The story so far: Ten years after the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH) came into force, the Supreme Court Bench of India has said there are “serious lapses” and “uncertainty” regarding its implementation, issuing directions to the Union, States, and Union Territories to verify if all government bodies had formed Internal Complaint Committees and to ensure that the composition of such panels is in strict adherence with the Act.
How was the PoSH Act formed?
In 1992, Bhanwari Devi, a social worker with the Women’s Development Project of the Rajasthan government was gang-raped by five men after she tried to prevent the marriage of a one-year-old girl. While hearing pleas filed by activist groups against the crime, the SC, noting the absence of any law “enacted to provide for effective enforcement of the basic human right of gender equality” guarantee against “sexual harassment at workplaces”, laid down a set of guidelines in 1997, christened the Vishakha Guidelines, to fill the statutory vacuum till a law could be enacted. These were to be “strictly observed in all workplaces” and were binding and enforceable in law. The Court 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.
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Notably, the recent flagging of lapses in the Act by the apex court is not the first time it has had to issue directions for robust implementation, it had to intervene and issue follow-up directions for the implementation of the Vishakha Guidelines multiple times after 1997. Meanwhile, the National Commission for Women submitted drafts of a Code of Conduct for the Workplace in 2000, 2003, 2004, 2006 and 2010.
After this, the Protection of Women against Sexual Harassment at Workplace Bill was introduced by then Women and Child Development Minister, Krishna Tirath, in 2007. It was later tabled in Parliament and went through amendments. The amended Bill came into force on December 9, 2013, as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) or PoSh Act.
How are sexual harassment, the workplace, and an employee defined under the PoSh Act?
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. It also lists down five circumstances that would constitute sexual harassment if they are connected to the above-mentioned acts- (i) Implied or explicit promise of preferential treatment in employment (ii) Implied or explicit threat of detrimental treatment in employment (iii) Implied or explicit threat about present or future employment status (iv) Interference with work or creating an intimidating or offensive or hostile work environment and (v) Humiliating treatment likely to affect health or safety.
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Under the Act, an employee is defined not just in accordance with the company law. All women employees, whether employed regularly, temporarily, contractually, on an ad hoc or daily wage basis, as apprentices or interns or even employed without the knowledge of the principal employer, can seek redressal to sexual harassment in the workplace.
The law expands the definition of ‘workplace’ beyond traditional offices to include all kinds of organisations across sectors, even non-traditional workplaces (for example those that involve telecommuting) and places visited by employees for work. It applies to all public and private sector organisations throughout India.
What are the requirements imposed on employers?
The law requires any employer with more than 10 employees to form an Internal Complaints Committee (ICC) which can be approached by any woman employee to file a formal sexual harassment complaint. It has to be headed by a woman, have at least two women employees, another employee, and, to pre-empt any undue pressure from senior levels, to include a third party such as an NGO worker with five years of experience, familiar with the challenges of sexual harassment. Besides, the Act mandates every district in the country to create a local committee (LC) to receive complaints from women working in firms with less than 10 employees and from the informal sector, including domestic workers, home-based workers, voluntary government social workers and so on.
These two bodies have to conduct inquiries in line with the POSH Act and comply with the “principles of natural justice” stated in the Rules of the Act. A woman can file a written complaint either to the internal or local complaints committee within three to six months of the sexual harassment incident. There are two ways to resolve the issue by the committee- “through conciliation” between the complainant and the respondent (which cannot be a financial settlement), or committees could initiate an inquiry, taking appropriate action based on what it finds.
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The employer has to file an annual audit report with the district officer about the number of sexual harassment complaints filed and actions taken at the end of the year. It also makes the employer duty-bound to organise regular workshops and awareness programmes to educate employees about the Act, and conduct orientation and programmes for ICC members. If the employer fails to constitute an ICC or does not abide by any other provision, they must pay a fine of up to ₹50,000, which increases for a repeat offence.
What are the hurdles to the Act’s implementation?
The Supreme Court in its recent judgment called out the lacunae in the constitution of ICCs, citing a newspaper report that 16 out of the 30 national sports federations in the country had not constituted an ICC to date. This report came in the backdrop of the wrestler’s protest in Delhi against Wrestling Federation of India (WFI) head Brij Bhushan Sharan Singh for alleged acts of sexual harassment.The judgment also flagged the improper constitution in cases where the ICCs were established — pointing out that they either had an inadequate number of members or lacked a mandatory external member. This, however, is not the only implementation-related concern when it comes to the PoSH Act. Since its enactment, legal experts, stakeholders, and former members of such committees have raised several concerns with the law and its implementation.
One of the concerns is that the Act does not satisfactorily address accountability, not specifying who is in charge of ensuring that workplaces comply with the Act, and who can be held responsible if its provisions are not followed. Advocate and human rights activist Vrinda Grover is of the opinion that State governments need to take up the slack. “Has any State government asked or tried to find out if companies are following the provisions?” Notably, the government had told the Parliament in 2019 that it maintains no centralised data regarding cases of harassment of women at workplaces.
Stakeholders also point out how the law is largely inaccessible to women workers in the informal sector as more than 80% of India’s women workers are employed in the informal sector. Additionally, experts have noted that in workplaces sexual harassment cases are hugely underreported in India for a number of reasons. The framers of the law had recognised that complaints could be more effectively addressed within civil institutions (workplaces) so that women did not have to go through the daunting processes of the criminal justice system related to accessibility and timeliness. However, the inefficient functioning and the lack of clarity in the law about how to conduct such inquiries, and lack of awareness in women employees about such committees and who to approach in case of facing harassment, have ended up duplicating the access barriers associated with the justice system. Most importantly, the power dynamics of organisations and fear of professional repercussions also stand in the way of women for filing complaints.
In cases of sexual harassment, concrete evidence is often lacking but it does not necessarily amount to the absence of a crime. However, in multiple judicial interventions, the courts have been seen to be reluctant in addressing this inherent tension and ended up giving more reliance on evidence. Women have even been penalised and lost their employment. While the law says that inquiries conducted by ICCs/LCs should follow principles of “natural justice” as done in the judiciary, stakeholders, as well as the Saksham Committee report (2010), have pointed out that the due process requirement for ICs should be distinct from the that employed by the legal system, keeping in mind the nature of sexual harassment as a form of gender-discrimination, where women are disproportionately affected in patriarchal systems.
What are the SC’s recent concerns and directions?
The Supreme Court Bench comprising Justices Hima Kohli and A.S. Bopanna give its 62-page verdict in an appeal filed against a March 15, 2012 judgment of the Bombay High Court dismissing a Goa University employee’s writ petition against a disciplinary authority’s decision to dismiss him from service on the basis of complaints of sexual harassment.
“Being a victim of such a deplorable act (sexual harassment) not only dents the self-esteem of a woman, it also takes a toll on her emotional, mental and physical health,” the Court said.
Commenting on the effectiveness of PoSH, the Court said: “However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless and until there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors.”
“If the authorities/managements/employers cannot assure them a safe and secure workplace, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt,” Justice Kohli wrote in the judgement.
The court directed the Union, States and UTs to undertake a time-bound exercise to verify whether Ministries, Departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc. had constituted Internal Complaints Committees (ICCs), Local Committees (LCs) and Internal Committees (ICs) under the Act. These bodies have been ordered to publish the details of their respective committees in their websites. They were given eight weeks to comply and file affidavits in the apex court.
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