The story so far:

Ten years after the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH) came into force, the Supreme Court Bench of India has said there are “serious lapses” and “uncertainty” regarding its implementation.

In 1992, Bhanwari Devi, a social worker with the Women’s Development Project of the Rajasthan government was gang-raped by five men after she tried to prevent the marriage of a one-year-old girl. While hearing pleas filed by activist groups against the crime, the SC, noting the absence of any law “enacted to provide for effective enforcement of the basic human right of gender equality” guarantee against “sexual harassment at workplaces”, laid down a set of guidelines in 1997, christened the Vishakha Guidelines, to fill the statutory vacuum till a law could be enacted. These were to be “strictly observed in all workplaces” and were binding and enforceable in law.

After this, the Protection of Women against Sexual Harassment at Workplace Bill was introduced by then Women and Child Development Minister, Krishna Tirath, in 2007. It was later tabled in Parliament and went through amendments. The amended Bill came into force on December 9, 2013, as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) or PoSh Act.

The PoSH Act defines sexual harassment to include unwelcome acts such as physical contact and sexual advances, a demand or request for sexual favours, making sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Under the Act, an employee is defined not just in accordance with the company law. All women employees, whether employed regularly, temporarily, contractually, on an ad hoc or daily wage basis, as apprentices or interns or even employed without the knowledge of the principal employer, can seek redressal to sexual harassment in the workplace.

The law expands the definition of ‘workplace’ beyond traditional offices to include all kinds of organisations across sectors, even non-traditional workplaces. It applies to all public and private sector organisations throughout India.

The law requires any employer with more than 10 employees to form an Internal Complaints Committee (ICC) which can be approached by any woman employee to file a formal sexual harassment complaint. It has to be headed by a woman, have at least two women employees, another employee, and a third party such as an NGO worker with five years of experience, familiar with the challenges of sexual harassment. Besides, the Act mandates every district in the country to create a local committee to receive complaints from women working in firms with less than 10 employees and from the informal sector, including domestic workers, home-based workers, voluntary government social workers and so on. The employer has to file an annual audit report with the district officer about the number of sexual harassment complaints filed and actions taken at the end of the year.

The Supreme Court in its recent judgment called out the lacunae in the constitution of ICCs, citing a newspaper report that 16 out of the 30 national sports federations in the country had not constituted an ICC to date. The judgment also flagged the improper constitution in cases where the ICCs were established — pointing out that they either had an inadequate number of members or lacked a mandatory external member. This, however, is not the only implementation-related concern when it comes to the PoSH Act. One of the concerns is that the Act does not satisfactorily address accountability, not specifying who is in charge of ensuring that workplaces comply with the Act, and who can be held responsible if its provisions are not followed. Stakeholders also point out how the law is largely inaccessible to women workers in the informal sector. Additionally, experts have noted that in workplaces sexual harassment cases are hugely underreported for a number of reasons. The framers of the law had recognised that complaints could be more effectively addressed within civil institutions (workplaces) so that women did not have to go through the daunting processes of the criminal justice system related to accessibility and timeliness. However, the inefficient functioning and the lack of clarity in the law about how to conduct such inquiries have ended up duplicating the access barriers associated with the justice system. Most importantly, the power dynamics of organisations and fear of professional repercussions also stand in the way of women for filing complaints.

The court directed the Union, States and UTs to undertake a time-bound exercise to verify whether Ministries, Departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc. had constituted Internal Complaints Committees (ICCs), Local Committees (LCs) and Internal Committees (ICs) under the Act. These bodies have been ordered to publish the details of their respective committees in their websites.