Though the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, more commonly known as the PoSH Act, came into force on December 9, 2013, even after a decade of its passing, a number of gaps in its implementation remain. This blog series is focused on illuminating several of the issues identified by researchers, advocates, and companies that lead to less effective implementation of the POSH Act.
The PoSH Act, which built upon the Vishakha Guidelines, focuses on protecting women from unwanted sexual harassment in the workplace. As evident from the cases that have arisen from the POSH Act over the last 10 years, we can see that there remain a number of ambiguities in the language of the law, which have led to its ineffective implementation. In this post I try to address some of these issues that have been litigated at the High Courts under the POSH Act in the last 3 years:
- The right to cross-examination and natural justice: In Nutrition & Ors vs Suddhasil Dey & Anr (2020), the Calcutta High Court decided on the procedural requirements of an inquiry, both under the POSH Act and a disciplinary inquiry. The Court held that that there is nothing under the 2013 Act or the 2013 Rules which states that a respondent to a complaint of sexual harassment at the workplace, has no right to cross-examine a complainant. The right of cross-examination has to be read into the 2013 Act and the 2013 Rules. It held that the law relating to inquiries/trials against delinquent/accused in invariably recognizes the right of cross- examination as a basic right of a fair hearing. The failure to extend opportunity of cross-examination in course of an inquiry/trial could legitimately give rise to a grievance at the instance of the delinquent/accused of being denied reasonable opportunity of defence, which is fundamental in relation to proceedings which have the potential of depriving such delinquent/accused of his valuable right under Article 21 of the Constitution. It held that courts have to be zealous to guard against failure/omission/neglect of an employer to extend whatever procedural safeguards as are available to a respondent under the 2013 Act, to the extent of the legislative intent without compromising the aspect of ensuring safety and security of the complainant.
- Can the law cover same sex harassment? Though the law has clear definitions about who a harasser and an aggrieved party are, questions remain such as whether the harasser can be a person of the same gender? In Dr. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College and Ors.,(2020) the Calcutta High Court held that the definition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective. As sexual harassment pertains to the dignity of a person which relates to her/his gender and sexuality, it does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act and held that a person of any gender may feel sexually harassed as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act and thus under Section 3(2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se and thus included the recognition of sexual harassment between persons of the same gender.
- Can students be covered under the Act: This has been a debated issue, and in Pawan Kumar Niroula vs. Union of India (2021), the Calcutta High Court held that students in school fall under the definition of “aggrieved woman” and therefore students who have been sexually harassed are also protected by the Act.
- The Film industry as a workplace: Though the PoSH Act defines what a workplace is for the purpose of the law, there remains some confusion as to whether certain workplaces, such as film production units, qualify. In Women in Cinema Collective vs. State of Kerala (2022) the Kerala High Court ruled that a production unit can be defined as a workplace for a film and, as such, an ICC must be constituted for a production unit of more than 10 people and also passed other directions where the government was also required to set up a Local Complaints committee for complaints. This is extremely important in light of the numerous cases of sexual harassment being experienced by women in the film industry during the MeToo movement, and the fact that there was no ICC constituted in the film industry in the country.
Thus, as we can see, numerous aspects of the PoSH Act have been clarified through litigation in the past several years. As the Supreme Court itself stated in a May 2023 judgment, implementation of the PoSH Act remains concerningly irregular, which renders it much less effective than it could be. While these judgements, and the considerable media attention the PoSH Act has garnered in recent months, are a step in the right direction, more must be done to implement this law and protect women’s physical and mental wellbeing in the workplace.
This blog has been written by our intern Alexander Blitzer, a Fullbright scholar.