiality is revolutionary in many ways. It has helped to interpret the discrimination and abuse of male, female, and third gender students and employees on par with the corporate world, which is hierarchical. For instance, it helps resolve incidents between the student and teacher in educational institutes, employees (male, female, or third gender) of these institutes, and employers. Moreover, this gender-neutral UGC PoSH anti-sexual harassment regulation would help perceive sexual misconduct better and its consequences for men and sexual minorities.

This regulation was recently upheld in the case law of Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College, and Ors.

CASE LAW- Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Ors.

In this case, which was presented before the single bench of Justice Sabyasachi Bhattacharyya, the concern was whether a lawsuit lodged against a Respondent of the same gender as the complainant was legitimate or not.

This case challenged the internal committee of a higher educational institute as it had refused to accept a complaint because the complainant and respondent both belonged to the same gender, i.e., female. In this case, the petitioner argued that such complaints aren’t valid.

Relying upon the case example of Vishaka and others versus the State of Rajasthan, the bench contended that the fact and principles of gender equality depend on whether the complainant falls under the periphery of the PoSH Act 2013 or not. Therefore if the gender of both parties is the same, then the issue of gender equality doesn’t arise.

On the other hand, the respondents relied upon the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) PoSH Regulations, 2015 and stated that the regulations include a wide range of people, including people of the same gender, employees, and students, and call for action in cases of sexual assault. They also argued that this, when combined with the concept of Respondent in Section 2 (m) of the PoSH 2013 Act that refers to a person as a respondent, it is evident that same-gender allegations can be considered under the PoSH 2013 Act, formed for the benefit of employees in an organization.

The High Court determined that nothing about Section 9 of the PoSH 2013 Act [referenced in Section 2(m)] prevents a same-gender lawsuit under the PoSH Act. The court also said that the definition of sexual harassment as written in section 2(n) should be interpreted in the context of the dynamic society we live in now, which has abolished section 377 and has initiated a debate on the legalization of same-gender marriage.

Also, the definition of sexual harassment in section 2(n) of the PoSH act talks about infringement of personal rights nowhere includes that an individual from the same gender cannot infringe personal liberty. Regardless of the sexuality or gender of the perpetrator, any individual (a student or an employee of the institution) of any gender can feel potentially threatened or sexually abused if their dignity is violated by any of the actions contemplated in section 2(n) of the PoSH act.

STEPS THAT MUST BE TAKEN

Understanding the PoSH Act and the UGC Regulations clarifies that the higher educational institutes must take steps to ensure that the educational institutions are safe for all. The below-mentioned steps are necessary for the educational institutes to ensure that they can build a safe environment for the students, employees, academicians, and teachers.

Formation of internal complaints committee as per the UGC PoSH regulations The composition as per regulation 4 of the UGC PoSH regulations is as follows

A presiding officer who shall be a female faculty member at a senior level and is nominated by the executive authority
Two faculty members and two non-teaching employees, nominated by the executive authority
Three students, who shall be elected through a democratic process
One member from the non-government organizations
This constitution should ensure that women constitute half of the total members.

Duties of the internals complaint committee The committee shouldn’t be for mere compliance or made for moral policing.

Any case involving sexual assault should be brought to the committee’s attention, as per the PoSH regulation.
Due to the sensitivity of gender-related concerns, the committee will be approachable and not infringe on the privacy of those concerned.
After the committee has been established, the members may determine the protocol for complaint resolution, abiding by the UGC PoSH regulations.
The Committee should meet twice a year, with additional meetings if needed to address any concerns or grievances that might arise.

Gender sensitization This means spreading awareness relating to issues about gender and creating an environment that inculcates a sense of personal security and gender justice. This can be achieved by orienting students and employees through seminars and workshops.

Conclusion

These regulations have been able to adapt to the dynamic world we live in by including clauses of gender neutrality. These PoSH regulations have helped to spread awareness in educational institutes. These regulations on paper represent a world wherein there is a sense of personal liberty, and if they are breached, their grievances are heard. The educational institutes should ensure that they don’t take them as mere compliance but instead act upon these regulations and help build a secure environment.

ABOUT THE AUTHOR

Hemansh Tandon is a fourth-year law student from Indraprastha University. He is an avid reader and has a keen interest in writing prose and verses.

For more information on Prevention of Sexual Harassment(POSH), EAP (Employee Assistance Programs), D&I (Diversity and Inclusion) offerings by CecureUs , please contact connect@cecureus.com or call us at +91-7200500221

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Definition of ‘Workplace’ Under POSH Act 2013 — Includes WFH, Remote & Hybrid Teams

Niharika — Thu, 08 Apr 2021 16:23:24 +0000

Under the PoSH Act 2013, ‘workplace’ does not just mean the physical office. Courts have extended the definition to include client sites, work-related travel, company vehicles, work-related social events, and in recent rulings, virtual spaces like WhatsApp groups and video calls. If your company has remote or hybrid employees, your PoSH policy must explicitly cover digital harassment and online conduct.It is often presumed that the word ‘workplace‘ is quite self-explanatory, and it doesn’t need an article in its interpretation. It is a common assumption in any society or working class of employees that a workplace is often the office premises, and the harassment in a workplace means the harassment happened in the premises or the office working space. But a workplace is not just restricted to the four walls of a cubicle in an office. It is much more than that.

So, to begin with, we have listed down a few hypothetical situations that will help readers comprehend the idea of a workplace better. For instance:

Two colleagues went to a pub during post office hours to liaison with a client, and a harassment incident happened with the client. Should PoSH Committee handle this harassment as it is outside office premises?
A group of 4 colleagues went on a trip to a hill station (Unofficial) over a long weekend, and something untoward happened between them during the time. Should PoSH Committee handle this?
While working from home, I was asked some unwelcome questions by my manager. Will my home be considered a workplace? Should I report this as harassment to the PoSH committee?
Sumana stayed in a hotel while on an official trip, and the staff working there misbehaved with Sumana. Can Sumana report this harassment to the PoSH Committee as it did not happen on her office premises which are usually considered her workplace?
Gita travelled from Delhi to the Pune office. In the Pune office, she faced harassment by a colleague. To Which IC should she file a PoSH complaint? Pune or Delhi?

The above are a few common scenarios that question the jurisdiction of the PoSH Act and whether the Internal committee should take up such cases?

In this dynamic age of uncertainty and the society where the working class, especially working women, facing harassment in the workplace is considered a pressing issue but nothing abnormal, it is critical for PoSH law to mould itself not ethically but responsibly so as to cope with the contemporary world and challenge the pre-conceived notions of the society.

Further in the article, we shall elaborate on the definition of the workplace in PoSH cases and how it is interpreted.

DEFINITION OF WORKPLACE IN POSH

The workplace is defined in section 2(O) of the PoSH Act. This definition has ensured that there would not be an iota of doubt to ensure that everyone is familiar with what a workplace constitutes.

Section 2(o) workplace includes

Any department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit which is established, owned, controlled, or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or co-operative society is considered a workplace.
Any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit, or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services, or financial activities including production, supply, sale, distribution or service is a workplace.
Hospitals or nursing homes are workplaces.
Any sports institute, stadium, sports complex, or competition or games venue, whether residential or not, used for training, sports, or other related activities comes under a workplace.
Any place visited by the employee during employment for working or recreational purposes, including transportation by the employer for undertaking such a journey, is a workplace.
Dwelling place or a house from where the employee works is a workplace.

Any sexual harassment an employee faces at the workplace can be reported to the PoSH committee.

The most important part of this definition in section 2(O)(v) says that any place visited by the employee arising out of or during employment, including transportation by the employer for undertaking such journey, is a workplace.

To explain this further, let us consider this example.

An employee working with a firm goes to Delhi to attend a conference on behalf of her office located in Bangalore. A participant there misbehaved with her, and she faced sexual harassment. So the question arises whether she is allowed to complain to the PoSH committee and the employer would investigate this matter or not?

The answer is yes. Both legally and ethically, the employer is liable to initiate an investigation. An employer should ensure that employees work in a safe environment without being subjected to harassment or hostility. This principle even applies if an employee is subjected to racial or sexual slurs when working from home.

CASE LAW- SILAJIT GUHA VERSUS SIKKIM UNIVERSITY AND OTHERS

In this case, the petitioner was a Mass Communication professor at the Sikkim University who filed a writ petition challenging the show cause notice dated 10.06.2019 and the consequent termination order of 28.06.2019 on account of a sexual assault lawsuit filed against him by a student of the department.

He pleaded to the single bench led by Honourable Justice Bhaskar Raj Pradhan that in this particular case, the definition of workplace mentioned under section 2(o) could not be held as in this alleged incident, the place where this incident took place cannot be called a ‘workplace’.

Petitioner claims the PoSH Internal Complaints Committee lacked jurisdiction to hear the complaint because the alleged incident of sexual harassment allegedly occurred at a hotel during a marriage function, which would not fall under the definition of ‘workplace’ under current law. After all, the applicant and complainant went there not arising out of or during employment. The respondent’s advocate stated that under section 2(o)(v), any place visited by the employee arising out of or during including transportation provided by the employer for undertaking such journey would be considered a workplace, and the harassment complaints occurring thus can be handled by the PoSH committee. In his argument, he also relied upon the judgment of Gaurav Aseem Avtej vs. Uttar Pradesh State Sugar Corporation Limited and Others. It was submitted that a statute is best interpreted when we know why it was enacted, and therefore, the definition of the workplace under the PoSH Act of 2013 ought to be interpreted not to defeat the very purpose of its enactment.

In further proceedings, it was held that the definition of the workplace is inclusive rather than exclusive. And the writ petition was disposed accordingly.

CONCLUSION

This case is an example amongst several other suits that the definition of workplace is not limited to offices but is more inclusive, and it doesn’t restrict itself to pre-conceived notions of the working or non-working class or society. And for all five scenarios mentioned at the beginning of this article, it falls under the jurisdiction of the PoSH committee to handle the harassment complaints as it is evident that a workplace is defined as arising out of or during employment with a clear emphasis on the word ‘or’.

We hope this article has solved your queries regarding the interpretation and definition of a workplace pertaining to the PoSH Act. And in case you need any clarification regarding the same, you may connect with us through connect@cecureus.com.

ABOUT THE AUTHOR

Hemansh Tandon is a fourth-year law student from Indraprastha University. He is an avid reader and has a keen interest in writing prose and verses.

REFERENCES

201100000302019_16.pdf (hcs.gov.in) ( the original judgment)
POSH Judgements From Aug 2020: Focus On ICC’s Powers, Concept Of ‘Workplace’ (thelogicalindian.com)
https://indiankanoon.org/
Sikkim University terminates services of mass communication HoD – EastMojo

For more information on the services related to Prevention of Sexual Harassment(POSH), write to us at connect@cecureus.com or call us at +91-7200500221[/vc_column_text][/vc_column][/vc_row]

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