Introduction
The POSH Act and Bharatiya Nyaya Sanhita (BNS) are two significant legislative frameworks in India. While the POSH Act focuses on preventing and addressing sexual harassment at the workplace, the BNS is a comprehensive penal code that replaced the Indian Penal Code.
One of the key aspects of the relationship between the POSH Act and BNS is the definition of sexual harassment. Both frameworks define sexual harassment similarly, but the BNS has a broader scope, covering various forms of harassment, including those that occur outside the workplace.
Another important aspect is the provision for punishment. Under the POSH Act, the punishment for sexual harassment is limited to disciplinary action, such as suspension or termination of employment or payment cuts or with-holding the promotion, increment etc. In contrast, the BNS prescribes more severe punishments, including imprisonment and fines or both, for various forms of harassment.
The BNS also introduces new provisions that complement the POSH Act. For instance, Section 75 of the BNS deals with sexual harassment and prescribes a punishment of up to 3 years imprisonment. Additionally, the BNS provides for the establishment of special courts to try cases related to sexual harassment and other offenses against women.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH) is a separate legislation which was specifically designed to address sexual harassment in the workplace. This means that changes made to the BNS do not directly change the POSH Act or its procedures.
Organisations must continue to follow the existing POSH Act of 2013, as no amendments have been made to it directly. Despite this, the changes to the BNS have had a significant impact on the implementation and enforcement of the POSH law in India. These changes can act as learning which can be adopted by organisations to fortify their commitment to the POSH Act and build a strong anti-harassment culture.
Understanding of Sexual Harassment:
The BNS has given expanded definitions to crimes, including a very exhaustive definition to the offence of “Sexual Harassment”. Its definition under Section 354A of the BNS is as follows: “Sexual harassment includes unwelcome physical contact and advances, requests for sexual favors, making sexually coloured remarks, showing pornography against someone’s will, and any other unwelcome behaviour.”
Therefore, the BNS now criminalises several acts, whether subtle or apparent, as sexual harassment. For organisation, this extended understanding of sexual harassment holds several key takeaways for ensuring successful implementation of POSH directives, such as:
This definition is similar to how sexual harassment has been defined under the POSH Act. Hence, it signifies the importance for organisations to communicate to the immediate and appropriate consequences for any instance of sexual harassment, regardless of its perceived severity.
The broad understanding of harassment impresses upon employers the need to create policies that clearly define what constitutes sexual harassment, focusing on subtle and non-verbal forms.
This also emphasises the need for organisations to encourage employees to speak up about any inappropriate behavior, assuring them that even minor misconducts will be taken seriously.
Updates and Protections
The Bharatiya Nyaya Sanhita now ensures that complainants of sexual harassment are informed about the progress of their cases, with mandatory updates on investigations. Complainants are provided with robust legal support and protections to ensure they can report offences without fear of retribution or dismissal. Such provisions are also made in the POSH Act.
Organisations can emulate the principles laid down by the BNS and POSH Act, by establishing clear guidelines that ensure a fair and unbiased investigation process. They must ensure that complainants are fully informed of their rights, the steps involved in filing a complaint, and what to expect during an inquiry and also regarding the false complaint made by the complainant, if proven wrong then complainant can be put to a great hardship. Further, they may also assist by:
- Offering psychological counseling services to complainants, helping them to feel supported and understood.
- Building better access to legal resources, ensuring that complainants can pursue their cases without any fear.
- Monitoring the workplace environment closely after a complaint is filed to ensure that the victim is not facing any kind of retaliation.
- Providing complainants with ongoing support and assurance that their safety and well-being are a priority for the organisation.
Differences:
Similar definitions of sexual harassment: Both the POSH Act and BNS define sexual harassment similarly, highlighting the importance of addressing this issue.
Differing punishments: The POSH Act prescribes disciplinary action, while the BNS prescribes more severe punishments, including imprisonment and fines or both.
Complementary provisions: The BNS introduces new provisions that complement the POSH Act, such as the establishment of special courts to try cases related to sexual harassment.
BNS mark a transformative advancement in India’s legal framework, particularly enhancing the POSH Act, 2013. These legislative reforms provide a rationalized and comprehensive approach to addressing sexual offences and managing evidence, thereby strengthening protections for aggrieved women of workplace sexual harassment and ensuring more effective implementation of the POSH Act.
Section 354A
BNS offers an expansive definition of sexual harassment, covering unwelcome physical contact, sexually coloured remarks, and demands for sexual favours. This precise categorization ensures that various forms of harassment are distinctly identified and addressed. For example, unwelcome physical contact now includes specific acts previously subject to broader interpretations under the IPC. This clarity aids in more accurate legal actions and ensures that the POSH Act’s objectives of preventing and addressing workplace harassment are effectively met.
BNS imposes stringent penalties for assault with intent to disrobe, providing a robust legal deterrent against severe forms of sexual misconduct. This provision complements the POSH Act’s administrative remedies by offering significant criminal sanctions for extreme cases. By integrating these enhanced penalties, the legal system ensures a more comprehensive approach to addressing severe harassment, which the POSH Act’s administrative mechanisms alone might not fully cover.
Another key aspect of BNS is its focus on protecting the victim’s identity. Section 228A mandates confidentiality throughout legal proceedings, which is vital (in camera-proceedings). In a society where fear of public exposure often prevents victims from speaking up, this provision aligns perfectly with the POSH Act’s aim to encourage reporting by creating a supportive and safe environment.
Complementing the BNS, modernizes evidence handling, particularly concerning electronic records. Given the increasing role of digital evidence such as emails, text messages, and other electronic communications in substantiating harassment allegations under the POSH Act. It mandates that electronic records must be authenticated to be admissible in court, ensuring the reliability and credibility of digital evidence.
Also, the BNS presumes the authenticity of properly authenticated electronic records, simplifying the legal process by accepting such evidence as valid unless proven otherwise. This presumption supports the POSH Act by facilitating the use of digital evidence in harassment cases. The BNS also provides guidelines for handling obscene material in electronic form, ensuring effective management and use of digital content relevant to sexual harassment cases.
The BNS further mandates the retention of electronic records for a specified period, ensuring that evidence related to POSH complaints remains available for review throughout investigations and adjudications.
The integration of the BNS with the POSH Act enhances its effectiveness by addressing previous gaps in the legal framework. The BNS offers detailed legal definitions and penalties that align with the POSH Act’s objectives, ensuring that offences are categorized and addressed more diligently. This alignment reinforces the POSH Act’s goal of creating safer work environments by strengthening legal measures against sexual harassment.
Practically, the integration of the BNS with the POSH Act has significant implications for managing sexual harassment cases. For instance, if an aggrieved person files a complaint involving inappropriate emails, the POSH Act’s Internal Committee (IC) will have to investigate the complaint. The BNS’s provisions would ensure the authentication and preservation of the electronic evidence, while definitions and penalties would guide the legal response to sexual harassment, providing a clear path for prosecution and resolution. Similarly, in severe cases such as an attempted assault, the BNS’s stringent penalties ensure that the case is treated with the necessary seriousness.
In conclusion, while BNS introduce much-needed reforms, their true value will be determined as we navigate and adapt to their application in real-world scenarios. This is a pivotal moment for those dedicated to this cause, and should see how these changes will influence the future of workplace safety.
This article was written as Adv JM Nagashree as a part of POSH Certification Course.