The Supreme Court of India (SC) recently delivered a notable judgement in Aureliano Fernandes v. State of Goa & Ors, highlighting “serious lapses” in the effective administration of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 or the POSH Act. The SC yet again directed the concerned authorities to ensure that the ministries, departments, and other organizations strictly comply with the act in a time-bound manner. It also cited a recent report by a national daily stating that 16 out of 30 of India’s sports federations do not comply with the decade-old act. The national daily published the report in the backdrop of the ongoing protest by Indian wrestlers against the Wrestling Federation of India chief, who allegedly sexually assaulted seven female Indian wrestlers.

Violations of Constitutional Rights and International Obligations

Instances of sexual harassment at the workplace are on the rise while women’s employment participation in the country is surging. Sexual harassment in workplaces violates women’s fundamental right against discrimination based on sex, among other factors, under Article 15 of the Indian Constitution. Such offenses also disregard the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), whose Article 11 calls on the States to take measures to eliminate discrimination against women in the field of employment and ensure their health protection and safety in workplaces. It is pertinent to note that India ratified the CEDAW in 1993. Furthermore, such occurrences are against the spirit of Convention No. 190 of the International Labour Organization (ILO), which focuses on eliminating violence and harassment in the world of work.

What Has Been Achieved so Far?

The Indian Government enacted the POSH Act to mitigate the occurrence of sexual harassment of women in workplaces and save them from getting involved in tedious litigation processes. Regrettably, not much has changed since. Even a decade after its enactment, the anticipated transformation has yet to materialize. As per a 2022 survey by the Women’s Indian Chamber of Commerce and Industry’s (WICCI) Council of Ethics, approximately 70% of the respondents from the formal sector stated that colleagues requested sexual favors from them. Almost the same number of respondents experienced inappropriate touching, rubbing, or patting. Surprisingly, more than 55% of the formal sector employees who faced sexual harassment decided against filing a formal complaint, primarily due to a lack of faith in the procedure or concern for their physical safety. Additionally, more than 84% of informal sector respondents believed that filing a police complaint was the only way to deal with such offenses and were unaware of the provisions of the act. The survey highlights the glaring loopholes in the proper administration of the act.

What Contributes to the Flawed Implementation?

The most prominent reason behind the ineffective implementation of the act is the laxity of employers and the concerned authorities. Section 4 of the act mandates every employer with ten or more than ten employees create an Internal Complaints Committee (ICC) for filing complaints. Because sexual harassment is a traumatizing experience, the ICCs ought to show empathy for the victim and act accordingly. They should work on the principle of “preponderance of probabilities” or the belief that the existence of a fact is more probable than its non-existence. Ideally, they should function differently from judicial courts by not relying solely on definite evidence. However, this is not the case. They often count on indisputable proof only, which is not always available, rendering the allegations frivolous.

Many organizations omit to constitute an ICC in the first place. Moreover, they often do not include an external member in their ICC mandated under the act, which leads to biases during the investigation. Such omissions violate principles of natural justice, which are mandatory to follow during investigations. Even though the act mandates the Central and State Governments maintain a database for monitoring its implementation, such data is not easily accessible to the public. Even if any data is publicly available, it is fragmented and unorganized.

Another reason for the feeble implementation is the lack of knowledge among the women employed in the informal sector. Approximately 82% of employed women in India work in the informal sector, meaning their work is not taxed or under the table. They are generally less educated and economically sound because of their low income, which makes them less aware of their rights under the POSH Act. Even though the act obligates employers to educate women regarding its provisions, they seldom do their part.

What Needs to Be Done?

In addition to addressing the implementation challenges, the Government of India must make certain amendments to the POSH Act to make it robust and aligned with the contemporary world. First, Section 9 of the act imposes a six-month limitation period to file a complaint. Such a short period is arbitrary and unjust, considering the graveness of the offense and its impact on the victim’s psyche. The limitation period must be done away with. Second, the act is only applicable to women. Exclusion of other genders from the act ignores the fact that males, among other genders, can also be sexually harassed. Thus, the act must apply to every gender, not just women, to eradicate sexual harassment in workplaces. Third, in the epoch of digitalization, there is an exigency to expand the definition of “workplaces” under the act to include cyberspace and online platforms and not just physical workplaces. Last, the act must be amended to adequately address the uncertainty regarding who will be responsible for ensuring organizations comply with its provisions and introduce harsher penalties for non-compliers, as well as periodic monitoring to ensure adherence.

Conclusion

In India, where societal arm-twisting and obligations hinder women’s growth prospects and employment participation, any instance of sexual harassment can exacerbate their reluctance to participate in the workforce. While the recent judgment by the SC provides a glimmer of hope, it is imperative to bridge the loopholes in the POSH Act and ensure its stringent implementation in order to eradicate instances of sexual harassment from workplaces. By addressing these crucial aspects, the government can effectively combat the pervasive issue and empower women in their professional pursuits.

Saransh Jauhari is a student at National Law University, Lucknow. Chitrakshi Kapgate is a student at Maharashtra National Law University, Mumbai. She is also a member of the Centre for Women, Child Rights and Gender Justice.

Suggested citation: Saransh Jauhari and Chitrakshi Kapgate, From Rhetoric to Results: Ensuring Adequate Protection from Sexual Harassment in Workplaces under India’s POSH Act, JURIST – Student Commentary, June 7, 2023, https://www.jurist.org/commentary/2023/06/jauhari-kapgate-workplace-sexual-harassment-india/.

This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at commentary@jurist.org