PoSH Act Doesn't Cover Sexual Harassment Of Women Seeking Jobs, Govt Should Consider Framing Laws With More Feminist Perspective: Kerala HC

The Kerala High Court today orally pointed lacunae in the PoSH Act 2013, stating that the legislation doesn't take within its purview sexual harassment faced by women seeking employment.

The law only applies to sexual harassment of women at the workplace, thus excluding informal situations where there is no clear employer-employee relationship. 

"Job seekers do not come in POSH Act. How would POSH Act deal if something is relating to a woman who is seeking an employment," a special bench of Justice A. K. Jayasankaran Nambiar and Justice C. S. Sudha, dealing with cases relating to Justice Hema Committee Report which disclosed large-scale sexual harassment in the Malayalam cinema, orally asked.

It mentioned that the Report refers to instances where women faced exploitation even before the production of the film started. Court thus called upon the State to come out with a draft legislation from a more "feminist perspective".

The Court stated that State Government has a constitutional obligation to address the issues faced by women in the society, especially in their workplace. 

The Court stated, "Silence and inaction not being options available to the State Government any more, we are of the definitive view that the State government must take immediate steps to address the various issues generally faced by women in our society, including those faced by women in connection with their respective vocations. While the Directive Principles of State Policy enumerated under Part-IV of the Constitution, especially Articles 38, 39 (a), (d), (e) & (f), 42, 43 & 46 that are relevant in the present context, make it obligatory on the State to apply the said principles in making laws, Article 51-A (e) of the Constitution makes it the duty of every citizen, inter alia, to renounce practices derogatory to the dignity of women. The State will do well to remind itself that the collective duties of the citizens in society translates into a duty of the State and hence it cannot afford to remain a mute spectator to the social and economic injustice that is meted out to women in general, who constitute a significant section of its citizenry."

It said there is no point in batting for greater female representation, if the "social construct" does not cater to their needs. The legislature should keep in mind the sensitivities faced by women and frame tailor-made legislation to ensure access to justice is easier for them, it said.

"We are talking about women in general, their problems in society and not just in cinema. This is not confined to sexual offences alone...It must not be limited to female sex, there is transexuals, intersectionality, physical disability. All of them must be considered when a draft is being made. Let us put together a draft like that," it added orally. 

The Court also suggested that arbitration and mediation proceedings can also be used to redress issues faced by women. It observed that even the POSH Act has provisions for arbitration and mediation. Court stated that issues about wages, gender discrimination and labour disputes faced by make up artists could be dealt by mediation. 

Case Name: Navas A @ Paichira Navas v State of Kerala and other matters. 

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