Overview of a decade of the POSH Act

From corporate world’s point of view, with the compliance culture gaining momentum together with growing perspective of ‘appropriate workplace behaviour’ in gender terms, it may be only a matter of time that the POSH Act becomes effective law on the ground.

Sometime in 2004, I advised a client for the first time on a matter relating to sexual harassment at workplace arising from a complaint filed by a woman employee. The applicable law then was the “Vishakha guidelines” laid down by the Supreme Court in a 1997 judgement, which had exhaustively enumerated what would constitute sexual harassment of women at the workplace, how to deal with complaints, remedies available and obligations of the employers.

At that time, an alarming realization was that most corporates either did not know, or did not follow, the Vishakha guidelines. The Supreme Court had exercised its powers under Article 141 of the Constitution to declare this judgement as ‘law binding on all’ till such time Parliament enacted a law. However, it was not being followed in letter or spirit.

The Sexual Harassment of Women at Workplace, (Prevention, Prohibition and Redressal) Act, 2013 (commonly called the POSH Act) had been in the pipeline for years. The trigger for passing the POSH Act was the infamously brutal rape and murder of a young Delhi woman in December 2012, called the Nirbhaya case. The incident shook the collective consciousness of society leading to a mass movement protesting lack of laws, including their enforcement, for offences against women. It was in this atmosphere that the POSH Act came into force and even the IPC was amended to introduce new offences such as stalking, voyeurism etc.

After 2013, I thought the mandatory requirement to now have a POSH policy and redressal mechanism in place would be a game-changer, but it was not to be. Even basics of having a POSH policy, constituting an Internal Committee or, creating awareness for employees were absent in most companies. It didn’t help that most corporates did not, and continue to, not have senior women employees, who could be appointed as the presiding officer of the Internal Committee.

A decade has passed since the enactment of the POSH Act. It may be an opportune moment to broadly assess how it has done.

I believe initial years were marked by neglect – a possible hangover of corporate apathy to compliance backed by Government indifference. Minimal traction for ‘gender issues’ in corporate world did not help the cause. Combined with insignificant consequences for non-compliance, poor implementation was a natural outcome. The general tendency for corporates had been to be reactive rather than pro-active and consider compliance with POSH Act only when an incident occurred. Having said this, companies which are part of larger groups, or foreign held or listed entities are generally more cognizant of following the POSH Act. Regretfully, in my view, it has been usually a theoretical exercise rather than taking advantage of this law to promote gender-sensitive or ‘appropriate’ workplace behaviour.

Thankfully, in recent times, things seem to be changing for the better, even if it is after nudges from the Courts or the Government. Some developments signifying a positive trend vis-à-vis the POSH Act implementation are discussed below.

From the Government side, efforts have been on-going to ensure compliance with the POSH Act. In 2017, the Ministry of Women and Child Development, Government of India developed an online complaint management system titled Sexual Harassment electronic–Box (SHe-Box) for registering complaints related to sexual harassment at workplace by women, including government and private employees.

Another example is of the Companies (Accounts) Amendment Rules, 2018 effective since July 31, 2018, that made it mandatory for all companies (excluding one person companies and small companies) to disclose in its annual Board of Directors’ report, a statement confirming that the company has complied with provisions on the constitution of Internal Committee under POSH Act. This was recently enforced by the Registrar of Companies, Karnataka, in September 2023, when a public company and its MD, CFO and Company Secretary were penalized with Rs. 4.5 lakh fine for not including the required statement in its Board report.

The Courts have also been helping the cause. In May 2023, a bench of Justices A.S. Bopanna and Hima Kohli of the Supreme Court stated that the “sorry state of affairs” concerning the anti-sexual harassment at workplace law even after a decade of its introduction was “disquieting”, and it was time for the Centre and States to take affirmative action. It was aptly summed up by Justice Kohli - “However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless and until there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors. If the working environment continues to remain hostile, insensitive and unresponsive to the needs of women employees, then the Act will remain an empty formality”. The Court directed the Centre, the States and Union Territories to undertake a time-bound exercise to verify that all Ministries, departments, Government organizations, public sector undertakings, institutions etc. had duly constituted Internal Committees, Local Committees and publish their details on respective website.

In October 2023, on discovering that many states had not bothered to appoint District Officers under POSH Act for all these years, the Court ordered states to do so since ‘it was not enough to have the law in place, but the redressal mechanism has to be also in place otherwise the remedy will be beyond the reach of victims’. A good example of ground reaction, possibly resulting from the Court’s observations, is the proactive seeking of information regarding POSH compliances from Gurgaon-based companies by the District Officer, notified under the POSH Act.

To conclude, at the end of its first decade, the implementation of the POSH Act is moving in the right direction. The collective affirmative action of corporates, Government and the Courts will give it impetus. From corporate world’s point of view, with the compliance culture gaining momentum together with growing perspective of ‘appropriate workplace behaviour’ in gender terms, it may be only a matter of time that the POSH Act becomes effective law on the ground.

* The views expressed in this article are personal to the author and do not reflect the views of AZB & Partners