FIRs in Workplace Sexual Harassment Cases

In 2024, Parliament replaced the offence-specific provisions on sexual harassment and outraging a woman’s modesty under the Indian Penal Code with a consolidated framework under the Bharatiya Nyaya Sanhita, 2023, reaffirming that such conduct remains a criminal, cognizable wrong and not merely a workplace disciplinary matter. Yet in practice, the overwhelming majority of workplace sexual harassment complaints in India never result in a First Information Report. Since 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act has channelled complaints into Internal Committees empowered to award compensation, transfer, or terminate an employee, but with no independent power to prosecute. Section 19(h) of the Act obliges the employer to assist the aggrieved woman if she wishes to file a complaint under criminal law, and the Act does not bar parallel criminal proceedings. This article argues that, despite this statutory allowance, institutional practice has converted the Internal Committee into a terminal forum rather than a gateway to criminal accountability, undermining both deterrence and the complainant’s right to access the criminal justice system. It first outlines the parallel legal tracks created by the POSH Act and the Bharatiya Nyaya Sanhita, then examines why FIR registration is displaced in practice, before proposing a concrete procedural reform.

I. Two Parallel Tracks: Internal Redress and Criminal Law

The POSH Act was enacted to give statutory force to the Supreme Court’s guidelines in Vishaka v. State of Rajasthan, which had recognised workplace sexual harassment as a violation of the constitutional guarantees of equality and the right to life and dignity under Articles 14, 15, 19(1)(g) and 21. The Act requires every establishment with ten or more employees to constitute an Internal Committee, which must complete its inquiry within ninety days and may recommend disciplinary action or monetary compensation under Sections 13 and 15. Critically, the Act does not treat this internal mechanism as a substitute for criminal law. Section 19(h) casts an affirmative duty on the employer to assist the woman if she chooses to file a complaint under the applicable penal law, which, for offences of sexual harassment and related conduct, is now consolidated under Section 75 and adjoining provisions of the Bharatiya Nyaya Sanhita, 2023. On a plain reading of the statutory scheme, the internal and criminal routes are meant to run independently, so that an Internal Committee’s finding neither displaces nor delays the woman’s right to approach the police.

II. Why FIR Registration Is Displaced in Practice

Despite this design, several structural features of the POSH framework operate, in combination, to keep complaints within the internal process and away from police stations. First, the Act’s confidentiality provisions under Section 16, intended to protect the complainant from social and professional retaliation, are frequently read by employers and, at times, by the complainants themselves as a general bar on disclosure, discouraging any parallel step that would make the matter public through a criminal filing. Second, employers have an institutional incentive to resolve complaints internally: a completed Internal Committee inquiry, followed by disciplinary action, allows the organisation to demonstrate compliance with the Act while avoiding the reputational exposure of a criminal case. Employers rarely volunteer the Section 19(h) assistance the Act requires, and complainants, particularly where the harasser is a superior, often lack the resources or confidence to pursue the criminal route unaided.

Third, and most significantly, police stations frequently treat a workplace sexual harassment complaint as an internal human resources matter falling outside their immediate remit, sometimes informally directing complainants to first obtain an Internal Committee finding before registering a complaint. This practice sits uneasily with the Supreme Court’s ruling in Lalita Kumari v. Government of Uttar Pradesh, which held that registration of a First Information Report is mandatory for a cognizable offence disclosed by the information received, without any preliminary inquiry being a precondition in ordinary circumstances. A workplace sexual harassment allegation that discloses a cognizable offence under the Bharatiya Nyaya Sanhita ought, on this reasoning, to be registered irrespective of whether an Internal Committee has concluded its own inquiry. In practice, however, the existence of a specialised internal forum appears to function as an informal justification for police discretion that Lalita Kumari was intended to eliminate.

The Supreme Court’s own intervention in Aureliano Fernandes v. State of Goa illustrates the consequences of treating the Internal Committee as the sole and sufficient forum. The Court found that Internal Committees across the country routinely departed from principles of natural justice and functioned with limited institutional rigour, and it directed a nationwide verification exercise to ensure their proper constitution and functioning. If the body on which complainants are, in practice, made to rely as their only avenue of redress is itself unevenly constituted and inconsistently trained, foreclosing the criminal route compounds rather than mitigates the harm to the complainant.

III. The Cost of the Gap and a Proposed Reform

The practical effect of this displacement is that an offender may face, at most, a warning, transfer, or termination, without ever being subjected to the deterrent and punitive consequences that the legislature attached to sexual harassment as a criminal offence. For repeat offenders who move between employers, an internal sanction leaves no criminal record and no public deterrent. For the complainant, the absence of a documented criminal option denies her a remedy the statute itself contemplates, and it is not open to the Internal Committee, the employer, or the police to treat the two tracks as mutually exclusive. This is not a case requiring new legislative rights; Section 19(h) already exists. What is missing is an enforceable procedural mechanism that converts the provision from an unmonitored obligation into a documented step in every inquiry.

This article submits that the POSH Rules should be amended to require every Internal Committee to record, in writing and as a mandatory part of its inquiry file, whether the complainant was informed of her right under Section 19(h) and whether she elected to pursue a parallel criminal complaint. This written acknowledgment should be independent of, and unaffected by, the outcome or timeline of the internal inquiry. Correspondingly, State police authorities should issue standing circulars reiterating that the mandatory registration duty under Lalita Kumari applies to workplace sexual harassment complaints on the same footing as any other cognizable offence, regardless of whether an Internal Committee proceeding is pending or concluded. Such a reform would not alter the substantive law; it would simply ensure that the parallel track Parliament already created is not quietly closed off at the level of institutional practice.

IV. Conclusion

The POSH Act and the Bharatiya Nyaya Sanhita were designed to operate as complementary, not competing, remedies for workplace sexual harassment. Yet confidentiality norms, employer incentives to resolve matters internally, and police reluctance to register complaints alongside a pending Internal Committee inquiry have, in practice, converted the internal mechanism into a terminal forum. This displaces both the deterrent function of criminal law and the complainant’s statutory right to access it. The remedy proposed here is procedural rather than legislative: mandatory documentation of Section 19(h) compliance within every Internal Committee inquiry, paired with police guidance affirming that the Lalita Kumari registration duty is unaffected by a parallel internal process. Such a change would close the gap between the rights the POSH Act already confers and the criminal accountability it was never meant to exclude.

Reference(S):

• Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14 of 2013 (India).

• Bharatiya Nyaya Sanhita, No. 45 of 2023, § 75 (India).

• Vishaka v. State of Rajasthan, (1997) 6 S.C.C. 241 (India).

• Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 S.C.C. 1 (India).

• Aureliano Fernandes v. State of Goa, Civil Appeal No. 2482 of 2014, Judgment of 12 May 2023 (Supreme Court of India).