POSH Act, a biased legislation: Busting the myth!

Posted On - 1 October, 2019 • By - Richa K Gaurav

Industrialization and globalization paved way for
influx of women in the workforce, resultantly, prevention of sexual harassment
at workplace assumed greater importance. Harassment and discrimination violates the fundamental rights
of a person, impedes growth and exposes to physical and emotional suffering
coupled with mental trauma.

Protection against sexual harassment and the right
to work with dignity are universally recognised human rights by international
conventions and instruments. The Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act, 2013 (“POSH Act”) is aimed at providing
a safe, secure and dignified working environment to women free from all forms
of harassment. Redressal of grievance and fair adjudication of the complaint is
a sine qua non for dispensation of

The legislation has safeguards to ensure that the
safety of men at work is not jeopardised and that the provisions of the POSH
Act are neither used as a weapon to settle personal vendetta nor misused by
filing false complaints which can have repercussions on men as they undergo
torture, extortion and public humiliation so much so that it leaves them
scarred for life both at personal and professional fronts.

under the POSH Act:

The POSH Act has safeguards to check the menace of
false complaints and prevent misuse of the legislation so as to ensure justice
is served to worthy: –

  1. Initiation of Action Against
    False Complaint
    : – The POSH Act specifically provides that if the Internal Complaints
    Committee /Local Committee (“ICC” or “Committee”) arrives at a conclusion that
    either the complaint was malicious or false evidence was adduced to avail
    favourable orders, the ICC may recommend t action against the complainant as
    per the applicable service rules of the employer. Same actions could be taken
    against the Complainant as would have been taken against the accused, if found
    guilty under the provisions of the said Act.
  • Limitation on Filing of
    the Complaint: –
    Under the POSH Act, there is a specific limitation for filing of the complaint.
    Asper Section 9 of the POSH Act, complaint can be filed before the ICC within a
    period of three months from the date of incident and in case of a series of
    incidents, within a period of three months from the date of the last incident.
    The particular provision ensures and limits the scope of retaliatory
    complaints, as even if the complaint is accepted by the Committee after a delay
    of three months, the Complainant had to assign the reason for delay. Most of
    the false cases of sexual harassment are usuallytriggered by some incident between the parties, after which an
    afterthought complaint is filed, the probability of such cases shall reduce
    because of the limitation to file such complaints.
  • Well Trained Internal
    Complaints Committee (“ICC” or “Committee”)
    : – The POSH Act read with applicable rules clearly
    specify that it is the duty of the employer to ensure and make provisions for
    conducting orientation programmes and seminars for the members of the ICC, organising
    capacity building and skill building programmes for the members of the ICC in
    order to ensure that there is a well-trained and skilled committee of members
    in place who are well informed about the subject matter. A well-trained and
    skilled internal complaints committee shall be able to adjudicate the complaints
    in a more effective way and shall be able to decide on the complaints
    effectively after considering and analysing the situation and the facts along
    with evidences placed before them. There is no doubt that dealing with
    workplace sexual harassment complaints is often complex, that is the reason,
    the POSH Act, itself acknowledges the importance of having a committee in place
    which possess critical skills/capacity to effectively carry out their roles.
  • External Member to be Part
    of the ICC: –
    The POSH Act clearly provides for one external member to be part of the
    ICC. The external member shall be from amongst non-governmental organisations
    or associations committed to the cause of women or a person familiar with the
    issues relating to sexual harassment. Such expertise will greatly benefit the
    ICC in terms of fair and impartial handling of the complaint leading to a
    rational order. One of the very basic objectives to involve an external member
    is to ensure that the parties to the complaint can be self-assured that the
    internal dynamics or management of the workplace shall not be having any effect
    on the working of the external member.
  • Informal Mechanism of
    Resolving the Complaint: –
    Many a time there is a misunderstanding between the parties, and intent of
    the accused gets misconstrued in a different manner to the complainant. In
    order to prevent such situations, the POSH Act mandatorily requires the ICC to
    explore the possibility of conciliation between the parties before initiating
    an inquiry and at the request of the aggrieved woman take steps to settle the
    matter between her and the respondent through conciliation, provided the basis
    for such proceedings are not monetary settlement.
  • Principles of Natural
    Justice to be Followed: –
    The intent of the legislation is to ensure that no party should be
    condemned unheard, the POSH Act specifically states that the ICC should follow
    the principles of natural justice while conducting the inquiry into the complaint
    which means that the respondent should be given reasonable opportunity to
    present his case. Once the complaint is filed, a copy of the complaint along
    with the documentation filed with the complaint is required to be shared with
    the respondent within 7 days from the date of receipt of the Complaint.
    Respondent gets a reasonable time and opportunity to reply to the accusations
    and lead his case with the evidence and witnesses from his end.
  • Maintaining Confidentiality
    of the Parties: –
    In order to prevent any embarrassment or witch-hunting of the parties to
    the complaint including the accused, the POSH Act, prohibits any publication or
    making known the contents of the complaint and inquiry proceedings sub-judice
    with the ICC. Section 16 and 17 of the POSH Act, clearly prohibits
    dissemination of any information related to the conducting of the inquiry into
    the complaint which also includes conciliation proceedings and recommendations
    provided by the ICC. 
  • Penal Provisions for Breach
    of Confidentiality
    : – In the event, anyone is found to be in breach of confidentiality provisions,
    the Act specifies for strict actions to be taken as per the service rules of
    the organisation along with a penalty of Rs. 5,000/- (Indian Rupees Five
    Thousand) to be recovered by the employer from such person.
  • Applicability of Service
    Rules: –
    Applicability of the service rules to the POSH Act in terms of
    penalising the complainant on filing of the false complaint clearly shows that
    it is treated as mis-conduct under the service rules applicable to the
    employees of the organisation. This generates a significant deterrent in the filing
    of false complaints, as the penalty could be in the form of suspension, demotion
    and even termination of employment.
  1. Provisions of Appeal: – One of the significant mechanisms to prevent abuse
    of the process of law is the appeal provision enunciated in Section 18 of the
    POSH Act. The respondent has the ‘right to appeal’ under section 18 of the POSH
    Act read with applicable service rules in case the respondent is not satisfied
    with the recommendations/findings arrived at in the complaint by the ICC. The
    appeal can be preferred within a period of ninety days from the date of

the way:

The Courts in India have also started taking stern
actions on false complaints filed under the POSH Act, which is a welcome move
and will pave the way for the balanced approach to be taken towards the
incidents of sexual harassment at the workplace. Recently, the Delhi High Court
in the matter of Anita Suresh vs Union of
India & Others[1],
dismissed the petition
for its ‘lack of merit’ and ordered the costs of Rs. 50,000/- on the petitioner
for filing a false complaint and misusing the provisions of the POSH Act. The
single judge bench comprising of Justice J.R Midha also granted liberty to the respondent-ESI
Corporation to initiate appropriate action against the petitioner for the


Anita Suresh’s judgement has the potential to what can
possibly be a watershed moment in rethinking the provisions of the POSH Act
from a different perspective. This decision also gives us a revelation as to
how provisions of the POSH Act can also be misused for settling personal
vendetta. The Court has rightly come to the aid of the Respondent who otherwise
would have fallen victim to shaming and the surrounding social stigma that
could have been fatal to both his personal and professional life. 

Need of the hour
is that though we should be sensitive towards the cause but at the same time
should not get blinded by pre-conceived notions like ‘men are always wrong;
women can never lie.’ The wronged woman must get justice but at the same time a
man should not be wronged as well. The principles of socialism and social
justice should not be pushed to extremities so as to become a weapon in the
hands of few to be misused for ulterior motives. The right balance must be
struck. The workplace environment should be such that the harassment matters do
not go unreported and at the same time men should not be made to undergo
torture and humiliation on account of false complaint.

Let’s not crush
the principle of “innocent until proven
” in our quest for “Justice”.

[1] W.P
(C) 5114/2015

Contributed By – Smita Paliwal, Partner
Richa K Gaurav, Associate

King Stubb & Kasiva,
Advocates & Attorneys

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