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Implementation of Posh Act In Regards To National Sporting Federations

*Written by Kunwar Malhotra


Introduction


The implementation of the Posh Act in relation to National Sporting Federations aims to strike a balance between successful performance and athlete welfare. In the realm of sports, there exists a delicate tension between achieving victory and ensuring the well-being of athletes. While winning is an essential aspect of sports, it should not come at the expense of athletes' health. When the drive to win overshadows the welfare of participants, the sports environment becomes unhealthy. The Posh Act serves as a necessary measure to protect athletes from coaches and authority figures who exploit their power for sexual purposes. Sexual harassment has become a prominent issue, and sports is not immune to it. Although the Sexual Harassment of Women at Workplace Act was introduced in 2013, its enforcement gradually lost momentum, leaving women who experienced harassment without effective solutions. In the face of these challenges, it became the responsibility of the judiciary and the government to address loopholes and provide remedies for sectors like sports.



What is sexual harassment and abuse in sport?


Sexual harassment and abuse in sports encompass a variety of inappropriate encounters, including sexual harassment, sexual abuse, gender harassment, hazing, and homophobia. Sexual harassment refers to behaviors of a sexual nature that can be verbal, non-verbal, or physical, and can be intentional or unintentional, legal or illegal. It involves an abuse of power and trust, being unwanted or coerced from the victim's or bystander's perspective. Sexual abuse involves engaging in sexual acts without the victim's consent, often through grooming, coercion, or manipulation. It encompasses any non-consensual sexual interaction, often perpetrated aggressively, exploitatively, manipulatively, or with threats. In sports, sexual abuse usually involves manipulating and trapping athletes. Gender harassment involves repeated mistreatment based on gender, not necessarily of a sexual nature. Hazing refers to humiliating or dangerous activities expected of new group members, often with sexual elements. Homophobia involves prejudice, discrimination, and victimization targeting LGBTQ+ individuals. These forms of misconduct exist along a continuum, representing different stages of sexual exploration and exploitation, and the nature of homophobia varies depending on its specific manifestation within this continuum.

Perpetrators of sexual harassment and abuse in sport:

Perpetrators of sexual harassment and abuse (SHA) in sport often occupy positions of authority, such as coaches and individuals within an athlete's support system. While coaches are commonly associated with perpetrating SHA, it is important to recognize that they are not the only perpetrators. Peer athletes also engage in harassing behaviors towards their fellow athletes, particularly in hazing incidents. While male perpetrators of SHA are more prevalent, this can be attributed to the larger representation of males in positions of power within the sports world. However, it is crucial to acknowledge that SHA is not exclusive to males, as females can also engage in such behaviors both within and outside of sport. Additionally, it is important to note that SHA is not limited to heterosexual interactions, as there have been instances of homosexual perpetrators within the sports context. It is vital to understand that sexual orientation is unrelated to the occurrence of SHA, both in sports and in other contexts.[1]



Sexual Harassment Cases in Sports


These instances shed light on the courageous voices of sportswomen who have come forward to share their experiences of sexual harassment and violence.

In 2018, members of the Afghanistan national women's soccer team disclosed that they had endured sexual and physical abuse from individuals within the country's football federation, including its president, Keramuddin Karim. FIFA banned Karim from football for life, and an arrest warrant was issued, although he remains at large.

South Korean short-track speed skater Shim Suk-hee accused her former coach, Cho Jae-beom, of sexual and physical assault when she was a minor in 2018. Cho was found guilty and is currently serving a 12-year prison sentence.[2]

Controversy arose in 2021 when fencer Alen Hadzic, who was under investigation for sexual misconduct, was allowed to represent the US at the Tokyo Olympics. Following concerns raised by a group of female fencers, a safety plan was implemented to keep Hadzic separated from female teammates.

In 2020, Haitian female footballers spoke out against Yves Jean-Bart, the president of the Haitian Football Federation, accusing him of sexual assault and misconduct, including with minors. FIFA subsequently banned Jean-Bart from football for life.

Apart from these examples, India has witnessed a troubling number of sexual harassment cases within its sports community, with five reported instances in the past nine months alone.

These cases highlight the alarming reality faced by sportswomen in India who bravely shared their experiences, exposing a pervasive issue that has been overlooked for too long. Their courage has drawn attention to the urgent need for systemic change within the Indian sports industry.



What is POSH ACT


The POSH Act is a legislation enacted by the Government of India in 2013 to address the issue of sexual harassment faced by women in the workplace.

  • The Act aims to create a safe and conducive work environment for women and provide protection against sexual harassment.

  • The PoSH Act defines sexual harassment to include unwelcome acts such as physical contact and sexual advances, a demand or request for sexual favours, making sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.


Background


The Supreme Court in a landmark judgment in the Vishakha and others v State of Rajasthan 1997 case gave ‘Vishakha guidelines’.

These guidelines formed the basis for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The SC also drew its strength from several provisions of the Constitution including Article 15 (against discrimination on grounds only of religion, race, caste, sex, and place of birth), also drawing from relevant International Conventions and norms such as the General Recommendations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993.[3]



Key Provisions


  • Prevention and Prohibition: The Act places a legal obligation on employers to stop and prohibit sexual harassment in the workplace.

  • Internal Complaints Committee (ICC): Employers are required to constitute an ICC at each workplace with 10 or more employees to receive and address complaints of sexual harassment.

  • The Complaints Committees have the powers of civil courts for gathering evidence.

  • Duties of Employers: Employers must undertake awareness programs, provide a safe working environment, and display information about the POSH Act at the workplace.

  • Complaint Mechanism: The Act lays down a procedure for filing complaints, conducting inquiries, and providing a reasonable opportunity to the parties involved.



Penalties


Non-compliance with the Act's provisions can result in penalties, including a fine of Rs. 50,000, and cancellation of business licenses.



Concerns


There were serious lapses and uncertainties in the implementation of the PoSH Act, for example only 16 out of 30 national sports federations had constituted Internal Complaints Committees as mandated. This reflects poorly on state functionaries, public authorities, private undertakings, organizations, and institutions responsible for implementing the PoSH Act.

These lapses also have a negative impact on women's self-esteem, emotional well-being, and physical health. Also, it makes women reluctant to report instances of sexual harassment due to uncertainty and lack of confidence in the process.



Lack of implementation of sexual harassment prevention laws in sports federations


Sports federations, classified as "state entities" by the law, are obligated to obey with regulations set by the central government. The Wrestling Federation of India (WFI) claims to have an ethics committee in place to investigate misconduct complaints. However, legal experts are concerned about the federation's failure to implement the provisions of the Prevention of Sexual Harassment (POSH) Act. According to the Act, the committee must have a female chairperson, a majority of female members, and an external member. It was the federation's responsibility to establish a healthy system that follows to these requirements, but they have fallen short.

Both the national federation and state federations are responsible for ensuring the establishment of internal complaints committees. The Sports Authority of India at the central level, along with state sports ministries, bear the responsibility of ensuring compliance with the law, as sports falls within the state's jurisdiction.[4]



Violation of PoSH Act by sports federations


A recent investigation by The Indian Express has revealed that more than half of the national sports federations in India do not have the mandatory Internal Complaints Committee required by the Prevention of Sexual Harassment (PoSH) Act of 2013. This includes 16 federations representing various disciplines, even those in which India has participated in major events such as the Asian Games, Olympics, and Commonwealth Games. The absence of the ICC was highlighted during the investigation into the allegations of sexual harassment against Brij Bhushan Sharan Singh, the Chief of the Wrestling Federation of India (WFI) and a BJP Member of Parliament. The findings come at a time when protests demanding the filing of First Information Reports and support for complaints of sexual harassment have been ongoing for 11 days at Jantar Mantar. The lack of compliance with the ICC requirements is concerning, especially given the significant increase in women's participation in sports in recent years.[5]



Supreme Court highlights PoSH Act lapses


The Supreme Court has expressed serious concern over the lack of adherence to the Protection of Women from Sexual Harassment (PoSH) Act, leading to significant lapses and ambiguity in its implementation. This has resulted in numerous working women feeling compelled to leave their jobs due to insufficient measures in place to address harassment issues. Despite the Act being introduced a decade ago, the Supreme Court has highlighted the disappointing state of affairs surrounding the implementation of this crucial anti-sexual harassment law in workplaces. This raises doubts about the effectiveness of the Act and calls for proactive action from both the central and state governments. To address these concerns, the court has directed the Union, States, and Union Territories to conduct a time-bound exercise to verify the establishment of Internal Complaints Committees (ICCs), Local Committees (LCs), and Internal Committees (ICs) as mandated by the Act. The comprehensive review aims to ensure the presence of appropriate committees to effectively address complaints of sexual harassment across various sectors and organizations.[6]




Challenges of implementing the POSH Act in sports federations


  • Lack of awareness: Many sports federations may have a lack of awareness about the provisions and requirements of the POSH Act, resulting in a failure to implement the necessary measures.

  • Resistance to change: There may be resistance from individuals within sports federations who are reluctant to adopt the necessary policies and procedures to address sexual harassment. This resistance could stem from a culture of male domination and the existing power dynamics within the sports industry.

  • Limited resources: Sports federations, especially those with limited funding and support, may struggle to allocate resources towards establishing and maintaining Internal Complaints Committees (ICCs) and conducting necessary awareness programs and training.

  • Gender-based discrimination: Female athletes may already face gender-based discrimination in the sports industry, making it more challenging for them to come forward and report instances of sexual harassment.

  • Lack of reporting mechanisms: Some sports federations may lack proper reporting mechanisms for individuals to safely report incidents of sexual harassment. This can discourage victims from speaking out and seeking justice.

  • Inadequate training and education: Sports federations may not provide sufficient training and education to athletes, coaches, and staff members regarding sexual harassment prevention, reporting procedures, and support mechanisms.

  • Lack of accountability: Due to a culture of impunity and the influence of powerful individuals within sports federations, accountability for cases of sexual harassment may be lacking, leading to a reluctance to take action.

  • Limited media coverage: Women's sports events often receive less media coverage compared to men's events. This can limit the visibility of incidents of sexual harassment in women's sports and make it harder for victims to gain support and raise awareness.

  • Stereotyping and objectification: Female athletes may face objectification and stereotyping based on their appearance rather than their athletic abilities. This can contribute to a hostile environment and make it harder for victims to be taken seriously when reporting incidents.

  • Ethical issues: Sexual harassment in sports involves various ethical concerns, including the abuse of power, violation of trust, infringement of human rights, and the creation of hostile and unsafe environments. Addressing these ethical issues requires a comprehensive approach that goes beyond mere compliance with the law.



Steps taken to address the issues faced by women in sports


  • Education and awareness: Initiatives like the International Olympic Committee's Athlete365 program provide educational resources to athletes, including information on athlete safeguarding and addressing gender-based discrimination.

  • Policy and guidelines development: Organizations such as the Sports Authority of India have implemented guidelines that mandate the presence of female coaches during travel to ensure the safety and support of female athletes.

  • Reporting and complaint mechanisms: Initiatives like the Sexual Harassment Electronic Box provide women with a single-window platform to register complaints of sexual harassment, ensuring a streamlined and accessible reporting process.

  • Accountability and enforcement: Organizations such as the National Human Rights Commission (NHRC) play a role in ensuring accountability by issuing notices and taking action against reported cases of inappropriate behavior or harassment within the sports sector.

  • Support and empowerment: Government initiatives like the Khelo India Scheme have been launched to promote sports at the grassroots level, with a particular emphasis on encouraging the participation of girls. These programs provide support and resources to empower female athletes.

  • Gender mainstreaming: Sports federations and governing bodies are working towards integrating gender equality and inclusivity into their policies and practices, promoting equal opportunities and fair treatment for women in sports.

  • Sensitization and training programs: Various organizations conduct sensitization and training programs for athletes, coaches, and staff members to raise awareness about gender issues, sexual harassment prevention, and creating safe and respectful sporting environments.

  • Collaboration and partnerships: Collaboration between sports federations, government bodies, and non-governmental organizations is crucial to address the challenges faced by women in sports effectively. Partnerships can help pool resources, expertise, and efforts towards creating a supportive ecosystem.


Research and data collection: Collecting data on the experiences and challenges faced by women in sports helps identify specific areas that require intervention and policy changes. Research findings can inform targeted initiatives and interventions.

Leadership and representation: Encouraging and promoting women's leadership and representation within sports federations, coaching staff, and decision-making positions can lead to a more inclusive and equitable environment for female athletes.



Conclusion


The implementation of the POSH Act in sports federations is crucial to ensuring the safety and well-being of women in the workplace. The recent observations by the Supreme Court highlight the urgent need to address the lapses in implementing the Act. It is essential to create awareness among all stakeholders and educate victims about their rights and the available recourse. To effectively implement the Act, sports federations must establish robust reporting and complaint mechanisms that provide a safe space for victims to come forward and seek justice. Training programs should be conducted regularly for both women employees and members of the Internal Complaints Committee (ICC) to ensure they have the necessary knowledge and skills to handle cases of sexual harassment effectively.

Furthermore, there is a need to extend the reach of the Act to cover women working in the informal sector, rural areas, small enterprises, and home-based industries. Efforts should be made to address the unique challenges faced by women in these sectors and provide them with the protection and support they deserve. By taking concrete steps to implement the POSH Act, sports federations can contribute to creating a culture of respect, equality, and inclusivity for women in sports. It is imperative to prioritize the safety and dignity of women in the workplace and empower them to thrive without fear of harassment. Only through collective efforts can we build an environment where every woman can pursue her passion for sports freely and without hindrance.








*The author is a lawyer from India








(The image used here is for representative purposes only)



References

[1] https://www.ungender.in/sexual-harassment-in-sports-in-india/#:~:text=Frequently%2C%20cases%20of%20sexual%20harassment,go%20untouched%20with%20nominal%20consequences. [2] https://www.sportanddev.org/latest/news/sexual-harassment-sport [3] https://www.drishtiias.com/daily-updates/daily-news-analysis/protection-of-women-from-sexual-harassment-act-2013 [4] https://www.indiatoday.in/law/story/sexual-harassment-prevention-laws-in-place-but-glaring-lack-of-implementation-say-lawyers-2324357-2023-01-20 [5] https://theleaflet.in/alarmed-by-rampant-violations-of-prevention-of-sexual-harassment-act-in-sports-nhrc-issues-notice-to-16-federations/ [6] https://www.thehindu.com/news/national/supreme-court-flags-serious-lapses-in-protection-of-women-from-sexual-harassment-act/article66844150.ece

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