An important turning point in the ongoing fight for ‘gender equality’ was marked in 2013 when the Government of India passed the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”), which aimed to safeguard and advance women’s safety in the workplace. On December 9, 2024, it was eleven (11) years since the “POSH Act” has been in effect. This historic law was put into place to give victims of sexual harassment a strong and efficient redressal system, along with associated matters.
In a 1997 public interest litigation, the Hon’ble Supreme Court established the ‘Vishaka Guidelines’, which served as the foundation for the POSH Act. In deciding cases involving sexual harassment at work, the Indian judiciary has established a number of precedents that help employers enforce the requirements of the POSH Act, both in law and spirit. Along with violating one’s dignity and respect, sexual harassment also leads to a violation of fundamental rights protected by the Indian Constitution.
Any individual in charge of managing, overseeing, and controlling the workplace is considered a “employer” under Section 2 of the POSH Act. Furthermore, in order to give effect to the POSH Act’s provisions and to avoid legal fines, the Employer must comply with specific responsibilities imposed by Chapter VI, Section 19 of the POSH Act. Numerous Indian business houses have implemented strong best practices to make sure they go above and above the legal obligations to stop, address, and lessen instances of sexual harassment at work.
There is still a large vacuum in publicly available data that compiles information from employers and businesses, despite the POSH Act having been in place for more than eleven (11) years. Finding industry-wide trends and patterns in the reporting and settlement of sexual harassment complaints is difficult since the available data is still dispersed throughout individual business reports.
The number of cases recorded under the POSH Act in India has significantly increased over the course of these eleven (11) years, as is widely acknowledged. This indicates a rise in knowledge and a willingness to report instances, but it also emphasizes how commonplace workplace sexual harassment is.
However, the resolution rate has not grown in tandem with the rise in complaints. This disparity suggests that there may be inefficiencies and delays in the processes used to handle sexual harassment allegations, which could result in a backlog of unresolved cases and could be caused by the following factors:
- Withdrawals: For personal or professional reasons, people may decide to drop their concerns in certain situations. This could be because of worries about societal shame and punishment, lack of proof to back up the claim, fear of victimization or retribution, or outside pressures.
- Leaving Out: The fact that the accused or the complainant left the organization before the case was settled is another important consideration. The investigation process is frequently complicated when one of the parties involved leaves the organization before the inquiry is finished, and in these situations, the case may go unsolved, adding to the backlog.
- Ineffective Redressal: Ineffective grievance redressal mechanisms and a weak complaints committee frequently make it difficult for organizations to effectively handle sexual harassment-related issues, which increases the disparity between reported and resolved cases.
- Culture: There may be a large discrepancy between reported and resolved cases in organizations with a hostile work culture or underperforming leadership. In other words, a culture that does not value resolving grievances or discourages reporting may be a factor in the higher rates of unsolved cases.
Recently in case of “Aureliano Fernandes”[1] the Hon’ble Supreme Court noted precisely that while India had made impressive strides in implementing the POSH Act, there were still some ambiguities that needed to be resolved, making it questionable whether it’s true intent had been achieved.
Workplace Dilemma: Despite the POSH Act’s broad definition of a “workplace,” business houses nonetheless encounter a number of difficulties in guaranteeing that sexual harassment allegations in the workplace are handled effectively because of legal ambiguity. Nowadays, the term “workplace” in the context of an office is widely used to refer to the boundaries of a physical location or building, the locations that employees visit while on the job, interactions on digital and online platforms, events that are planned by employers and/or their clients, and employer-provided transportation.
Although a sports complex is considered a “workplace” for sports-related activities, there is no legal provision to address complaints about sexual harassment that allegedly took place in common areas, at the entrances and exits of large office complexes, business hubs, corporate campuses, or co-working spaces, as well as the rights and responsibilities of the accused, the accused’s internal committees, and the security agency responsible for these complexes, hubs, and campuses.
Anonymous Complaints: Regarding how anonymous sexual harassment allegations are handled, the POSH Act is silent. Employers are neither required nor permitted by the POSH Act to address anonymous complaints or take suo motu cognizance of unreported instances of sexual harassment at work that they become aware of. As a result, although some business houses handle these kinds of situations as code of conduct issues and take the appropriate steps to guarantee worker safety, others do not pay attention to such concerns until they receive a formal written complaint in accordance with the POSH Act.
Timeframe: Under the POSH Act, there is no defined timeframe for carrying out a conciliation or putting the settlement—if any—that was reached through conciliation into effect. Therefore, it is necessary to clarify the appropriate time frame between the date on which the accused submits a written response to a sexual harassment allegation and the start of an investigation.
Monetary Settlements: Monetary settlements to reach conciliation are not covered by the POSH Act, which ignores the crucial need for checks that stop dishonest employers from abusing the conciliation provisions to avoid an investigation and instead pressure a victim to choose conciliation that resolves the matter in a private manner. Furthermore, an order of settlement reached through conciliation cannot be challenged by the parties involved.
No Distinguishing Mechanism: Unwanted and uninvited sexual harassment is not distinguished from healthy sexual desire under the POSH Act. Ignoring this disregards the definition of an intra-office consensual connection between coworkers and the potential for claims of sexual harassment in the workplace to result from such freely consenting intimate connections.
To accomplish the POSH Act’s objectives—to create a safe, secure, egalitarian, and enabling work environment for women—lawmakers must promptly correct the inadequacies in the current legislation, and business houses must focus on several crucial areas, including enhancing reporting protocols, allocating enough members, streamlining processes, and fostering a positive culture, in order to reduce the discrepancy between reported and resolved cases.
[1] In Aureliano Fernandes vs. State of Goa & Ors. – Supreme Court decided on May 12, 2023.
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