Ajay Singh Solanki
AZB & Partners, Mumbai
ajay.solanki@azbpartners.com

Madhur Khandelwal
AZB & Partners, Mumbai
madhur.khandelwal@azbpartners.com

It has been almost ten years since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (‘POSH Act’) and the rules^[1] thereunder were passed in India. Since the POSH Act’s implementation, Indian courts have been interpreting the provisions and opining on some important aspects of the law. While most conscientious corporations in India have been making a genuine effort to implement the law, recent observations and directions^[2] of the Indian Supreme Court^[3] shed some light on the progress made. In this article, we follow the journey of the law across the decade, highlighting the interpretations given in some landmark court judgments up until the Supreme Court’s recent directions and consider to what extent the law’s original intent has been met thus far in practice.

Need for a dedicated law on sexual harassment in the workplace

Prior to 2013, sexual harassment was included under broader provisions on sexual offences in the Indian Penal Code (IPC) 1860, meaning there was no specific law dealing with sexual harassment in the workplace. As such, a woman subjected to sexual harassment in her workplace held a statutory right to redressal only under the IPC until the enactment of the POSH Act.

In 1997, the Indian Supreme Court examined the deep-rooted gender imbalance which manifests in the form of violence against women, including sexual harassment in the workplace. The Court observed that such acts are a violation of fundamental rights enshrined under the Constitution of India and accordingly issued directions to the government to enact appropriate legislation.

The Court also formulated guidelines and norms (known as ‘Vishaka Guidelines’) to prevent sexual harassment in the workplace.^[4] It was emphasised that the Vishaka Guidelines would be treated as the guiding principles until suitable legislation was enacted by the legislature to address the issue. However, it was observed by the Supreme Court that several states failed to properly implement the Vishaka Guidelines and thus directed state governments to furnish details as to what steps had been taken towards their implementation.^[5]

Enactment of the POSH Act

It took a further 16 years for the POSH Act to come into effect in 2013. The POSH Act places an obligation on employers to provide a safe and secure working environment for women. It codifies a formal redressal mechanism for women subjected to sexual harassment and comprehensively incorporates the Vishaka Guidelines, while also providing expansive definitions of ‘aggrieved woman’ and ‘workplace’.

The POSH Act also details the requirements for the composition of a specialised internal committee to investigate, hear and address grievances of victims of sexual harassment in the workplace. It empowers the internal committee to initiate enquiries against the accused and to recommend appropriate penalties and punishments to the employer. It also places an obligation on employers to provide training and raise awareness among their workforce regarding the prevention of sexual harassment in the workplace.

However, similar to the Vishaka Guidelines’ implementation, the Supreme Court has recently noted some serious lapses in the implementation of the POSH Act. In the following section, we discuss the interpretation of POSH Act provisions by the Indian courts and the practical difficulties faced a decade after the enactment of the law.

Key developments

Since the implementation of the POSH Act in 2013, the Supreme Court and high courts in various states have pronounced important judgments dealing with the nuances around sexual harassment in the workplace, helping to develop jurisprudence on the POSH Act.

‘Workplace’ and extension thereof

Recently, the Rajasthan High Court^[6] held that in today’s digital era, a female employee being sexually harassed by an employee of a branch office located in another state would also fall under the purview of the POSH Act and such branch offices should be treated as one workplace on a digital platform. Accordingly, if a female employee is being harassed digitally by an employee based out of an office situated in another state, the aggrieved woman has the option to register a complaint of sexual harassment against the concerned employee as per the provisions of the POSH Act.

In another case, the Bombay High Court^[7] emphasised that the definition of ‘workplace' is inclusive and deliberately broad to cover any scenario where a woman may be subjected to sexual harassment. Various High Courts have considered the definition ‘workplace’ and have opined on similar lines that the term is not just restricted to the physical offices of the employer, but also includes the offices of a contractor, cyberspaces, transportation, outstation visits for work^[8] and so on.

Sexual harassment

The Kerala High Court^[9] held that in order for the act of harassment to be covered under the POSH Act, it should necessarily have a sexual undertone. The Bombay High Court^[10] has emphasised that ‘sexual harassment’ includes behaviour that creates an intimidating or hostile environment for the woman and leads to humiliating treatment likely to affect her health and safety.  

Adherence to the principles of natural justice

The Delhi High Court^[11] has asserted the importance of adherence to the principles of natural justice in enquiries conducted by the internal committee. It reiterated that the right to cross-examination must be provided to both the parties and the internal committee should strictly adhere to this.

Allegations of bias against an internal committee member

The Supreme Court^[12] observed that the absence of an independent member is a fundamental defect in the constitution of any internal committee. The Court further opined that an independent member on the internal committee reduces the possibility of institutional bias. The Delhi High Court^[13] held that if there is an allegation of bias against any member of the internal committee, the inquiry proceedings should be stayed and the disciplinary authority should enquire into the allegations. If the allegations are substantiated, the enquiry should be conducted from the beginning with a newly constituted internal committee.

Maintaining confidentiality in court hearings

In a Bombay High Court^[14] judgment recognising the need to ensure the confidentiality of hearings pertaining to matters of sexual harassment of women in the workplace, the court laid down guidelines on the manner in which decisions in such cases should be recorded and pronounced by the courts, as well as steps that should be followed while reporting such matters to the media.

Recent Supreme Court directions

In a landmark judgment in May 2023, the Supreme Court^[15] noted serious lapses and uncertainty in the enforcement of the POSH Act by the internal committee of the concerned employer. The Court observed that the internal committee constituted by the employer conducted hearings at lightning speed and denied the appellant a reasonable opportunity and time to prepare his defence. It held that the internal committee had erred in short-circuiting the process and, as a result, had vitiated procedural fairness.

While noting that there are serious lapses in the implementation of the POSH Act, the Supreme Court issued directions to governments and employers which inter alia included directions around conducting regular workshops and seminars, etc to educate women on the sexual harassment law and to improve the skills of the members of internal and local committees.

Practical challenges and the way forward

The POSH Act has played a crucial role in raising awareness and promoting gender equality by empowering women to raise their voices against sexual harassment without fear of retaliation or judgement. Year upon year, news reports^[16] suggest that sexual harassment complaints are spiking in Indian companies, which, though concerning, also indicates an increased awareness and availability of appropriate fora for women to report such incidents.

A recurring critique of the POSH Act is that it is silent about providing protection to members of the workforce other than women who may fall prey to workplace sexual harassment. While it is unfortunately true that women have been historically disadvantaged due to male-dominated workplaces, it is important to acknowledge that gender and sexuality are more fluid today. Men and members of the LGBTQIA+ communities also require legal protection from workplace sexual harassment to ensure a safe working environment for all irrespective of gender. 

In addition, despite the availability of legal recourse under the POSH Act, many incidents of sexual harassment still go unreported either due to a lack of awareness or inefficient execution of the complaints mechanism. Where incidents are reported, there appears to be a lack of confidence in the process and its outcome. These issues need to be rectified through robust, efficient and effective implementation of the mechanism provided under the POSH Act. Monitoring effective implementation is critical to understanding the grey areas that may require further introspection by employers.

Taking a cue from the recent Supreme Court directions, employers should prioritise compliance with the POSH Act, not just to pay lip-service but to fulfil the intent of the law – which is to keep the workplace safe and secure. This will go a long way to building employee confidence in the complaints redressal process and also in mitigating any reputational risks that may arise for employers due to ineffective implementation of the law.