A Closer Look At Recent Developments In POSH Law
It has been over a decade since the Sexual Harassment of Women of Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was enacted in India with the stated objective of providing protection against sexual harassment of women at workplace and for the prevention and redressal of sexual harassment complaints. While not without its challenges, the implementation of POSH Act has undoubtedly resulted in significant strides being made in terms of awareness regarding workplace sexual harassment and providing a framework for resolving sexual harassment complaints. The jurisprudence and guidelines around POSH Act are constantly evolving and, in this article, we have set out an overview of the recent developments in relation to POSH Act.
In Aureliano Fernandes Vs. State of Goa and Others (“Aureliano Case”), the Supreme Court (“SC”) was considering a challenge by an accused against an order passed by the Internal Committee (“IC”) under the POSH Act. In the said case, the ex-parte order issued by the IC against the accused was set aside by the SC on the ground that the IC did not give the accused reasonable time to effectively participate in the proceedings and the proceedings were conducted in a hasty manner, among others. In the above case, the SC also took stock of the implementation of the POSH Act in the past decade and notably, observed that an improperly constituted IC and equally an ill-prepared IC, would be an impediment in conducting a fair enquiry and noted that there are serious lapses in the enforcement of the POSH Act even after such a log passage of time. The SC recognized that the POSH Act can succeed in achieving its object only if there is strict adherence to the POSH Act and proactive approach is taken by all state and non-state actors. In light of this, the SC laid down a set of directions to ensure that the objective behind enacting the POSH Act is fulfilled in real terms. Some of the key directions are:
Ø The Union of India, the State Governments and Union Territories to undertake a time bound exercise to verify whether all the concerned institutions, public sector undertakings, institutions, bodies, etc., have constituted local committees (“LC”)/ICs.
Ø All necessary and updated information regarding the constitution and composition of LCs/ICs, details 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 concerned organization, institution etc.
A similar exercise must 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), Universities, colleges, training centres and educational institutions and by government and private hospitals/nursing homes.
Ø The Legal Services Authority (both National and State) to develop modules to conduct workshops and organize awareness programmes to sensitize employers, employees and adolescent groups with the provisions of the POSH Act.
Ø Immediate and effective steps to be taken by the employers to familiarize members of the ICs with their duties and the manner in which an inquiry is to be conducted from the point of receipt of the complaint to the submission of the enquiry report.
Ø Employers must conduct regular orientation programs, workshops and seminar and awareness programs to upskill members of LCs/ICs and to educate women employees about the provisions of the POSH Act and relevant rules and regulations.
Ø The Supreme Court has also tasked the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued by it. In January 2023, the Government of Kerala has already launched a POSH Act compliance portal under which employers in Kerala are required to register themselves on the POSH compliance portal and upload details of the IC constituted and annual reports filed by the employers under the POSH Act.
Given these directions by the SC, there is likely to be increased scrutiny on compliances under the POSH Act and employers are well advised to look into their policies and practices on prevention of sexual harassment to ensure compliance with applicable laws.
In this context very recently in the matter of Ceeta Industries Limited , Registrar of Companies has passed an order dated September 12, 2023 where a penalty of INR 6,00,000 was levied on Ceeta Industries Limited (“Ceeta”) and of INR 1,00,000 on each of its directors for not making the requisite POSH disclosures in their Board report. Interestingly, Ceeta took the defence that it had less than 10 employees and was therefore not mandatorily required to constitute an IC, and that there was no complaint from any women workers, and that the non-disclosure in the board’s report was not intentional or deliberate. Nevertheless, it was held that Ceeta had breached its obligations under Section 134 of the Companies Act, 2013.
With the above developments, especially the directions of the SC in the Aureliano Case, there is a renewed emphasis on preventing and redressing sexual harassment at workplace, and ensuring compliance with the POSH Act, which marks a vital step towards creating safer and more inclusive workplaces. Given the increased scrutiny and both costs and reputational risk associated with non-compliances of the POSH Act, employers may consider auditing their policies and practices on prevention of sexual harassment. As the workplace landscape is rapidly evolving and continuing to adapt to the changing dynamics of workforce especially in the context of hybrid working environment, it is important for employers to comply with the POSH Act both in letter and spirit, to ensure a safe and harassment free work environment.
