POSH Act, 2013: Protection in Practice or Compliance on Paper?

Introduction

Women’s participation in employment in India has been rising remarkably in recent years. At the same time, harassment and abuse targeting women in workplaces continue to raise serious concerns regarding their safety, dignity, and equality at the workplace.

In order to address these concerns, the Supreme Court in Vishaka v. State of Rajasthan laid down several guidelines, which later became the foundation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, more commonly called as the POSH Act. The Act imposes an obligation on every workplace to create an internal committee to inquire into complaints of sexual harassment and adopt preventive measures to ensure a safe working environment for women employees. The act has made a robust framework for the protection of women; however, its real-world effectiveness remains a concern, as many workplaces treat compliance as a matter of paperwork rather than genuine protection. This article argues that poor implementation has weakened the effectiveness of the Act. It examines the legal framework, the practical hurdles in effective implementation and reforms needed to strengthen the Act.

Legislative evolution and key provisions under the POSH Act,2013

Before the introduction of the 2013 Act, in India, there was no legislative framework for the protection of women against workplace sexual harassment except sections 354 (Outraging the modesty of a woman) and 509 (Insulting the modesty of a woman) of the Indian Penal Code,1860, but these sections proved insufficient in most situations, and the need for reform was critical [1]. Later, in Vishaka v. State of Rajasthan, the Supreme Court formulated certain guidelines for addressing sexual harassment against women in workplaces. The case arose from the gang rape of a woman named Bhanwari Devi while she was employed as a social worker under the Rural Development Programme of the government of Rajasthan. This issue highlighted the abuse and harassment faced by women and the lack of adequate legal protection. Since there was no statutory enactment addressing women’s safety in workplaces, the Supreme Court issued the Vishaka guidelines directing all employers and workplaces to prevent and address sexual harassment.[2]

As these guidelines were a temporary judicial framework, a clear law addressing the protection of women in the workplace was needed. Subsequently, on 22nd April 2013, the POSH Act was enacted and came into force on December 9th,2013 establishing a robust framework for the protection of women in the workplace and for addressing and penalising sexual harassment. [3]

Key Provisions of the POSH Act

1. Objective – This Act aims to protect women against sexual harassment at the workplace and to provide for its prevention, redressal, and matters in relation thereto.
2. Scope – This Act applies to the whole of India. The act has a wider scope and is not only for women employed in a workplace but also includes any woman who is not employed but present in connection with a workplace, and women working in the household. Similarly, the act includes government and private organisations and other work-related places such as hospitals, sports facilities, travel, and households.
3. Sexual harassment – Under this Act, sexual harassment refers to any unwelcome acts or behaviour, whether directly or indirectly, such as physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing pornography against a person’s will or any other unwelcome conduct of a sexual nature.
4. Internal Committee – Under the Act, every organisation must constitute an Internal Committee consisting of at least 4 members, a presiding officer, at least 2 employees and an external member,half of the members must be women. Members can hold their office for up to 3 years and may be removed if they violate any provision, misuse their position or are found guilty in disciplinary proceedings.
5. Local Committee – under section 6 of the Act, every district officer must constitute a Local Committee in every district to inquire about complaints regarding harassment in the organisation where there is no Internal Committee or complaint against the employer. The committee consist of 5 members including the chairperson who will be a woman.
6. Complaint – Section 9 of the Act deals with the complaint mechanism where a woman who has suffered any harassment can file a complaint at the Internal Committee or Local Committee, and the complaint must be filed within 3 months after the incident and may be extended by another 3 months for sufficient cause. If she is unable to do so due to incapacity or death, a representative may file on her behalf. The inquiry must be completed within 90 days.
7. Penalty for non-compliance – The Act imposes a penalty on employers for non-compliance, such as failure to constitute an Internal Committee, failure to take action or violation of any provision. Repeated offence may face a double penalty than earlier.[4]

Implementation challenges

Even though the POSH Act appears to be theoretically successful, several concerns remain about its effectiveness in practice. This section discusses the hurdles to its effective implementation.

1. Under the Act, every workplace must have an internal committee (IC) to investigate complaints received and have similar power to a civil court during an inquiry. The majority of members in the committee are regular employees who are inexperienced in handling such complaints, ensuring fairness and taking the procedures smoothly. As a result many inquiry reports have been challenged in the High Court through writ petition under Article 226 of the Constitution, which have been set aside by the court for violating natural justice. This concern is evident from Aureliano Fernandes v. State of Goa & Ors., where the Supreme Court criticised the poor implementation of the POSH Act and deficiencies in the functioning of Internal Committees.[5]
2. Complaints against powerful members such as the CEO, CFO, directors etc. In such a situation, IC members may hesitate to take action against them because of the fear of losing their jobs, which makes the committee weaker.
3. The Act requires strict confidentiality; the details of the complaint and inquiries should not be shared. But in practice, the information often leaks through office gossip and media reports.
4. In today’s era, electronic devices play an important role, such as WhatsApp chats, emails, social media messages etc. A major challenge is that the act does not clearly prescribe how the Internal Committee (IC) should receive, examine and rely upon electronic evidence during an inquiry.[6]

Conclusion

The POSH Act has been a significant legislative step taken for the protection of women against sexual harassment in the workplace. The Act has created comprehensive provisions to ensure the safety of women in the workplace, including a clear mechanism for the prevention and redressal of sexual harassment through an Internal Committee (IC), employer obligations, and protection of complainants. Even though the act has strengthened the protection and safety of women in the workplace more than ever before, Several challenges regarding its effective implementation remain, such as a lack of training among internal committee members, breaches of confidentiality, and bias in inquiries against top management, which can make the redressal and prevention weak. Therefore, taking reforms for strengthening its effectiveness are needed. Mandatory training for internal committee members, appointment of at least one legally qualified member, and clearer procedural guidelines for handling data evidence would significantly improve its efficiency, and with such reforms, the Act can fulfill its objectives more effectively, creating a safer workplace.

Reference(S):

Primary sources

Cases

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

Aureliano Fernandes v. State of Goa, (2024) 1 S.C.C. 632 (India).

Legislation

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (India).

Secondary sources

Internet sources

Malavika Rajkumar, The History Behind Sexual Harassment at the Workplace Law, Nyaaya Guest Blog (Mar. 9, 2022), https://nyaaya.org/guest-blog/the-history-behind-sexual-harassment-at-the-workplace-law/.

Bharat Vasani, Varun Kannan & Vanya Agarwal, POSH Act – Implementational Challenges, India Corporate Law (Dec. 15, 2022), https://corporate.cyrilamarchandblogs.com/2022/12/posh-act-implementational-challenges/.

Shwetabh Sinha, POSH Act and Its Challenges, Lawyered (May 30, 2023), https://www.lawyered.in/legal-disrupt/articles/posh-act-and-its-challenges/.

[1] Malavika Rajkumar, The History Behind Sexual Harassment at the Workplace Law, Nyaaya Guest Blog (Mar. 9, 2022), https://nyaaya.org/guest-blog/the-history-behind-sexual-harassment-at-the-workplace-law/.

[2].Vishaka v. State of Rajasthan, (1997) 6 S.C.C. 241 (India).

[3] Rajkumar, supra note 1.

[4] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013(India).

[5] Aureliano Fernandes v. State of Goa, (2024) 1 S.C.C. 632 (India).

[6] Bharat Vasani, Varun Kannan & Vanya Agarwal, POSH Act – Implementational Challenges, India Corporate Law (Dec. 15, 2022), https://corporate.cyrilamarchandblogs.com/2022/12/posh-act-implementational-challenges/; Shwetabh Sinha, POSH Act and Its Challenges, Lawyered (May 30, 2023), https://www.lawyered.in/legal-disrupt/articles/posh-act-and-its-challenges/.