Introduction
In Visakhapatnam, Andhra Pradesh, on the intervening night of March 28 and 29, 2024, a shocking incident unfolded1. A 17 year old student, in the first year of diploma at Engineering College (hereinafter referred to as the “College”), ended her life by jumping from the College building. The student had alleged in her last message to her family that the faculty members of the College were sexually harassing and blackmailing her. A police case was registered against the College management for Abetment to suicide (Section 306 of the Indian Penal Code and under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Andhra Pradesh Prohibition of Ragging Acts.2
What is POCSO Act?
In 2012, the Government of India took a step towards safeguarding children from sexual abuse by enacting the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The POCSO is a special legislation that 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 Act was enacted as a responsive mechanism against the significant growth in cases of child sexual abuse in the country. As per a report, there has been shocking surge in reported cases of sexual violence against children by 96% from 2016 to 2022. 3
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).
Case reference: Pawan Kumar Niroula 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 Jawahar Navodaya Vidyalaya in Sikkim (hereinafter referred to as the “School”), against whom allegations of sexual harassment were made by 67 female students of the School.
Facts of the Case
The Principal of the School had file a written complaints against the accused with the Officer-in-charge of Ravangala Police Station to the effect that he received complaints from several students of the School on February 14, 2020. On the basis of the complaint, the Police Station registered the case under Section 10 of the POCSO Act wherein the Accused was arrested but subsequently released on bail. The Accused was arrested but subsequently released on bail.
Simultaneously, the School initiated the disciplinary proceedings against the Accused of which he was not informed about officially. It was only through an unofficial source he came to know that he was placed under suspension. On sending an email to the School, the Accused inquired about his status as he intended to join the servicers, he was informed that he was placed under suspension in terms with the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
However, the School constituted a committee as per the notification (hereinafter referred to as the Notification) released on December 20, 1993 prescribing the constitution of the committee for summary trial into the allegations of sexual harassment against any teacher of the School., thereby dispensing with the regular disciplinary proceedings under the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
Contentions of the parties
- The constitution of the committee for summary trial was challenged by the Accused stating it to be irregular in the eyes of law as the same was not in accordance with provisions of the POSH Act.
- The contention of the Accused were that since the allegations against him were in the nature of sexual harassment, therefore, the School ought to have constituted an Internal Complaints Committee and such committee shall be deemed to be the inquiry authority appointed by the disciplinary authority.
- The School, however, contended that the case being of a workplace would not be applicable in the present scenario as the allegation were made by the girl students of the School hence the provisions of the POSH Act are not applicable to the School.
Judgement
- The Notification carried legal force since the same was upheld by the Supreme Court in another case, however, the law pertaining to sexual harassment at workplace has gone a sea-change after the law declared by the Hon'ble Supreme Court in the case of Vishaka v. State of Rajasthan5 and after the enactment of the POSH Act. The Court held, “The POSH Act now occupies the field and it prescribes a mechanism to deal with complaints of sexual harassment.”
- Though the committee was constituted in terms of the Notification issued by the School, the committee dehors of the fundamental legal requirements under Section 4, and has now lost its statutory force
- The Court held that the committee constituted to conduct summary trials was without adhering to the mandatory requirements of the POSH Act and rules thereunder.
- The Court while dealing with the contention of the School regarding non-applicability of the POSH Act in the present case held that the definition of ‘aggrieved woman' 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: (i) physical contact and advances; or (ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature |
The POCSO Act punishes the following offences: 1. Sexual assault 2. Aggravated sexual assault 3. Sexual harassment 4. Use of child for pornographic purposes |
|
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 |
1. The POSH Act was specifically enacted to protect ‘women' from the social evil of sexual harassment prevailing at workplaces. Therefore, the Act per se restricts applicability on other genders. However, the organisations can make ‘gender neutral/inclusive' POSH Policies. 2. A complaint of sexual harassment under this Act can be made against both the genders i.e. man and/or woman. |
1. The POCSO Act protects ‘children' and is applicable to all individuals below the age of 18 years irrespective of their gender. 2. Both men and women can be tried for committing any offence under this Act. |
|
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.6 |
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. 7 |
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 state8 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. 9 |
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: 1. Imprisonment for 3 to 5 years (with fine) for committing sexual assault on a child; 2. Punishment for penetrative sexual assault – not less than 10 years which can extend to life imprisonment with fine;10 3. Punishment for aggravated sexual assault – minimum 5 years to maximum 7 years with fine. 11 4. The punishment for aggravated penetrative sexual assault- rigorous imprisonment for term not less than 20 years, but which may extend to imprisonment of life (remainder of natural life of that person) and also be liable for fine or with death.12 5. Punishment for sexual harassment - imprisonment of either description for a term which may extend to 3 years and shall also be liable for fine.13
|
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.
Footnotes
4. WP. CT 86 of 2021
5. (1997) 6 SCC 241
6. Section 11 (3) of the POSH Act
7. Medha Kotwal Lele & Others v. Union of India and Others, (2012) 9 SCR 895
8. 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.
9. Section 16 of the POSH Act
10. Section 4 of the POCSO Act
11. Section 10 of the POCSO Act
12. The punishment for aggravated penetrative sexual assault was increased by way of amendment 2019 (Section 6 of the POCSO Act)
13. Section 12 of the POCSO Act
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