'Serious Lapses In POSH Act Enforcement' : Supreme Court Issues Directions To Strengthen Law Protecting Women From Sexual Harassment At Workplace

The Supreme Court has expressed disquiet at what it called the "serious lapses" in the implementation of the the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 [POSH Act], even a decade after its enactment.

In this regard, the Court took note of a recent report in a national daily which stated that out of the 30 national sports federations in the country, 16 have not constituted an Internal Complaints Committee till date. Where the ICC have been found to be in place, they do not have the stipulated number of members or lack the mandatory external member.

Terming this as a "sorry state of affairs", the bench comprising Justices AS Bopanna and Hima Kohli proceeded to issue a set of directions to strengthen the implementation of the POSH Act.

Further, the Bench opined that being the victim of sexual harassment brings down the self-esteem of a person as well as mental and physical health. Despite this, one of the reasons for not reporting instances of sexual harassment could be the uncertainty about “who to approach under the Act for redressal of their grievance”. Another factor is the lack of confidence in the process and its outcome, the Bench pointed out.

“This is indeed a sorry state of affairs and reflects poorly on all the State functionaries, public authorities, private undertakings, organizations and institutions that are duty bound to implement the PoSH Act in letter and spirit. Being a victim of such a deplorable act not only dents the self esteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many of them even drop out from their job. One of the reasons for this reluctance to report is that there is an uncertainty about who to approach under the Act for redressal of their grievance. Another is the lack of confidence in the process and its outcome. This social malady needs urgent amelioration through robust and efficient implementation of the Act. To achieve this, it is imperative to educate the complainant victim about the import and working of the Act.”

Creating awareness important

The Court underscored the importance of making sexual harassment victims  aware of how a complaint can be registered, the procedure that would be adopted to process the complaint, the objective manner in which the ICC/LC/IC is expected to function under the Statute, the nature of consequences that the delinquent employee can be visited with if the complaint is found to be true, the result of lodging a false or a malicious complaint and the remedies that may be available to a complainant if dissatisfied with the Report of the ICC/LC/IC etc.

Direction issued :

“To fulfil the promise that the PoSH Act holds out to working women all over the country”, the Court has issued the following directions:

(i) The Union of India, all State Governments and Union Territories are directed to undertake a timebound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted Internal Complaints Committee/Local Committees/Internal Committees, as the case may be and that the composition of the said Committees are strictly in terms of the provisions of the PoSH Act.

(ii) To ensure that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies are made readily available on the website of the concerned Authority/Functionary/ Organisation/Institution/Body, as the case may be. The information furnished should be updated from time to time.

(iii) A similar exercise to be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes. (iv)

(iv) Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the Report submitted.

(v) The authorities/management/employers to regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women’s groups about the provisions of the Act, the Rules and relevant regulations. (vi)

(vi) The National Legal Services Authority(NALSA) and the State Legal Services Authorities(SLSAs) to develop modules to conduct workshops and organize awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar.

(vii)The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules. (viii)

(viii)To transmit a copy of this judgment to the Secretaries of all the Ministries, Government of India who shall ensure implementation of the directions by all the concerned Departments, Statutory Authorities, Institutions, Organisations etc. under the control of the respective Ministries. A copy of the judgment shall also be transmitted to the Chief Secretaries of all the States and Union Territories who shall ensure strict compliance of these directions by all the concerned Departments. Further, the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory are responsible to ensure implementation of the directions issued.

(ix) The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transmit a copy of this judgment to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implementing the directions issued.

(x) Member-Secretary, NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States.

(xi) The Chairperson, Bar Council of India and the Apex Bodies mentioned in sub-para (ix) above, shall in turn, transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be.

This apart, the Bench also asked the Union and all States/UTs to file their affidavits within eight weeks for reporting compliances. The matter is expected to come up for this purpose after two months.

Without strict enforcement, dignity of women can't be ensured

The Court stated :

"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. If the authorities/managements/employers cannot assure them a safe and secure work place, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt. It is, therefore, time for the Union Government and the State Governments to take affirmative action and make sure that the altruistic object behind enacting the PoSH Act is achieved in real terms".

Case Title: Aureliano Fernandes Versus State Of Goa And Others | Civil Appeal No. 2482 Of 2014

Citation : 2023 LiveLaw (SC) 424

Click Here To Read/Download Judgment