ARTICLE
27 March 2024

India's Sexual Harassment Law, A Decade On

IL
Ius Laboris

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A decade after the passage of the POSH Act, implementation and enforcement of the Act is still inadequate. The Supreme Court of India recently expressed...
India Employment and HR
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India recently marked the tenth anniversary of its landmark law on sexual harassment of women in the workplace (the so called ‘POSH Act').

A decade after the passage of the POSH Act, implementation and enforcement of the Act is still inadequate. The Supreme Court of India recently expressed concern over what it termed a ‘sorry state of affairs' surrounding the implementation of the Act. It pointed to lack of procedural awareness, lack of confidence in the process and outcome, a lack of strict adherence to the enforcement regime and other practical challenges as the main reasons ‘However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless there is strict adherence to the enforcement regime and a proactive approach by all State and non-State actors', the Court observed.

To remedy the situation, the Supreme Court issued directions which included, among other things, conducting regular orientation programmes, workshops, seminars and awareness sessions to upskill members of the Internal Committee (IC) and to educate employees on the POSH law. The Court referred to a newspaper report that ‘out of 30 national sports federations in the country, only 16 had constituted an IC, as mandated under the POSH Act', and where ICs were established they either had an inadequate number of members or lacked a mandatory external member. This highlights a lack of progress and a perception gap between statements and action, with companies sometimes perceived as merely paying lip service to sexual harassment issues.

A recent survey of 400 working professionals conducted by Stratefix Consulting in collaboration with the National Human Resource Development found that:

  • Only 8% of people were aware of a POSH policy prior to 2021;
  • 11% said that they would leave their organisation rather than choose to report sexual harassment;
  • 37% (mostly women) had experienced sexual harassment at work; and
  • 17% either feared or were unaware of their option to report sexual harassment.

According to another survey in November 2023, a staggering 40% of working women experiencing insecurity were unaware of the protective measures offered by the POSH Act, and 53% of HR professionals do not understand the POSH Act. These findings are not only shocking but serve as a grim reminder that the quest for gender equality must incorporate strict actions aimed at eradicating sexual harassment as a main driver of workplace inequality. Clearly, one-time online trainings for new employees and circulating/uploading a POSH policy on the intranet is not enough when employees are uncertain on how and to whom to report sexual harassment.

In addition to these weaknesses in implementation, the POSH Act and its accompanying rules are also plagued by several drafting missteps. For example, while some of the provisions of the POSH Act are gender-neutral (for example, ‘any person' can file an appeal against a sexual harassment decision by the IC), sexual harassment law in general is not gender-neutral, and under the POSH Act only an ‘aggrieved woman' can file a complaint, thereby excluding men and the LGBTQ+ community.

The POSH Act mandates formation of local committees by district administration to investigate sexual harassment complaints from women working in the informal sector and workplaces with less than ten employees (which are not required to set up an IC). However, there is no means of collecting data or information on the functioning and effectiveness of such local committees.

Moreover, the POSH Act is silent on whether the presence of the external member of the IC (appointed to provide an unbiased/neutral perspective) is compulsory, how anonymous complaints of sexual harassment are to be handled, whether the IC's inquiry report has to be unanimous or only majority, and whether there can be an appeal against an order of settlement arrived at through conciliation. Another area where further clarity is required is how (and by which IC) sexual harassment complaints are to be handled where the victim and the perpetrator belong to different organisations, and the enforceability of IC recommendations in such cases.

Additionally, while a few provisions of the POSH Act provide cursory protection against retaliation and victimisation of sexual harassment complainants and witnesses, it does not provide any definitive protection or safeguards. This is crucial, as in most cases, a complainant or witness is less likely to come forward if they doubt the level of confidentiality and protection against retaliation.

The period of limitation under the POSH Act also needs to be revisited. The current limitation period for filing the sexual harassment complaint with the IC – three months from the date of the incident (or last incident) – is unreasonably short and not in line with other similar laws. Recently, the upper house of the Indian Parliament circulated a bill that proposes to amend certain provisions of the POSH Act, including extending this time limit from three months to one year, and removing the current upper limit of three months for IC to allow delays in the filing of complaints. Undoubtedly this is a positive development, as a victim needs time to muster the courage to file a complaint, especially in sexual harassment cases where there is fear of reprisal and losing one's livelihood, the stigma associated with coming forward, and the risk of tarnishing one's professional and personal reputation. However, this proposed change is yet to come into force. Also, no statutory timeline is provided either for conducting conciliation or implementing any settlement arrived at through conciliation.

Takeaway for Employers

Despite strenuous efforts to address sexual harassment, progress is slow and sometimes frustrating. The POSH Act still faces implementation issues such as limited awareness, reluctance to report incidents (and where reported, lack of transparency, confidence in the personnel charged with carrying out investigations and the outcome), and the necessity for more effective redressal mechanisms. The latter is especially crucial for disabled employees, who are more likely to experience sexual harassment than their non-disabled peers, and those working in the informal sector (the vast majority of whom are women). Although comprehensive trainings and policies are the foundations, many organisations have not yet fully embedded and consistently reinforced these, compounding ongoing concerns about conduct and reporting. Creating a ‘speak up' culture is a priority, with robust confidentiality and anti-victimisation measures. No doubt, many of these issues can be rectified through efficient and effective implementation and monitoring of the mechanisms provided under the POSH Act, but the real challenge, which goes beyond this, is achieving the necessary ‘cultural change' within organisations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
27 March 2024

India's Sexual Harassment Law, A Decade On

India Employment and HR

Contributor

Ius Laboris is consistently recognised as the leading legal service provider in employment, immigration and pensions law. Our firms help international employers navigate the world of work successfully.
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