Surbhi Sachdeva, Lakshita Handa, and Jwalika Balaji

Source : JSA

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (‘POSH Act’ or ‘the Act’) has now spent over a decade in practice. The central tenet of the legislation is to make the workplace safe for women in two ways: (a) by providing civil redress to the aggrieved, and (b) by preventing instances of harassment – thereby instating what we term as “brave” and “safe” spaces in relation to the workplace. However, the Act falls short on both counts. First, redressal is rendered ineffective vis-à-vis the design, ambit, and functioning of Internal Committees (“ICs”) and Local Committees (“LCs”). Accordingly, we address gaps with the legal design of the Act, namely the jurisdiction of ICs and LCs being underinclusive, along with possible alternatives in terms of the structure of a quasi-judicial body to adjudicate complaints. Next, we highlight the procedural gaps and pitfalls of the process followed by ICs and LCs to redress complaints filed under the Act. Second, prevention is frustrated as employers have no guidance on undertaking sensitisation procedures, and fail to introduce measures to make workplaces more respectful and gender-sensitive. We suggest holistic measures to make workplaces safer by recommending the process of risk audits, and through sensitisation and capacity building. In this manner, we strive to capture the relevant issues that emerge with ICs, LCs, and workplaces in achieving the principal aims of the Act.

Introduction

As recently as December 2024, the Supreme Court noted that “serious lapses” have emerged in the implementation of the POSH Act. These lapses speak to the foreground of functioning and implementation of the Act, but equally to the background of legislative design and whether the Act’s principled intentions have been upheld in its operationalisation. This article discusses these shortcomings, particularly in the realms of building “brave” and “safe” spaces through legal design, implementation, and employer-driven systemic reform.

Building Brave Spaces: Gaps in Legal Design and Implementation

1. Legal design gaps: IC/LC jurisdiction being underinclusive

In this section, we argue that the Act falters in its design by limiting the jurisdiction of the ICs and the LCs, excluding relevant classes of complainants and respondents.

• Exclusion of certain classes of complainants

Currently, the Act offers limited to no redress to three classes of complainants: domestic workers, gig workers, and remote workers.

Firstly, section 11 of the Act only allows for a domestic worker to approach an LC, who would  forward the complaint to the police. This not only limits the domestic worker’s avenues for redress through civil procedure, but also forces her to endure the financial and time costs of litigation, while dealing with law enforcement officers, who may cause secondary victimisation. From a socio-legal perspective, it bolsters the image of domestic workers as unorganised workers, with unequal entitlements in the labour rights regime.

Secondly, platform-based gig workers/customers are not included in the net of aggrieved women, as the platform itself does not qualify as an “employer” or operate a workplace. In using jargon such as “partners”, aggregator platforms mask the real nature of the dynamic between the platform and the service providers. Likewise, the platforms shirk liability both for the behaviour of their providers and their customers. This was affirmed by the Karnataka High Court recently, which observed that aggregator platforms have effective “control” and “management” of their contracting drivers.The Court held that Ola and their drivers would classify as employer and employees respectively under the Act. Thus, survivors ought to be able to access the IC set up by Ola to complain against drivers who are perpetrators. However, it is to be noted that this order was subsequently stayed by a two-judge bench of the High Court.

Thirdly, remote workers may not have access to grievance redressal under the Act, as the definition of a workplace in the Act remains a largely physical one. The emphasis on “notional” expansion of the workplace dates back to the landmark 1958 Supreme Court judgement in Saurashtra Salt Manufacturing Co. v. Bai Valu Raja. The concept of an “extended workplace” has come about only over the last few years with residence offices and some virtual workplaces being interpreted in an ad-hoc manner to fall within the purview of a workplace under the POSH Act. Nonetheless, a conclusive legal position on what comprises a digital workplace remains elusive.

• Perpetrators who are outside the net of IC/LC jurisdiction

While the Act does not provide several aggrieved women with the “sword” of civil redress, it equally “shields” certain classes of perpetrators, known as “respondents” under the Act. Most pertinently, customers of platform-based services are outside the Act’s scope as “respondents”, due to the issue mentioned above. Similarly, the IC or LC can only initiate inquiry against a respondent who “is an employee” under section 11 of the Act, which means that respondents falling outside the definition of employees cannot be subject to such inquiries. This exclusion is rooted in the underlying nexus between the employer’s liability to the aggrieved person.

However, this nexus strays too far from the original objective of the Act, which is to make the workplace itself a safer and braver space, preventing and addressing instances of sexual harassment. The tenet here is to impose civil liability on the perpetrator when they commit such actions in any workplace. So, the connection to the employer and their liability should only be an optional nexus, and not a necessary one. In this light, the Act needs to re-imagine the liability entailed for “non-employees”, including clients and customers, to ensure that they face civil penalties regardless of their employment status. In this manner, the Act stands to benefit from re-examining its ambit of both complainants and respondents, accommodating for the evolving nature of the workplace.

2. Implementation gaps in the functioning of ICs and LCs

While the setting up of ICs and LCs under the POSH Act has been envisaged as a pivotal means of operationalising its provisions, there are glaring defects and procedural lapses in their constitution and handling of complaints. In multiple cases, ICs do not have the stipulated number of members and their constitution is often not in accordance with the provisions of the Act. Improperly constituted ICs and LCs pose impediments to conducting a fair inquiry into complaints of sexual harassment at the workplace. Given the serious nature of such an allegation and the severity of consequences attached to the establishment of a charge, an ill-prepared committee lacking subject matter expertise, and relying on half-baked information runs the risk of defeating the purpose of the Act. While the Supreme Court has time and again emphasised on the need to train IC and LC members, such training is seldom provided.

Notably, for the informal sector in India, which is a major source of employment for a large part of the female population, the law largely remains inaccessible. A 2018 report found that only 29% of the 655 districts surveyed had formed LCs. In August 2018, a civil society organisation had to get court orders to force the Government to constitute Local Committees in Tamil Nadu. Another 2021 report found that only 15.9% of informal sector respondents were not aware of LCs and the majority believed that approaching the nearest police station was the only way to seek redress. This indicates that the constitution of LCs is a rampant issue and the overall lack of publicization/ awareness generation further perpetuates inaccessibility.

The chain of responsibility with respect to LCs has also not been clearly spelled out since no specific department within the Government has been entrusted with the implementation of the Act. Additionally, no specific central or nodal agency has been deputed to collect and collate POSH data, although there is a duty to do so under Section 23 of the Act. In order to ensure compliance with the State’s responsibilities in this regard, there is a need for robust and coordinated action between the Ministry of Women and Child Development, the Ministry of Labour and Employment as well as the State Legal Services Authority. There is also a need to collect sector-wise information on reported cases and their compliance/ status to measure the effectiveness of the Act and detect implementation gaps.

3. Reimagining ICs and LCs: is tribunalisation the answer?

Given the legal design and implementation gaps with the ICs and LCs, there has been some discourse on reimagining grievance redressal mechanisms under the Act. The Sexual Harassment of Women at the Workplace Amendment Bill, 2022 proposed replacing Local Committees with Employment Tribunals, which would be empowered to hear complaints from the aggrieved woman regardless of whether she had access to an IC. It proposed the designation of nodal officers in every block to receive complaints, and the appointment of District Judges to head the Employment Tribunals. However, the Bill did not address the lacuna in the Principal Act relating to the scope of covering informal workers and domestic workers, nor does it address the issue of constitution and functioning of any grievance redressal mechanisms.

Employment Tribunals could be an effective model of widening the ambit of the Act and creating a full-fledged civil redressal mechanism for sexual harassment. However, tribunalisation in general comes with attendant concerns of lack of resources (financial and subject matter expertise), overburdening of the District Judges (if they are not exclusively designated to head such Tribunals), pendency, and lack of oversight. This replicates the same issue as faced above in the functioning of ICs and LCs. Although it would be desirable to envision a more comprehensive judicial or quasi-judicial civil schema to deal with cases of sexual harassment, whether tribunalisation is the answer remains to be seen.

Building Safe Spaces: Physical, Structural, and Psychosocial Blocks

The Act, beyond providing a mechanism for redressing complaints of sexual harassment at the workplace, places duties on employers to prevent such instances in the first place. In this section, we suggest ways in which these duties can be actualised.

1. Duties of employers under the POSH Act

Section 19 of the POSH Act places legal requirements on employers to prevent and redress sexual harassment. The duties of employers can be classified into three: maintaining a safe and aware working environment, sensitising employees and members of the IC, and facilitating fair and effective inquiries into complaints of sexual harassment. It is a criminal offence for employers to not fulfil their duties under the Act.

However, there is no explanation, clarification, or guidance on how employers can create safe workplaces. Indian employers can take a cue from an ILO recommendation that envisions a risk assessment, prevention, and redressal framework focussing on the health, safety, and wellbeing of employees. Such a framework has been incorporated into the laws of countries such as Belgium, Canada, and Australia. Carrying out an audit at the workplace and other places visited in the course of employment is crucial to assess and address potential dangers.

2. Addressing various risks at the workplace

The physical risks posed to employees’ safety and wellbeing, especially from third parties, can vary according to the nature of work and the workplace. As seen recently in the RG Kar case, hospitals and similar public institutions may carry the unique risk of not having segregated and separate rest spaces for employees. Those jobs which require constant third-party interaction such as customer care, sales, or delivery may particularly expose their employees to third-party harassment. Factories and large establishments situated at the outskirts of cities or towns may require employees to travel from afar, meaning the isolated nature of the workplace may exacerbate the general risk to safety. Identifying and strengthening safety at such points of exposure is crucial as a preventive strategy.

Further, the psychosocial and cultural norms in the workplace relating to safety, gender sensitivity, and anti-sexism more broadly are equally important in maintaining a safe workplace. Rule 13 of the POSH Rules states that the employer must disseminate an internal policy on themeasures initiated to promote safe spaces and remove factors contributing to a hostile work environment against women.

To ensure that the workplace is a safe space for all employees, two distinct types of sensitisation are crucial. First, gender-based sensitisation should target all employees to promote awareness about respectful workplace behavior and to dismantle entrenched gender biases. This training is vital for fostering a culture that values equal treatment and discouraging behaviors that perpetuate sexism. Second, rights-based awareness training should focus on educating individuals who are entitled to the protections of the POSH Act. By empowering women with knowledge about the law, such training can instill confidence to seek remedies and supports the Act’s broader goal of effective redressaland prevention of sexual harassment.

Conclusion

Given that access to justice is as important as the rendering of justice, creating suitable and inclusive avenues for grievance redressal under the POSH Act is of critical importance. The existing implementation gaps in the functioning of ICs and LCs deter complainants from seeking redress, further exacerbate their difficulties and frustrate the purpose of the Act.  Employers’ lack of guidance on creating safe and respectful work environments further hampers the Act’s objectives. By strengthening the jurisdiction and functioning of ICs and LCs and undertaking sensitisation measures and capacity building at the workplace, the Act can move closer to fulfilling its promise of providing “brave” and “safe” workplaces for all women.

* Lakshita Handa is a Senior Resident Fellow at the Vidhi Centre for Legal Policy. She completed her BA LLB (Hons.) from National Law University, Punjab and thereafter attended the University of Cambridge, United Kingdom, for a Masters in Law. She primarily researches in the domain of human rights law and administrative law with an overarching objective of ensuring access to justice for all.

Jwalika Balaji is a Research Fellow at the Vidhi Centre for Legal Policy. She completed her BA LLB (Hons) from the National Law School of India University, Bangalore and read for the Bachelor of Civil Law from the University of Oxford, United Kingdom. She primarily researches the areas of family law, human rights, and equality law, with a specialised focus on gender and sexuality.

Surbhi Sachdeva is a Research Fellow at the Vidhi Centre for Legal Policy. She completed her BA in International Relations from Stanford University, followed by a BA in Jurisprudence (LLB equivalent) from the University of Oxford, United Kingdom. Her research interests lie in feminist jurisprudence, human rights, and public law.