The Constitution of India enshrines fundamental rights to equality and life under Articles 14, 15, and 21, gender discrimination in the form of sexual harassment at the workplace is a direct violation of these rights. Such harassment not only fosters an unsafe and hostile work environment for women but also severely hinders their ability to succeed in today’s competitive world. Beyond impairing their professional performance, it has far-reaching consequences on their social and economic development, often leading to physical and emotional distress.
Sexual harassment of women is nowhere near a new concept and it’s a tale as old as time. However, with globalization and the continued influx of women in the mainstream workforce of India, sexual harassment at workplace has become a latest disquisition.
Since 2013 and the advent of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”), enacted by the Ministry of Women and Child Development, whose roots lie in the Vishakha Guidelines of 1997, formulated after the Bhanwari Devi gang rape case in Rajasthan, multiple legislations, related committees as well as landmark judgements have come into play.
Following the POSH Act, the government introduced the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 under the Act. Additionally, the Criminal Law (Amendment) Act, 2013 was passed in the same year, criminalizing offenses such as sexual harassment, stalking, and voyeurism.
The primary aim of the POSH Act is to prevent and protect women from sexual harassment in the workplace and to provide an effective system for redressing such complaints. While the statute is intended to offer every woman—regardless of age or employment status—a safe, secure, and dignified working environment, free from all forms of harassment, its successful implementation continues to be a challenge.
The Vishakha Guidelines have significantly raised organizational awareness regarding workplace sexual harassment, particularly in the formal sector, by formalizing compliance requirements. While these guidelines have been instrumental in setting standards and making companies more conscious of their responsibilities, there is still considerable room for improvement. The guidelines have facilitated a more structured approach to addressing harassment within corporate environments; however, they fall short when it comes to the informal sector and domestic workers, who remain largely unprotected.
In May 2023, the Supreme Court of India in the landmark judgement of Aureliano Fernandes Vs. State of Goa and Others (Civil Appeal No. 2482 of 2014), acknowledged that even after a decade of the promulgation of the POSH Act, there are ‘serious lapses in its implementation’. To remedy the situation, the Supreme Court issued various directions for effective implementation of the POSH Act. The Supreme Court observed that however salutary the enactment of the POSH Act 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. Accordingly, in order to “fulfil the promise that the POSH Act holds out to working women all over the country” it gave a list of fresh directions.
A major limitation of the POSH Act is in the ambiguous definitions of crucial terms such as “workplace,” “sexual harassment,” and “employee.” This lack of clarity results in inconsistent interpretations, making it difficult to apply the Act’s provisions uniformly across various organizations and industries.
Despite progress, there are critical gaps in implementation and enforcement of the guidelines and legislations based of it. The actual benefits often accrue more to businesses than to victims, as is highlighted by the case of Bhanwari Devi, where the intended protections did not fully reach the victim, while her case is what is claimed to have brought about the Landmark Judgement, so to say.
The prevailing outlook in the Indian society places the burden of reporting and the potential backlash on the complainant, discouraging many from coming forward. Additionally, power dynamics within organizations frequently suppress minor complaints, with many issues being overlooked or dismissed. The Local Committees (LCs) with inadequate support systems further exacerbates the problem.
Needless to mention, a thorough review is crucial to refine and clarify definitions within the Act. Expanding the definition of “workplace” to include remote work, off-site locations, and informal sectors would extend the Act’s coverage. Additionally, providing a more detailed explanation of what constitutes sexual harassment and incorporating other forms of harassment and discrimination would create a more comprehensive protection framework. Clear definitions ensure consistent and uniform application of the Act’s requirements across different sectors and work environments. The Supreme Court’s latest directions from the 2023 judgement should also help in shedding some light on the better implementation of the Act by organizations. This clarity would aid employers, workers, and law enforcement in effectively implementing and enforcing the Act. By broadening its scope, the Act would offer robust protection against various forms of harassment, irrespective of workplace or employment level, fostering a more equitable and inclusive work environment. This evolution of the POSH Act would result in a more effective framework, addressing a wider range of workplace issues and promoting a safer, more respectful environment for all employees.
In conclusion, harassment and crimes against women are issues that require first a change in societal approach and then a strong backing by the law, and for the movement to truly advance, organizations must focus on robust internal policies, proactive measures, and genuine support for all employees, extending beyond mere compliance with existing laws.
–Manasvini, Associate, Solomon & Co.
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