Prevention of Workplace Sexual Harassment Act

“Creating a workplace free from sexual harassment isn’t just about compliance with the law; it’s about fostering a culture of respect, dignity, and equality where every employee can thrive.”

The Prevention of Workplace Sexual Harassment Act (“PoSH”) and the Prevention of Workplace Sexual Harassment Rules have been enacted 16 years after the Supreme Court of India’s landmark judgement in Vishaka and others v. State of Rajasthan(1997) (“Vishaka Judgement”). The Supreme Court, in the Vishaka Judgment, laid down guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and enforce the right to gender equality of working women (“Guidelines”). The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Prevention of Workplace Sexual Harassment Act”) was made effective from December 09, 2013 by the Ministry of Women and Child Development, India. The Government has also notified rules under the Prevention of Workplace Sexual Harassment Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Prevention of Workplace Sexual Harassment Rules”)

PoSH refers to a set of laws, regulations, and policies aimed at preventing and addressing incidents of sexual harassment in the workplace. It aims to create a safe and respectful working environment for all employee by mandating stringent measures against sexual harassment. The Act defines sexual harassment broadly, covering unwelcome acts or behaviour of a sexual nature that create a hostile or intimidating work environment.

The Act outlays the Employer’s Responsibilities to formulate and implement a policy against sexual harassment at the workplace; Establish an ICC at each office or branch with more than ten employees to receive and redress complaints; The ICC is responsible for conducting inquiries into complaints, ensuring confidentiality, and recommending actions against offenders; Mandatory display of the policy against sexual harassment; Conducting regular awareness programs and workshops on sexual harassment prevention; Submission of an annual report to the district officer on the number of complaints received and their disposal.

The Act comprises of Employee Obligations to adhere to the policies and guidelines set forth by the employer regarding sexual harassment; They should report incidents of sexual harassment promptly to the ICC or the designated authority; If an employee files a complaint or is involved as a witness in a sexual harassment investigation, they are obligated to cooperate fully with the ICC or any investigating authority.

The Prevention of Workplace Sexual Harassment Rules supplement the POSH Act with detailed procedures and guidelines for effective implementation. Key provisions include the Composition, tenure, and functions of the ICC; Duties of the Presiding Officer and other members; Mechanisms for resolving complaints within a specified timeframe. To ensure confidentiality of complaints and protection against victimization or retaliation for reporting incidents of sexual harassment; Prohibition of false or malicious complaints and penalties for the same. To ensure compliance with the POSH Act and Rules, organizations should; Develop and implement a comprehensive sexual harassment policy; Establish an ICC and ensure its effective functioning; Conduct periodic training sessions on sexual harassment awareness and prevention; Maintain records of complaints, inquiries, and actions taken.

One of the most prevalent misconceptions about PoSH regulations is the belief that they primarily focus on safeguarding women in the workplace. However, it’s crucial to clarify that these regulations are fundamentally gender-neutral and are designed to ensure a safe and respectful environment for all employees, regardless of gender.

The POSH Act underwent significant amendments in 2020 to strengthen the existing legal framework. These amendments expanded the definition of “aggrieved woman” to include transgender persons and introduced provisions for online sexual harassment.

The evolution of sexual harassment laws in India reflects a multifaceted journey marked by legislative milestones, judicial interpretations, and societal transformations. From the foundational Vishaka Guidelines recognizing sexual harassment as a violation of fundamental rights to the enactment of the Sexual Harassment of Women at Workplace Act in 2013 and its subsequent amendments in 2020, India’s legal framework has progressively addressed various forms of harassment.

However, despite these advancements, challenges persist in implementation and inclusivity. The complexity of workplace dynamics, cultural perceptions, and intersectional vulnerabilities demands continual vigilance and adaptability in legal provisions. The widened scope of the 2020 amendments to encompass transgender individuals, remote workspaces, and online harassment signifies a crucial step towards inclusivity and adaptability in the face of evolving societal landscapes. The jurisprudence surrounding sexual harassment, illustrated by landmark cases like Vishaka, Apparel Export Promotion Council, and Bhanwari Devi, has not only interpreted laws but also set precedence for a proactive approach in addressing and preventing harassment. These cases underline the significance of employer accountability, the broad definition of the workplace, and the need for cultural sensitivity in addressing harassment issues.

At the most recent times, The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Amendment Bill, 2022 (“Amendment Bill 2022”) was introduced in the Rajya Sabha on December 8, 2023. Subsequently, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Amendment Act, 2024 (“Amendment Bill 2024”) was introduced in the Rajya Sabha on February 2, 2024. Both the bills seek to rectify certain lacunae in the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“POSH Act”), which was highlighted previously by the J.S Verma Committee in its Report on the Amendments to Criminal Law dated January 23, 2013 (“Report”)

Compliance with the Prevention of Workplace Sexual Harassment Act and Rules is crucial for fostering a safe and inclusive workplace environment. Organizations must uphold the principles of dignity, respect, and equality to create a conducive working atmosphere for all employees. Non-compliance with the POSH Act can result in penalties, including fines, and damage to the organization’s reputation. The provisions of this Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, strict adherence to the Act and Rules is not only a legal obligation but also essential for ethical business practices.

In conclusion, while India’s legal framework has made strides in addressing sexual harassment, a concerted effort involving comprehensive implementation, heightened awareness, and continuous reforms is imperative. An inclusive, robust legal framework coupled with proactive measures in workplaces and society at large is pivotal to fostering a culture of respect, equality, and dignity, ensuring a safer and more equitable environment for all individuals, irrespective of gender or social status.