Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) has completed a decade of implementation. Indeed it is a laudable piece of legislation.
Providing guidance and assistance in the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) in corporate settings is one of the key areas of practice at Compass Law Associates. Since the initiation of the POSH Act in 2013, the CLA team has actively engaged in various Internal Committee boards, effectively handling a substantial caseload.
The Supreme Court of India, in a landmark judgement of May 12, 2023, CIVIL APPEAL NO. 2482 of 2014, expressed its concern of non-adherence to the Act. A significant moment occurred on May 12, 2023, when the Supreme Court of India, in a landmark judgment (CIVIL APPEAL NO. 2482 of 2014), expressed its apprehension regarding the lack of adherence to the Act.
The Bench expressed its concern, stating, “It is disquieting to note that there are serious lapses in the enforcement of the Act even after such a long passage of time. This glaring lacuna has been recently brought to the fore by a National daily newspaper that has conducted and published a survey of 30 national sports federations in the country and reported that 16 out of them have not constituted an ICC till date. Where the ICC have been found to be in place, they do not have the stipulated number of members or lack the mandatory external member. This is indeed a sorry state of affairs and reflects poorly on all the State functionaries, public authorities, private undertakings, organizations and institutions that are duty bound to implement the PoSH Act in letter and spirit.”
(Click here) MJ Akbar v. Priya Ramani case
Undoubtedly, the PoSH Act is a robust legislation enacted at an opportune time, and it aligns completely with the Supreme Court’s perspective on the existence of deficiencies in implementation. Ensuring the thorough implementation of any legislation is essential for its effective utilization by the citizens of a country.
During our awareness sessions, it is disconcerting to observe that many participants are unaware of the existence of such an act, let alone the Internal Committee (IC) and its functions and significance. Some heads of management even expressed concerns that conducting awareness sessions may result in an excess of information, potentially leading to malicious complaints and misuse of the act. This is not true. The act explicitly outlines the repercussions for false and malicious complaints in Section 14(1), making them actionable under the act.
Since 2013, both personally and as part of my team, we have dealt with a spectrum of cases ranging from innocent “good morning” messages gone awry to instances involving the exchange of physical favors for financial gain. Throughout the redressal process, we maintained a meticulous approach, ensuring that we did not exceed the boundaries set by the Act while diligently working towards achieving its objectives.
In its concluding remarks, the Supreme Court judgment emphasized, “Being a victim of such a reprehensible act not only undermines the self-esteem of a woman but also has detrimental effects on her emotional, mental, and physical well-being. It is frequently observed that when women encounter sexual harassment in the workplace, they hesitate to report such misconduct. Some may even choose to resign from their positions. A contributing factor to this reluctance to report is the uncertainty about whom to approach under the Act for the resolution of their grievances.”
(Click here) Auerliano Fernandez case
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) is a commendable legislation implemented at the right time to safeguard women in the workplace from harassment and abuse. Despite certain gaps and gray areas that require thorough consultations with all stakeholders for suitable amendments, the POSH Act remains a significant and transformative measure in the protection of working women.
Since the enactment of the act in 2013, organizations were initially entrusted to uphold its provisions independently for safeguarding culture, brand, and employee well-being. However, this autonomy led to a defeat of the act’s purpose. Due to non-adherence and a lack of oversight from concerned authorities, the act struggled to demonstrate its efficacy, resulting in a rise in complaints and cases. Disheartened individuals lost faith in the Internal Committee (IC), prompting them to seek redressal through the legal system. Despite the well-structured nature of the act, complaints were escalating, and resolutions were becoming elusive.
The act is designed intricately to prevent trivialization of complaints, ensuring they are addressed early on and resolved amicably, delivering justice to the victims. If uniformly implemented and followed the act meticulously, the recent intervention by the Supreme Court directing adherence to the act might have been not necessary.
The SC emphasizes that, “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 working environment continues to remain hostile, insensitive and unresponsive to the needs of women employees, then the Act will remain an empty formality.”
(Click here) Sanjeev Mishra Case
I must acknowledge and proudly emphasize that a significant portion of our clients demonstrates exceptional diligence and meticulous adherence to the provisions of the act. This commitment contributes to fostering an organizational culture that promotes a respectful work environment. Consequently, employees experience a heightened sense of security, channeling their energies towards the growth and branding of the organization.
Presently, numerous cases are bypassing the IC redressal system due to a lack of implementation of the act’s objectives. Indian courts, across jurisdictions, have delivered landmark judgments on the POSH Act, reinforcing its mandates, clarifying provisions, and reminding both state and non-state organizations of their obligation to adhere to the act.
In the majority of inquiries, I’ve handled, both the complainant and respondent often display ignorance and naivety regarding their own behaviors and struggle to grasp what constitutes sexual harassment in the workplace as per the law, primarily due to a lack of awareness. This ignorance stems from a general lack of awareness. Furthermore, many constituted Internal Committees (ICs) lack a thorough understanding of the process and often lack proper training on how to effectively handle complaints. It’s essential to note that the POSH Act is not solely focused on redressal; it equally emphasizes prevention and prohibition.
(Click here) Dr. Malabika Bhattacharjee v.Internal Complaints Committee, Vivekananda College & Ors case
In a recent incident, the HR department, ironically which also serves as the Internal Committee (IC), hastily and directly imposed an “indefinite suspension” on the respondent upon receiving coordinated complaints. This was done without issuing a show cause notice or seeking an explanation regarding the allegations, all before initiating the formal inquiry. This action taken by the HR cum IC disregarded the principles of natural justice, suspension regulations under applicable laws, and the provisions of the POSH Act. It’s important to note that the Internal Committee (IC) cannot solely be held responsible for this lapse. The issue stems from the improper formation of the IC itself, compounded by the lack of adequate training provided to the IC members and the appointment of an inexperienced external member.
It appears that the entire framework of the POSH Act resembles a pot with multiple holes, unable to sustain the implementation process effectively. This is primarily due to the absence of a robust check mechanism for compliance, the lack of mandatory instructions for providing awareness training to both staff and IC members, and a compulsory requirement for the proper formation of ICs.
While the act contains certain ambiguous aspects leading to interpretational challenges, it is a progressive legislation that outlines proper redressal procedures. Unfortunately, its full effectiveness is compromised due to the identified loopholes, leading to a rise in cases that leave organizations, complainants, and respondents without proper resolution.
It is imperative that organizations take the Supreme Court’s instructions seriously and implement them both in letter and spirit. Additionally, government authorities should establish a robust check mechanism and issue mandatory instructions for the effective implementation of the act, lest penalties and appropriate actions be initiated. If these gaps persist, the act may lose its significance and becoming just another book in law office libraries.
-By Priya Iyengar