In a recent ruling in the case of Aureliano Fernandes vs. State of Goa and Others, the Supreme Court of India noted that despite a decade passing since the formulation of laws to prevent sexual harassment, their implementation and enforcement remain inadequate. The primary reasons cited include a lack of procedural awareness, a lack of confidence in the process and outcomes, and a failure to strictly adhere to the enforcement regime, among other practical challenges. The Court emphasized that while the enactment of such laws is commendable, they cannot ensure the dignity and respect women deserve in the workplace without strict enforcement and a proactive approach from both governmental and non-governmental entities. Although the directives issued by the Court primarily target government departments and authorities, it is imperative for companies to prioritize and review their compliance with the Prevention of Sexual Harassment (POSH) Act.
Merely a year ago, the Supreme Court (SC) made a significant ruling, acknowledging and expressing concern over what it termed as a ‘ sorry state of affairs ‘ regarding the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (POSH Act). Noting ‘serious deficiencies’ and ‘ambiguity’ in the enforcement of the POSH Act, the SC issued directives aimed at addressing the issue. These directives included instructions for conducting regular orientation programs, workshops, seminars, and awareness sessions to enhance the skills of members of the Internal Committee (IC) and to educate employees about the provisions of the POSH law. The SC referenced a newspaper report which revealed that ‘out of 30 national sports federations in the country, only 16 had formed ICs, as required by the POSH Act’, and where ICs were established, they either had insufficient members or lacked a mandatory external member. This highlighted a lack of progress measurement and a perception gap between statements and actions, with companies sometimes seen as merely paying lip service to issues of sexual harassment.
While certain provisions of the POSH Act are gender-neutral (such as allowing ‘any person’ to file an appeal against the decision of the Internal Committee), the application of sexual harassment law itself is not gender-neutral. Under the POSH Act, only an ‘aggrieved woman’ (whether employed by or associated with the organization in any capacity, including as a visitor or customer) can lodge a complaint, thereby excluding men and members of the LGBTQ+ community. Additionally, the POSH Act mandates the formation of local committees by district administrations to address sexual harassment complaints from women in the informal sector and from workplaces with fewer than 10 employees. However, there is a lack of available data or information regarding the functioning and effectiveness of these local committees.
Furthermore, the POSH Act does not explicitly address several key issues, such as the mandatory presence of an external member (appointed to offer an impartial perspective), the handling of anonymous complaints of sexual harassment, whether inquiry reports must be unanimous or based on a majority decision, and provisions for appealing against orders reached through conciliation. Another area requiring clarification is the process for addressing sexual harassment complaints involving individuals from different organizations and the enforceability of Internal Committee (IC) recommendations in such cases. Additionally, while some provisions of the POSH Act offer limited protection against retaliation and victimization of complainants and witnesses, they do not establish clear and comprehensive safeguards. This is significant because, in many instances, complainants or witnesses may hesitate to come forward if they question the level of confidentiality and protection against retaliation.
Efforts to address sexual harassment face slow progress due to implementation challenges like limited awareness, reporting reluctance, and the need for better redressal, particularly for disabled employees and those in the informal sector. Although trainings and policies exist, many organizations haven’t fully integrated them, leading to ongoing concerns about behavior and reporting. Rectifying these issues requires efficient implementation and monitoring under the POSH Act, but the deeper challenge lies in achieving cultural change.
Author Bio
