IN order to contain the spread of COVID-19 in India, Prime Minister Narendra Modi advised people to practice social distancing and imposed a nationwide lockdown. It can be seen that this lockdown, which has been extended since does not only exist in a physical sense but has also caught the Indian economy in a stranglehold. Corporates and the firms made a switch from a physical workspace to remote workspace. It must be noted that though work from home is not a standard practice in the country, various corporates are considering to continue with this remote model even after the situation normalises.
Several concerns have been expressed with respect to this recent change to the nature of workspace in the socio-legal sphere of the country. It is essential to note that ever since this way to work has become the convention now, there may arise various issues in the near future regarding ‘cyber workplace harassment’. Thus, the article focuses on the need to extend the protection of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH Act”] to digital workspaces thereby providing similar protection to the victims as it exists in physical workplaces.
Expanding the ‘Workplace’: The Dawn of Telecommuting
In times of Corona and emergence of ‘work from home’ as the new norm, it is important to address whether remote working set-up comes under the definition of ‘workplace’ within the ambit of the POSH Act? This can be inferred from a perusal of the bare provisions of the statute which provides for a “dwelling place or house” as a workplace for the purposes of this Act.
Interpreting any provision of a statute requires an unbiased and coherent analysis in light of the legislative intent behind it so as to eliminate arbitrariness. The same exercise needs to be undertaken in the present scenario for arguing that the work from home needs to be integrated properly into the legal framework. Technology and more precisely the internet has its own share of problems with one of them being the possibility of abuse. The problems of cyber-bullying, online harassment and stalking have increased manifold, and their effects reverberate in the workspace as well.
The intent of the legislature behind the POSH Act was to ensure that equality of status and equal protection of the law is afforded to working women in the country. It can hence be rightfully implied that the said statue has a beneficial connotation and should be construed in that light. As per the rules of interpretation of statutes, that have evolved over time in Indian jurisprudence, it is the duty of courts to interpret a provision in a liberal manner. Such an approach needs to be adopted more so in cases of statutes that intend to benefit a class of people so that the object behind the law is not negated.
In the present case, to understand the term “dwelling place or house” in a sense relating only to domestic help/servants would be narrow and restrictive and needs to be avoided so as to ensure equity. The dynamic approach herein would be to broaden the scope of the definition of ‘workplace’ to ensure inclusion of telework and afford protection from any form of unwanted sexual advances in cyberspace. This would be in line with the object and purpose behind this piece of legislation of protecting the interests of women at the workplace from any form of sexual harassment and providing swift and efficient justice.
Protection laid down under various legislations against cyber harassment
The POSH Act does not define sexual harassment in an exhaustive manner which is evident from the wording of the provision that any unwelcome act or a comment qualifies as harassment if it makes the woman, to whom it is directed, uncomfortable. Furthermore, it would be incorrect to assume that the protection of law under the Act only extends to such employees within the physical workspace, as has already been established above. It would therefore only be appropriate to say here that all acts of sexual harassment against a woman that take place during the ordinary course of business, irrespective of whether the act happens in a physical or a digital workspace, is protected against and covered under the POSH Act.
It would also be pertinent to note here that since such an act of sexual harassment happens in a cyber space, i.e. on an electronic platform, an added layer of protection of the Information Technology Act, 2000 [“IT Act”] is also extended in this regard. Section 67 of the IT Act prescribes punitive measures for publishing and/or transmitting obscene content on an electronic platform. Section 67A stipulates punishment for publishing or transmitting material containing any sexually explicit act, in an electronic form. Such cases of online harassment can also attract penal provisions of Sections 354A, 354D or 509 of the Indian Penal Code, 1860. These prescribe punishment for a perpetrator who sexually harasses a woman by stalking her on internet, and through his words or act or gesture intends to insult the modesty of a woman.
The only lacunae that exists in the protection granted by law is the dismal reporting rate with regard to such crimesdue to the stigma attached to it. If a case of cyber harassment does not even get reported on the online platform, then legal proceedings cannot be initiated and therefore the protection extended by law cannot be availed by the aggrieved woman. This needs an overhaul so as to ensure preservation of the victim’s anonymity which would consequently lead to an increase in the number of reported cases and serving justice efficiently.
Information and Communications Technology as a whole has its own advantages but at the same time has the potential to be abused in a way that adversely affects the moral fabric of the society. The crime of sexual harassment in cyber workspace is one such example of gross misuse of technology and needs to be curbed in an expeditious manner.
The practice of telecommuting has now been adopted in the face of the ongoing pandemic across the globe, including India. Due to the existence of undesirable elements in the Indian society, women always face a danger of being subjected to sexual harassment/unwanted sexual advances, especially at the workplace. Despite the protection of POSH Act, the current conditions require a certain widening of its ambit. To quote the noted jurist and academician, Salmond, “The essence of law lies in the spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it.”
The previous sections of the article have dealt with how the work from home structure falls under the definition of workplace for the purpose of the said Act. The next step, i.e. ensuring transparent, efficient and anonymous reporting of such incidents through online portals, and their swift redressal in accordance with the law. This is even more crucial and remains to be addressed in the near future.
(Rishabh Chhabaria and Abhigyan Tripathi are undergraduate students of law at Rajiv Gandhi National University of Law (RGNUL), Punjab)
Note: This is an opinion piece, and the views expressed are the authors’ own.