Navigating Challenges In Upholding Workplace Safety: A Comprehensive Analysis Of The Posh Act Implementation

Introduction:

Sexual harassment in the professional realm remains a pressing issue for women, in relation to which the Indian government has enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, commonly known as the PoSH Act.[1]

This legislation was enacted with the primary objective of providing women with a secure working environment, the Act institutes mechanisms to prevent and address complaints related to sexual harassment.[2] It is a crucial step toward empowering women by offering legal recourse and fostering a culture of respect and equality in professional settings.

Despite its positive impact, the PoSH Act faces implementation challenges explored in the article. These include issues such as limited awareness, reluctance to report incidents, and the necessity for more effective redressal mechanisms. The recent judicial scrutiny of PoSH Act cases will be examined, shedding light on the accountability gap in implementing the POSH Act. The article will further explore instances where organizations may fall short in enforcing preventive measures or adequately addressing complaints. Emphasizing the need for enhanced accountability, the Supreme Court’s directives will be a central focus which provides a roadmap for organizations to enhance compliance and ensure effective implementation.

Key Definitions in the PoSH Act

Sexual Harassment: The PoSH Act meticulously defines sexual harassment, encompassing physical contact, sexual advances, requests for sexual favours, sexually coloured remarks, showing pornography, and other unwelcome sexual conduct. Five circumstances connected to these acts are identified as constituting sexual harassment.[3]

Workplace: The Act expands the definition of ‘workplace’ beyond traditional offices, covering diverse organizations and non-traditional work settings. Importantly, it applies to all public and private sector organizations, organised and unorganised sectors throughout India.[4]

Employee: The Act’s definition of an employee is inclusive, covering every person employed regularly, temporarily, contractually, or even without the knowledge of the principal employer. The term “aggrieved woman”[5] under the Act means a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent.

Challenges and Lacunae in the Implementation of the PoSH Act

A distinctive aspect of the legislative framework established by the Act is the conscious decision by lawmakers to refrain from burdening an already strained judicial infrastructure. Instead, the Act mandates the establishment of an Internal Committee at every workplace having 10 or more workers. The primary purpose of this committee is to receive and investigate complaints of sexual harassment, adhering to the prescribed processes outlined in both the Act and the accompanying Rules. Simultaneously, the Indian Penal Code, of 1860 underwent an amendment with the incorporation of Section 354A, elevating sexual harassment to the status of a criminal offense.[6]

Judicial Scrutiny and Accessibility Challenges

In a recent judgment, the Supreme Court drew attention to the deficiencies in the constitution of Internal Committees (ICs) by establishments, emphasizing the need for proper establishment and functioning.[7] The court highlighted a newspaper report revealing that 16 out of the 30 national sports federations in the country had yet to establish ICs. This revelation emerged amid protests by wrestlers in Delhi against the head of the Wrestling Federation of India (WFI), Brij Bhushan Sharan Singh, for alleged acts of sexual harassment. The judgment further underscored concerns about improperly constituted ICs, pointing out instances where committees either had an insufficient number of members or lacked a mandatory external member.

Additionally, sexual harassment cases in workplaces are significantly underreported in India due to various reasons. While the law aimed to address complaints more effectively within civil institutions to spare women from navigating the complexities of the criminal justice system challenges such as inefficient functioning, a lack of awareness among female employees about committees and reporting procedures have resulted in barriers akin to those associated with the formal justice system.

Importantly, the power dynamics within organizations and fears of professional repercussions further deter women from filing complaints. Addressing these multifaceted concerns is essential for fortifying the effectiveness of the PoSH Act and ensuring a safer and more equitable work environment for women across India.

Supreme Court Directives for Strengthening the Act’s Implementation:

In a concerted effort to fortify the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 and ensure the safety of working women in India, the Supreme Court has emphasized the urgent need for addressing the pervasive issue of sexual harassment through effective implementation of the Act and issued the following directives:

1. Timebound Verification Exercise: The Central and State governments are mandated to conduct a “timebound exercise” to meticulously verify the constitution and composition of ICCs, LCs, and ICs. This comprehensive examination extends across Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, and all entities designated as workplaces under the PoSH Act.
2. Enhanced Information Accessibility: To promote transparency and ease of access, organizations are directed to publish information about ICCs, LCs, and ICs on their respective websites. This includes details about contact persons, complaint-filing procedures, and the pertinent rules and regulations governing these committees.
3. Broad Compliance Assessments: Beyond governmental and public entities, similar verification exercises are to be conducted by Statutory bodies at the Apex and State levels, including those regulating professionals such as doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers, and others, as well as by universities, colleges, Training Centres, educational institutions, government, and private hospitals/nursing homes. This extension ensures a comprehensive implementation of the PoSH Act across diverse sectors and workplaces.
4. Training Programs for Committee Members: Employers, management, and authorities are instructed to take “immediate and effective steps” to acquaint members of ICCs, LCs, and ICs with their roles and responsibilities. This involves the implementation of robust training programs designed to enhance the understanding of committee members regarding their duties and the intricacies of the inquiry process.
5. Regular Orientation and Awareness Initiatives: Employers, management, and authorities are further directed to conduct regular orientation programs, workshops, seminars, and awareness campaigns. These initiatives are designed to educate members of ICCs, LCs, and ICs, as well as women employees and women’s groups, about the provisions of the PoSH Act. The objective is to foster a culture of awareness and understanding surrounding the Act.

Conclusion

In conclusion, the journey of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, reflects a significant step in India’s legal landscape to combat workplace harassment. The Act, with its meticulous definition of sexual harassment and inclusive coverage of diverse workplaces and employment types, stands as a crucial instrument for fostering secure environments for women employees.

However, the article underlines the multifaceted challenges hindering the full realization of the Act’s objectives. From issues like limited awareness, reporting reluctance, and deficient redressal mechanisms persist. The recent Supreme Court directives bring a ray of hope, urging a comprehensive and timebound verification of committees, enhanced information accessibility, and broad compliance assessments.

Addressing these challenges and lacunae, it is crucial for organizations, government authorities, and stakeholders to collaborate in bridging gaps, clarifying definitions, and strengthening accountability measures. Ultimately, a collective and sustained effort is essential to create a safer and more equitable work environment for women across India, fulfilling the intended objectives of the PoSH Act.

FAQs

[1] Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013, [Act No 14 of 2013]

[2] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, [Act No 14 of 2013], Statement of Objects and Reasons

[3] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, [Act No 14 of 2013], Section 2(n)

[4] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, [Act No 14 of 2013], Section 2(o)

[5] Section 2(a) of the Act.

[6] Ins. by Act 13 of 2013, s. 7 (w.e.f. 3-2-2013)

[7] Aureliano Fernandes v. State of Goa, 2023 SCC OnLine SC 621, decided on 12-05-2023.

King Stubb & Kasiva,
Advocates & Attorneys

Click Here to Get in Touch

New Delhi | Mumbai | Bangalore | Chennai | Hyderabad | Mangalore | Pune | Kochi | Kolkata
Tel: +91 11 41032969 | Email: info@ksandk.com