In its recent judgment in Aureliano Fernandes vs. State of Goa and Others, the Supreme Court of India, observed that even after a decade of the prevention of sexual harassment law being formulated – the implementation and enforcement is still inadequate. Lack of procedural awareness; lack of confidence in the process and outcome; lack of strict adherence to the enforcement regime and other practical challenges are the main reasons. 'However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless there is strict adherence to the enforcement regime and a proactive approach by all State and non-State actors' the Court observed. While the directions issued by the Supreme Court in this case predominantly concern government departments and authorities, companies, too, should prioritise and undertake review of compliances under the POSH Act.
Just last year, the Supreme Court (SC), in a landmark judgment, took wilful cognisance and expressed concern over what is termed a 'sorry state of affairs' surrounding the implementation of Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (POSH Act). Observing 'serious lapses' and 'uncertainty' in the enforcement of the POSH Act, and to remedy the situation, SC issued directions which, among other things, included directions around conducting regular orientation programmes, workshops, seminars and awareness sessions to upskill members of the Internal Committee (IC) and to educate employees on the POSH law. The SC referred to a newspaper report which revealed that – 'out of 30 national sports federations in the country, only 16 had constituted IC, as mandated under the POSH Act', and where IC were established, they either had an inadequate number of members or lacked a mandatory external member – highlighting a lack of measurement of progress and a perception gap between statements and action, with companies sometimes perceived as paying lip service to sexual harassment issues.
Last month, as per a survey conducted by Stratefix Consulting, in collaboration with the National Human Resource Development (where 400 working professionals, comprising all genders and different age groups participated) only 8% people were aware of POSH policy prior to 2021; 11% said that they would leave the organisation rather than choose to report sexual harassment; 37% people (largely women) experienced sexual harassment at work and 17% either feared or had no idea of their option to report sexual harassment. According to another survey conducted by Walchand Plus, in November 2023, a staggering 40% of working women experiencing insecurity were unaware of the protective measures offered by the POSH Act and 53% of HR professionals do not understand the POSH Act. These findings are not only shocking but serve as a grim reminder that our quest for gender equality must incorporate strict actions aimed at eradicating sexual harassment as a main driver of workplace inequality – clearly, one-time online trainings for new employees and circulating/uploading POSH policy on the intranet is not enough when employees are uncertain on how and to whom to report sexual harassment.
27 years ago, India got its first guidelines to prevent sexual harassment at workplace (in the landmark case of Vishakha v. State of Rajasthan). Sadly, it took 16 years, after the Vishakha guidelines, to enact a law. December 09, 2023, marked 10 years since the enforcement of the POSH Act and corresponding rules. As we celebrate Women's Day, and a decade of the POSH Act being legislated, let's look at how several drafting lacune continue to exist in both the POSH Act and the rules.
While some of the provisions of the POSH Act are gender-neutral (for instance, 'any person' can file an appeal against the decision of IC), as far as applicability is concerned, sexual harassment law is not gender-neutral, and under the POSH Act only an 'aggrieved woman' (employed as well as associated with the organization in any capacity, as a visitor or customer) can file a complaint, thereby excluding men and LGBTQ+ community. The POSH Act, mandates formation of local committees by district administration to investigate sexual harassment complaints from women from the informal sector and workplaces with less than 10 employees, however, there is no data or information available on functioning and effectiveness of such local committees.
Interestingly, the definition of sexual harassment is similar in the POSH Act and the Bharatiya Nyaya Sanhita 2023 (BNS 2023), though the period of limitation is different. Under the POSH Act, limitation period for filing the sexual harassment complaint with the IC is 3 months from the date of the incident/last incident, whereas, under Section 75 of the BNS 2023 which deals with sexual harassment and the punishment for it, the limitation period is 3 years from the date of the incident, as provided under Section 514 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Recently, the upper house of the Indian Parliament, circulated a bill that proposes to amend certain provisions of the POSH Act – extending time limit to file the complaint from 3 months to 1 year, from the date of the incident/last incident and removing the upper limit of 3 months for IC to condone delays in filing of sexual harassment complaints. Undoubtedly, this is a positive development, as victim needs time to muster the courage to file the complaint, especially in sexual harassment cases where there is fear of reprisal, losing one's livelihood, stigma associated with coming forward, and risk of tarnishing one's professional and personal reputation, but it is yet to come into force. Also, no statutory timeline is provided either for conducting conciliation or implementing the settlement, if any, arrived through conciliation.
Moreover, the POSH Act is silent on the compulsory presence of the external member (appointed to provide an unbiased / neutral perspective), handling of anonymous complaints of sexual harassment, whether the inquiry report has to be unanimous or basis of majority and provision for appeal against an order of settlement arrived through conciliation. Area where further clarity is required, is how to handle
(and by which IC) sexual harassment complaints where victim and perpetrator belong to different organizations and enforceability of IC recommendations in such cases. Additionally, while a few provisions of the POSH Act provide cursory protection against retaliation and victimization of complainants and witnesses of sexual harassment, it does not provide any definitive protection or safeguards. This is crucial, as in most cases, complainant/witness is less likely to come forward if they doubt the level of confidentiality and protection against retaliation.
Despite strenuous efforts to address sexual harassment, progress is slow and sometimes frustrating –POSH Act still faces implementational issues such as limited awareness, reluctance to report incidents
(and where reported, lack of transparency, confidence in personnel charged with carrying out investigations and outcome) and necessity for more effective redressal mechanism especially for disabled employees, who are more likely to experience sexual harassment than their non-disabled peers and 95%of the women who work in the informal sector. Although comprehensive trainings and policies are the foundations, many organizations have not yet fully embedded and consistently reinforced these learnings, compounding ongoing concerns about conduct and reporting. Creating a 'speak up' culture, is a priority, with robust confidentiality and anti-victimization measures. No doubt, these implementational issues can be rectified through efficient and effective implementation (and monitoring, to understand grey areas) of the mechanism provided under the POSH Act, but the real challenge, which goes beyond this, is achieving the 'cultural change'.
Author: Madhvi Datta, Partner at Kochhar & Co. Views are personal.
