by Aggarwals Associates | Jan 24, 2023 | Criminal Lawyers, General, Labour Law Lawyers, MSME, Parliament
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013(herein after referred as PoSH Act) is the first and the only legislation in Indian laws that deal specifically with sexual harassment of Women at the workplace. Though, India has several criminal and civil provisions that are related to sexual harassment and also have prescribed punishment for the same under section 354 of the Indian Penal Code (hereinafter referred to as IPC) which speaks about outraging the modesty of a woman. The defined punishment of which is 1 year of imprisonment or fine or can be both depends on the discretion of the court.
What is Sexual harassment?
The definition of sexual harassment is well-defined in the POSH Act, It states that “sexual harassment is any unwelcome sexual behaviour, whether directly expressed or implied, and includes the case of physical contacts and advances, or sexual favour demanded or requested, or making remarks with sexual overtones, or showing pornography or other offensive material, or acting in an unwelcome sexual manner through physical, verbal, or non-verbal means.
Who is Employee under the PoSH Act?
Section 2(f) “employee” defines any person employed at a workplace on a regular, transitory, ad – hoc basis, or daily salary basis, whether directly or via an agency, including a contractor, for any task, with or without the knowledge of the principal employer, whether for remuneration or not, or working voluntarily or otherwise, whether the terms of employment are express or implied, and entails a co-worker, probationer, a contract worker, trainee.
What are the different objectives of the PoSH Act?
PoSH is an act to protect, prevent and prohibit sexual harassment of women at workplace. The main objective of the PoSH Act is to provide a safe and healthy workplace to each and every employee of any organisation. In addition to this it is essential to give a dignified life to all their female employee. The sexual harassment not only means physical torture but it also includes passing sexual comments, bullying, body shaming, taunting and other minor things by the colleagues and higher authorities.
What are the two main committees constituted under PoSH Act?
The two main committees constituted under PoSH Act for preventing the sexual harassment at work place: Internal and Local Committees.
Internal Committee: It is mandatory for every organisation to set up an internal committee if the company is equipped with more than 10 or more employees. The committee is to be formed under the provisions of the PoSH Act and the quorum of members is to be decided according to the provisions of the legislation. The non-compliance of which will attract a fine of Rs.50,000.
Local committee: A local committee is established in each district for dealing with the matter of sexual harassment in the workplace. Before registering the complaint in the local committee, one should go to the internal committee. The committee is established under Section 5 of the PoSH Act by repealing &the Amendment Act of 2016.
Powers of the committee: With the introduction of two different committees, powers are also specified in the Act. The committee can
- Summon and interrogate the accused person under the oath.
- Can ask for the discovery of documents.
- Any other things that are essential for the case.
The legislation deals with all the basic provisions such as definition, punishment, and appropriate channels to complain for any sort of physical and mental harassment faced by any women at their workplaces and it also assures that the women stays safe.
–Surbhi Singla
Associate at Aggarwals& Associates, S.A.S, Nagar Mohali.
by Aggarwals Associates | Aug 7, 2019 | Parliament
This is a series of articles with an attempt to apprise the readers of the important provisions added (or modified or deleted) via the Amendment Bills passed or about to be passed by the Legislature in the present Session, as underneath the gamut of details written and deliberated upon in the Legislature various important provisions are foreshadowed.
The Protection of Children from Sexual Offences (Amendment) Bill, 2019
- Penetrative sexual assault: The Bill increases the minimum punishment for committing a penetrative sexual assault from seven years to ten years. Furthermore, it adds that if a person commits a penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine. According to the Act, a person commits a ‘penetrative sexual assault’ if he:
- Penetrates his penis into the vagina, mouth, urethra or anus of a child; or
- Make a child to do the same; or
- Inserts any other object into the child’s body; or
- Applies his mouth to a child’s body parts.
- Aggravated penetrative sexual assault: The definition of ‘aggravated penetrative sexual assault’ includes cases when a police officer, a member of the armed forces, or a public service commits penetrative sexual assault on a child. It also covers cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant. The Amendment Bill adds two more additional grounds to the definition which includes: (i) assault resulting in the death of the child; and (ii) assault committed during a natural calamity, or in any similar situations of violence. The Bill also increases the minimum punishment from then years to twenty years, and the maximum punishment is the death penalty.
- Aggravated sexual assault: Under the Act, the definition of ‘sexual act’ includes a person’s act of touching the vagina, penis, breast or anus of a child with sexual intent without penetration, whereas, ‘aggravated sexual assault’ includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child. The Amendment Bill adds to more grounds which constitute offenses which are: (i) assault committed during a natural calamity; and (ii) administrating or help in administering any hormone or any chemical substance, to a child for purpose of attaining early sexual maturity.
- Pornographic purposes: The Act penalizes a person using a child for pornographic purposes to fulfill its sexual gratification. The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including, but not limited to, photograph, video, digital or computer-generated image. In addition, the Bill enhances the punishment for certain offenses, a few which are:
| Offense |
2019 Bill |
POCSO Act, 2012 |
| Use of a child for pornographic purposes. |
· Minimum: 5 years. |
· Maximum: 5 years. |
| Use of a child for pornographic purposes resulting in penetrative sexual assault. |
· Minimum: 10 years (in case of a child below 16 years = 20 years).
· Maximum: life. |
· Minimum: 10 years.
· Maximum: life. |
| Use of a child for pornographic purposes resulting in aggravated penetrative sexual assault. |
· Minimum 20 years.
· Maximum: life or death penalty. |
· Life imprisonment. |
| Use of a child for pornographic purposes resulting in sexual assault |
· Minimum: Three years.
· Maximum: Five years. |
· Minimum: Six years.
· Maximum: Eight years. |
| Use of a child for pornographic purposes resulting in aggravated sexual assault. |
· Minimum: Five years.
· Maximum: Seven years. |
· Minimum: Eight years.
· Maximum: Ten years. |
- Storage of pornographic material: The Bill provides that the punishment for the storage of pornographic material for commercial purposes can be imprisonment between three to five years, or a fine, or both. Furthermore, the Bill adds two more offenses for storage of pornographic material which are: (i) failing to destroy, delete, or report pornographic material involving a child; and (ii) transmitting, displaying, distributing such material except for the purpose of reporting it.
The Protection of Human Rights (Amendment) Bill, 2019
- Composition of NHRC: Under the Act, the Chairperson of the NHRC is one who has been a Chief Justice of the Supreme Court. The Bill adds a Judge of the Supreme Court can also be considered to be a chairperson of NHRC. Furthermore, the Act provides for two persons having special knowledge of human rights to be appointed as a member of the NHRC. The Bill amends this to allow three members to be appointed, of which at least one will be a woman. Under the Act, Chairpersons of various commissions such as the National Commission for Scheduled Caste (NCSC), National Commission for Scheduled Tribes (NCST), and National Commission for Women (NCW) are the members of NHRC. The Bill provides for including the Chairpersons of the National Commission for Backward Classes (NCBC), National Commission for the Protection of Child Rights (NCPCR), and the Chief Commissioner for Person with Disabilities as members of NHRC.
- Chairperson of SHRC: Under the Act, the Chairperson of a SHRC is a person who has been a Chief Justice of High Court. The Bill amends this to provide that a person who has been Chief Justice or a Judge of a High Court will be Chairperson of SHRC.
- Reduction in tenure: Under the present Act, the Chairperson and members of the human rights bodies will hold the office for five years or till the age of seventy years, whichever is earlier. The amendment provides a reduction in the tenure of Chairperson of national and state human rights bodies to three years from the current five years. The Bill also removes the five year limit for re-appointment, which was allowed under the present Act.
- Powers of Secretary-General: The Act provides for a Secretary-General of the NHRC and a secretary of a SHRC, who exercise powers as delegated to them. The Bill amends this and allows the Secretary-General and Secretary to exercise all administrative and financial powers, subject to the respective chairperson’s control.
- Functions of Union Territories: The Bill provides that Central Government may confer on SHRC, functions being discharged by Union Territories. The functions related to human rights in Delhi will be treated by NHRC.
The Unlawful Activities (Prevention) Amendment Bill, 2019
- Who may commit an act of terrorism: Under the Act, the Central Government may designate an organization as a terrorist organization if it commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism and otherwise involved in terrorism. The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.
- Approval for the seizure of property by NIA: If the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director-General of NIA would be required for seizure of properties that may be connected with terrorism.
- Investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill provides the authority to officers of the NIA, of the rank of Inspector or above to investigate the cases.
- Insertion to the schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979). The Bill adds the International Convention for Suppression of Acts of Nuclear Terrorism (2005) in the treaty list.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019
- Declaration of talaq to be void and illegal: The Bill makes all declaration of talaq, including in written or electronic form, to be void and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.
- Offense and penalty: The Bill proposes to declare the practice of triple talaq as void and illegal and made it an offense punishable with imprisonment up to three years and fine, and triable by Judicial Magistrate of the first class. The offense will be cognizable only if the information of offense is given by the married against whom the talaq has been declared or any other person related to her by blood or marriage. The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman, and if Magistrate is satisfied that there are reasonable grounds for granting bail.
- Allowance: A Muslim woman, against whom talaq has been declared, entitled to seek subsistence allowance from her husband for herself and her children. The amount will be determined by the Magistrate.
- Custody: A Muslim woman, against whom talaq has been declared, entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.
– Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S Nagar (Mohali)
by Aggarwals Associates | Aug 5, 2019 | Parliament
This is a series of articles with an attempt to apprise the readers of the important provisions added (or modified or deleted) via the multitude of Amendment Bills passed or about to be passed by the Legislature in the present on-going Session, as underneath the gamut of details written and deliberated upon in the Legislature various important provisions are foreshadowed which goes unseen from the eyes of the common populace. This multi-part article beckons to embark upon a trail to unearth these important changes.
The Companies (Amendment) Bill, 2019 [Passed]
- Re-classification of certain offences: Out of 81 compoundable offences enlisted in the 2013 Act, 16 of these have been re-categorized as ‘civil defaults’, where adjudicating officers which have been appointed by the Central Government, may now impose penalties. A few of these offences include: (i) failure to file the annual return; (ii) providing shares at a discounted rate, etc.
- Corporate Social Responsibility (CSR): The original Act necessitates companies, which have to provide for CSR, to disclose the reasons for not spending their funds fully in their annual report. The amendment now mandates the companies to transfer the unspent amount to one of the funds listed under Schedule 7 of the Act (e.g. PM Relief Fund) within six months of the financial year. However, if the funds are unspent for some other on-going project(s), then that amount will have to be transferred to an ‘Unspent CSR Account’ within thirty days after the end of the financial year and are to be spent within three years. If the amount is kept unspent post the three year period, then the said amount is to be transferred to one of the funds listed under Schedule 7 of the Act. Violation, if any, would attract a fine between Rs. 50,000 to Rs. 25,00,000 and every defaulting officer may also be punished with imprisonment of up to three years or fine between Rs. 50,000 to Rs. 25,00,000 or both.
- Commencement of business: The Bill states that a company may not commence business, unless it, (i) files a declaration within 180 days of incorporation, confirming that every subscriber to the Memorandum of the company has paid for the shares agreed to be taken by him, and (ii) files a verification of its registered address with the Registrar of Companies (RoC) within 30 days of its incorporation. On failing to comply, the name of the company may be removed from the RoC.
- Registration of charges: The Bill changes the deadline for companies to register charges (e.g. mortgages) on their property from 30 days (extendable up to 300 days upon seeking permission from RoC) to 60 days (extendable by 60 days).
- Beneficial ownership: A person is required to make a declaration of his interest in a company in which he holds a beneficial interest of at least 25% shares in a company or exercises considerable influence or control over the company. The Bill mandates every company to identify such an individual who is a significant owner and mandates their compliance under the Act.
The Insolvency and Bankruptcy Code (Amendment) Bill, 2019 [Passed]
- Resolution plan: The Code provided for a resolution plan which a financial creditor may file via an application before the National Company Law Tribunal (NCLT) for initiating the insolvency process. Under the Code, the resolution plan must ensure that the operational creditors receive an amount which should not be less than the amount they would receive in case of liquidation. The Bill amends this provision to the extent that the amounts to be paid to the operational creditor should be the higher of (i) amounts receivable under liquidation; and (ii) the amount receivable under a resolution plan, if such amounts were distributed under the same order of priority (as for liquidation). Further, the Bill states that this provision would also apply to insolvency processes (i) that have not been approved or rejected by the NCLT; (ii) that have been appealed to the National Company Law Appellate Tribunal (NCLAT) or Supreme Court; and (iii) where legal proceedings have been initiated in any court against the decision of the NCLT.
- Representative of financial creditors: The Bill mandates that the representative of financial creditor (who is representing a class of creditors on the Committee of Creditors (CoC) beyond a certain number to whom debt is owed) will vote on the basis of the decision taken by the majority of the voting share of the creditors that they represent.
- Initiation of resolution process: According to the Code, the NCLT must determine the existence of default within 14 days of receiving an application for initiating insolvency proceedings. The Bill now mandates that in case the NCLT does not find the existence of default and has not passed an order within 14 days, it must record its reasons in writing for the same.
- Time limit for the process: Under the Code, the process must be completed within 180 days, which may be extended by a period of up to 90 days. The Bill now amends this and adds that the process must be wrapped up within 330 days. This time period includes time for an extension, if, granted and the time taken in legal proceedings in relation to the process. Upon the enactment of the Amendment Bill, if any case is pending for more than 330 days, then it must be resolved within 90 days.
Code of Wages, 2019 [Passed]
- Scope: The Code will apply to all the employees. Central Government will make wage-related decisions for employments in sectors such as Railways, Mines, etc. and with respect to requisite sectors, it is the State Government who will make decisions.
- As per the Code, wages include salary, allowance or any other component expressed in monetary terms, but this does not include bonus or traveling allowances, among others.
- Floor wage: As per the Code, the Union Government will fix the floor wage, taking into consideration the living standards of workers. Furthermore, it may set up different floor wages for different geographical areas. The minimum wages decided by the Central Government or the State Government must be higher than the floor wage fixed by the Central Government.
- Overtime: Either of the government at Centre or State may fix the number of hours that would account a normal working day. In case the employees work in excess of a normal working day, they will be entitled to overtime wage, which must be at least twice the normal rate of wages.
- Deductions: Under the Code, an employee’s wages may be deducted on certain grounds including but not limited to (i) fines; (ii) absence from duty; or (iii) recovery of any advances given to an employee. But, these deductions should not exceed 50% of the total wage.
- Determination of bonus: All employees whose wages do not exceed a specific monthly amount, notified by the Central or State Government, will be entitled to an annual bonus. The bonus will be at least: (i) 8.33% of his wages; or (ii) Rs. 100, whichever is higher. Furthermore, the employer will distribute a part of the gross profits amongst the employees in proportion to the annual wages. An employee can receive a maximum of 20% of his annual wages.
- Advisory Boards: The Central and State Governments will constitute Advisory Boards which will advise the respective governments on issues pertaining to (i) fixation of minimum wages; and (ii) increasing employment opportunities for women. The Central Board would consist of (i) employers; (ii) employees (in equal number as employers); (iii) independent persons; and (iv) five representatives from State Governments. Furthermore, the State Advisory Boards will consist of (i) employers; (ii) employees; and (iii) independent persons.
The Arbitration and Conciliation (Amendment), Bill 2019 [Passed]
- Arbitration Council of India (ACI): The Amendment Bill proposes to establish an independent body of ACI, for the promotion of arbitration, mediation, conciliation, and other alternative disputes redressal (ADR) mechanisms, which will function to (i) frame policies for grading arbitral institutions and accrediting arbitrators; (ii) making policies for the establishment, operation, and maintenance of uniform professional standards for all ADR matters; and (iii) maintaining a depository of arbitral awards made in India and abroad.
- Composition: (i) Chairperson who is either a Judge of the Supreme Court; or (ii) a Judge of a High Court; or (iii) Chief Justice of a High Court; or (iv) an eminent person with expert knowledge in the conduction of an arbitration proceeding. Other members will include an eminent arbitration practitioner, an academician with experience in arbitration and government appointees.
- Appointment of arbitrators: Under the original Act, the parties to the dispute were free to appoint arbitrators, and in the event of a disagreement for the same, the said parties could request the Supreme Court or the jurisdictional High Court, or any other person or an institute designated by such Court to appoint an arbitrator. Now, under the amendment Bill, the Supreme Court will designate arbitral institutions, which parties can approach for the appointment of arbitrators in international commercial arbitration and with respect to the domestic arbitration, the appointments will be made by the institution designated by the jurisdictional High Court. In the latter, where there are no arbitral institutions available, then, the Chief Justice of the said jurisdictional High Court may maintain a panel of arbitrators to perform the necessary functions of the arbitral institutions.
- Time limit: The Amendment Bill seeks to remove the time restriction for international commercial arbitration where the arbitral tribunals were mandated to make their award within a period of 12 months for all arbitral proceedings. The Bill now adds that the tribunals must endeavor to dispose off the international arbitration matters within 12 months.
Confidentiality of proceedings: The Amendment Bill necessitates that the arbitration proceedings will be kept confidential except for the details of the award in certain circumstances.
– Jashan Preet Singh Sidhu
Advocate, Punjab & Haryana High Court, Chandigarh
Associate Partner at Aggarwals & Associates, S.A.S Nagar (Mohali)
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