Sexual Harassment at the Workplace: A relook at the POSH Act on its eighth anniversary

The Sexual Harassment of Women at the Workplace (Prevention, Prohibition & Redressal) Act, 2013 (POSH Act) came into force on December 9, 2013. Though it was passed 16 years after the Supreme Court's Vishaka judgment, it was a tremendous step forward in concretising the basic rights of women at the workplace..The Act will complete its eighth anniversary in existence in December 2021, and this would be a good occasion to ponder on the journey of the legislation, and take a look at some of the more obvious gaps..To start with, it becomes very obvious to anyone who has read Vishaka that the gist of the POSH Act seems like a cut and paste from the judgement. The legislature chose a safe path and just adopted what the Supreme Court enunciated in the 1997 verdict. One obvious fallout of this was that two untested entities came into vogue: the Internal Committee (IC) and the Local Committee (LC).Section 30 of the Act gave power to the government to remove any difficulties in giving effect to the provisions of the Act. The Ministry of Women and Child Development had published a handbook on the POSH Act in November 2015. Along with the said handbook, it would have been very helpful to the fledging ICs and LCs if the government had issued some clarifications on appointment of IC, conducting inquiry, etc. However, sadly, that opportunity was not utilised and allowed to expire..The judicial review of the POSH Act by various High Courts and the Supreme Court has provided some clarity on its various provisions. The judiciary continues to bear the torch for women’s rights by upholding the right to dignity at work, and has steadfastly refused to dilute some of the provisions of this law on grounds of hyper-technicality or procedural infirmities (LS Sibu v. Air India Limited and Others)..The principal areas that broadly call for a relook are as follows:.1. The historical evolution of the protection of women from sexual harassment was in two broad stages. The initial one was the more obvious: quid pro quo, but it took some time for the State and the courts to recognise the more subtle one: a hostile work environment. The definition of “sexual harassment” outlined in Section 2(n) of the POSH Act, read with Section 3(2) subsumes these two broad categories. In the USA, the two categories follow different contours, and try to address different aspects of the same problem. The courts in India have been treating the two as sub-categories of the prohibited conduct of sexual harassment and have applied a similar set of rules for eliciting whether sexual harassment is present in a given case. While this removes the procedural difficulties faced in the USA (the objective woman test, etc), the critical piece which has got omitted is that while a third party not directly facing sexual harassment could also raise a claim of “hostile work environment” in the USA, this may be difficult under the POSH Act due to the offending actions not being directed at such third party.While this approach simplifies the inquiry into sexual harassment, it certainly prevents anyone other than the person at whom the conduct is directed, to raise a complaint. While it may not be impossible to read into the inclusive definition of sexual harassment the rights of a third party who may have suffered indirectly due to the actions of the respondent, the course would be tortuous and may take an unduly long time to evolve.For example, a respondent intimidating or physically harassing a co-worker of the complainant and not directly interacting with the complainant would certainly be traumatic for the complainant, and hence may need to be addressed via hostile work environment, if the victim is not coming forth to raise a complaint..2. The definition of “workplace” needs a relook. The discussion currently revolves around the judicial expansion that has occurred in relation to “workplace” under the Employees Compensation Act, 1923 (ECA). However, most if not all cases under the ECA are one-time incidents, unlike sexual harassment, which usually involves a series of incidents that can happen from anywhere, thanks to modern technology. To take few examples:(i) A woman is interviewed at a company, and thereafter the male interviewer keeps proposing to her. In this case, the incidents of proposing may have been done by the respondent from his home, and when the complainant was also at her home when she received the messages/chats/calls.(ii) A few co-workers are travelling in their private time to attend the marriage of one of their co-workers. One of the male co-workers misbehaves with the complainant.In these two examples, would the alleged actions be considered as sexual harassment at the workplace? Such varied cases have come up before ICs around the country, which are grappling with trying to interpret the definition of “workplace”, and “during the course of work” to address such cases. There does not seem to be any judgments from the constitutional courts addressing this aspect presently..3. There are many procedural aspects in the POSH Act that may need to be relooked at, in light of the experiences of the past 8 years. Firstly, the time limit for filing a complaint by a victim needs to be extended, as the current 3+3 months model is too narrow. It overlooks the fact that many women in India still may not be aware of their rights and also need to overcome social stigma for even lodging a complaint. Secondly, currently, the IC can take up an inquiry only if the complainant submits a written complaint. While allowing third parties to raise a complaint has many challenges, it may be worthwhile to consider if the IC can at least conduct a preliminary inquiry without a written complaint.Thirdly, the process currently outlined in Section 11 of the POSH Act does not seem to take into account the ground realities: a majority of employees in an organisation today could be contract labour. The POSH Act is totally silent on how to handle a case where a contract labourer is either the victim or the accused. This is compounded by the fact that Section 11 says that the IC should conduct an inquiry where respondent is their employee. There is currently no accepted process to handle such cases. Further, it is totally laughable to ask your employee to approach your vendor’s IC, where the vendor’s employee has harassed your employee, and it may act as a sort of deterrent for raising a complaint..4. Currently, the IC usually consists of people who are untrained in the handling of inquiries and have no knowledge of law. In this context, a fundamental question is raised as to how an IC can exercise their power of a civil court under Section 11(3)? A counterpoint is that the external member present in the IC would provide these inputs. However, strangely, Rule 7(7) only mandates that “in conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present.” It does not mandate that the external member is present mandatorily. It is time some sort of improvement is done in this area. One can look at how the system of independent directors has been systematised over the past few decades through introduction of Director Identification Number (DIN), training for directors, a registry for directors, etc. Something akin to this for IC members may go a long way in creating a more informed IC..Nageswara Rao Pulipati and P Sridevi are Hyderabad-based advocates.