A well renowned actress of Bengali Film Industry recently filed a police complaint against one of the producers of her upcoming film. The actress alleged to be a victim of sexual harassment. In her complaint she has stated that she received derogatory and sexual harassing emails along with death threats. She even alleged that the respondent had shared her personal email id with other associates, who in turn have been constantly sending sexual emails comprising of nude images along with threats of hacking her social media accounts and uploading of obscene images on public domain as the report says. 1
The #MeToo Movement in India was also brought in limelight by a Film Actress who alleged herself to be sexually harassed on a film set by her co-actor. This movement gained tremendous momentum within a short span as it brought awareness in the society pertaining to instances of sexual harassment among celebrities. A strata of society we all believed to be immune to this ill. As a result, this became the medium for many women to raise their voice against such heinous crime.
A few years back a former Miss Universe and Bollywood actress, had also alleged herself of being sexually harassed by an employee of the company during the advertisement shoot and finally the multinational brand behind the shoot had to render a huge amount as compensation.
Looking at these instances questions that mainly come up are:
- Whether the acts and behaviors of sexual harassment on film sets and other similar platforms are actionable under the POSH Act?
- Can a film shoot unit be considered as a workplace as defined under the POSH Act?
- Can contractual employees file a complaint under the POSH Act?
- Who shall be the Employer in such scenarios?
To understand this better, we need to examine some of the provisions of the POSH Act
Sexual Harassment as defined under the POSH Act:
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013:
"An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto."
To constitute sexual harassment as defined under the Act:
- The alleged act of sexual harassment must have been conducted in the workplace as defined under the Act.
Workplace under the POSH Act:
People wrongly believe that workplaces are confined to traditional work spaces which is limited to four walls of a building. The applicability of the POSH Act on Film Units/TV Sets/OTT production units/Studios or any other such platforms is still a grey area for most of the people as it does not confine to traditional workspaces. For a long time most of these platforms failed to comply with the provisions of the POSH Act which led them to suffer heavy pecuniary penalties as well as brand loss.
The definition of workplace is not exhaustive, temporary as well as permanent both are covered. Therefore, the film sets or units, having a limited duration or we can say short term duration, will also be covered under the ambit of workplace.
The legislators were aware that in changing world, new forms of employment, employees and employers are likely to come up alongside new extended workspaces under the purview of the act and therefore, the concept of extended workplace becomes relevant here.
Section 2(o) (iv) of the Act defines workplace, including:
"any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service"
The above definition makes it clear that any private organisation or venture or a unit who is engaged in carrying out whether commercial or entertainment based activities, shall be covered under the ambit of workplace.
Further in the case ofSaurabh Kumar Mallick vs. Comptroller and Auditor General of India and Anr. (2008) it was clarified by the court that a narrow and pedantic approach should not be adopted to define the scope of workplace being only limited or restricted to physical office.
Constitution of Internal Committee (IC):
A Film Set or a Unit is a place where actors, producers, directors, performers, choreographers, musicians, crew members, casting units, and other personnel work together to earn a better result or outcome.
Undoubtedly, Film Industry is one of the biggest employer as an industry in India but the instances of sexual harassment therein have short lived bursts but then get lost in the glamour in such workplaces.
As we all are well acquainted with the fact that it is a statutory mandate for every employer having more than 10 number of employees to constitute an IC as defined under the Act. The IC so formed is responsible for handling and addressing complaints of sexual harassment at workplaces. But are Film Units obligated to constitute an IC?
The Women in Cinema Collective (WCC) filed a Public Interest Litigation (PIL) against the Association of Malayalam Movie Artists ("AMMA") in 2018 to the Kerala High Court seeking establishment of a robust redressal mechanism as defined under the Act in the Malayalam film industry, for prevention of sexual harassment at workplaces in letter and spirit.
The Respondent filed a counter affidavit contending that there is no employee employer relationship between the petitioner and the respondent and therefore, the organization is not required to set up an IC.
On analyzing the facts in align with the provision of the Act, in the year 2022, the Hon'ble High Court adjudged that, "The production unit of each film industry is an establishment employing Actor, Artists and other workers and therefore, such production units have to maintain an Internal Committee, if they are engaging more than 10 workers, as is contemplated under the Act, 2013".
The court opined that though the organization associated with the film industries are not employers of the Actors, Artists. However, these organisations may have their own structure, in which employees are there and therefore, if there are any women employees employed by such organisations, they are duty bound to constitute an IC, if the employees are exceeding 10 in number in contemplation of Section 4 read with Section 6 of the Act, 2013.
The Court specifically made it clear that any organization, establishments, private institutions are employing workers whether for wages or not in contemplation of the provisions of the act coming under the definition of employer, employee and workplace, they are duty bound to constitute an IC and will have to adhere to the provisions of the Act.
The court's judgment in the aforesaid PIL is a stepping stone in the right direction, a step towards making every workplace, no matter its nature, a safe one for women.
Further, even if the organisation is not duty bound to constitute an IC, a complaint can also be filed before the Local Committee constituted under section 6 of the Act.
The Act also does not refrain the aggrieved woman from filing a police complaint. That is to say, a complaint under the POSH Act and a police complaint can also run simultaneously.
Recently, an urgent notice has also been issued by the district of New Delhi mandating all the companies to form an Internal Committee as defined under the POSH Act, 2013. 2
Is POSH Act applicable to Contractual Employees?
The definition of Employee provided under Section 2(f) of the POSH Act, 2013 includes temporary, permanent, contractual as well as daily wage employee.
"Any person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name"
There are thousands of employees involved in a film production unit or similar platforms comprising of permanent, temporary, daily wage based employees, etc. Interestingly, the celebrities that is to say, the actor or actresses involved in a particular film or project or unit or advertisement shoots, they all are generally hired on contract basis and for a limited period. Hence, they can be referred as contractual employees. As such, they too shall fall under the definition of Employee as provided under the Act.
The POSH law is a comprehensive legislative framework. Aggregators being digital platforms, can be considered as Principal Employer and are therefore, also covered under the regime of POSH Act.3
Who shall be held liable when an Act of Sexual Harassment occurs in a Film Set or Unit?
In case any employee alleges to be sexually harassed during the shoot or the set or production unit at any time, the principal employer who is generally the producer of such unit or the studio or the set, as the case may be, shall be held liable for such instance/act, irrespective of the fact that the alleged incident occurred with or without his knowledge.
Section 2(g) of the Act defines Employer including, any person responsible for the management, supervision and control of the workplace.
The Act clearly states that it is the responsibility of the Employer to ensure the safety of all the employees in its workplace and to comply with the provisions of the POSH Act. Failing to do, shall result in violation of the law and penal consequences.
Therefore, when the former Miss Universe was sexually harassed by an employee of the company while shooting for an advertisement, the liability was imposed upon the advertising company, being the employer, for the alleged act of the perpetrator.
2 For more details, refer to https://ssrana.in/articles/government-notifications-posh-compliance-india/
3 For more details, refer to https://ssrana.in/articles/liability-online-aggregators-posh-act-2013/
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.