India: SC Issues Directives To Review The Implementation Of The POSH Act 2013

A decade after its implementation, the Hon'ble Supreme Court of India ("SC") in a recent judgement of May 12, 2023 noted that there are serious lapses in the enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("PoSH Act"). Given the long passage of time since its implementation, the SC noted that this reflects "a sorry state of affairs" and reflects "poorly" on all the State functionaries, public authorities, private undertakings, organisations and institutions that are duty bound to implement the PoSH Act in letter and spirit.

While many organisations may have formed an internal PoSH Committee to redress grievances of sexual harassment at the workplace, in most cases they fail to follow the due process. Many a times these committees merely skim through the procedure in haste for the sake of meeting a hurried end. Thereby improperly exercising the discretion vested in such committees and defying the principles of natural justice of giving a reasonable opportunity for a fair hearing to the parties involved.

The SC noted that that it is often seen that when someone faces sexual harassment at the workplace, they are reluctant to report the misconduct and one of the reasons for this reluctance to report is that there is uncertainty about whom to approach for redressal of grievances. Another reason is lack of confidence in the process and outcome. And, the only way to ameliorate this is by robust and efficient implementation of the PoSH Act. Therefore, it is imperative to educate the complainant victim:

• about the import and working of the PoSH Act;
• of how a complaint can be registered;
• the procedure that would be adopted to process the complaint;
• the objective manner in which the committee is expected to function under the PoSH Act;
• the nature of consequences that the delinquent employee can be visited with if the complaint is found to be true;
• the results of lodging a false or malicious complaint; and
• the remedies available if the complainant is dissatisfied with the report of the committee.

The SC emphasised on the need for due process to be followed and issued the following directions:

Key directions issued by the SC:

• The appropriate Governments must undertake a time-bound to verify whether all organizations have constituted Internal Complaints Committees ("ICCs"), Local Committees ("LCs"), or Internal Committees ("ICs") in compliance with the PoSH Act.
• The concerned organizations must ensure that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, contact details of the designated person(s), the procedure for submitting a complaint, as well as relevant rules, regulations, and internal policies are readily available on their website.
• Authorities/managements/employers must take immediate and effective steps to familiarize members of the ICCs/LCs/ICs with their duties and the proper manner in which an inquiry ought to be conducted upon receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is concluded and the report submitted.
• Authorities/managements/employers must regularly conduct orientation programmes, workshops, seminars, and awareness programs to upskill members of the ICCs/LCs/ICs and to educate women employees and women's groups about the provisions of the Act, the Rules, and relevant regulations.
• Appropriate Governments have eight (8) weeks to comply with these directions and inform the SC about their compliance through an affidavit.

Things to consider

• It is important to note that strict compliance with the provisions of the PoSH Act is a legal requirement and non-compliance has penal consequences. Subsequent conviction could also lead to cancellation of licenses required to carry on business.
• Some states like Haryana are proactively conducting an exercise to identify compliance with the PoSH Act. The district officer of Gurugram issued a compliance checklist in December 2022, which required additional information from organisations under its jurisdiction, requiring them to respond to a detailed questionnaire about compliance with the PoSH Act, which includes mandatory requirements and pro-active steps taken by organizations to ensure compliance with the Act. Other states may undertake a similar exercise in the coming weeks so that the mandate of the SC is complied with.
• We strongly recommend that organizations verify if they are complying with all the requirements under the PoSH Act. In case there are gaps, immediate steps should be taken to fulfil the lacunae.