Articles

Lack of Effective Implementation of Posh Act: An Analysis of the Procedural Setbacks

-By Shreya Parashar* & Parnika Goswami**

Introduction

The Supreme Court for the first time emphasised the need for legislation for the prevention of sexual harassment of women at workplaces in the landmark judgment of Vishaka v. State of Rajasthan. In the absence of law regarding the same at that time, the Court promulgated certain guidelines for the protection of women against sexual harassment at their places of work. After sixteen years of judgment, the legislature enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“the Act”) which superseded the guidelines given by the Court in 1997 while maintaining their effectiveness and adding a few other provisions.

The objective for which the Act was enacted was to ensure prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. While it has been more than seven years since the Act came into force, there is a lack of effective implementation of the Act at workplaces due to the various defects with which it is marred. The article highlights and discusses some of these setbacks in the proper implementation of the Act.

Circumstantial Evidence and Malicious Implication

A fundamental step in the preparation of a suit or any litigious matter is to gather evidence. The Act makes no mention of the type or the magnitude of evidence required for a complainant to prove her claim of being sexually harassed. However, it is a known fact that after making a claim, the ball tends to land in the complainant’s court, where the victim must prove her case. In the absence of evidence to back her claim, the aggrieved not only stands to lose the case but also becomes vulnerable to the possibility of being indicted for malicious or false implication by the formerly accused.

The Act provides no guidelines that can help a complainant decipher whether she has the attestation that would not only tip the scales in her favor but also shield her from being sued by her alleged harasser once she loses. Section 2(n) of the Act defines what all constitutes ‘sexual harassment’ vis. a vis. the Act. It goes beyond unwelcomed physical contact and brings within its purview sexually colored gestures and conduct as well. What goes amiss here is that while on the one hand, it may be relatively simpler to gather evidence in case of sexual harassment that is sufficiently documented, on the other hand, the task of proving the legitimacy of one’s complaint in the absence of material and circumstantial evidence becomes draconian. The lack of information concerning the required evidence adds to the burden of the complainant.

What is more striking here is that Section 14 of the Act makes a clear mention of the steps to be taken once the committee finds the case of the complainant to be malicious or false based on the evidence or testimony of the aggrieved woman or any other supporting her claim. Here, in a way, the Act tries to provide safeguards to a male co-worker or employer against potential false cases of sexual harassment that could jeopardize his professional life but completely overlooks the very purpose of the Act, that is to safeguard the interest of working females who are left with no recourse other than suffering in silence or quit the workplace because more often than not, salary or wages are outweighed by the toxic and restraining working environment.

Conciliation before the Inquiry

Section 10 of the Act lays down the process of conciliation to be undertaken by the Internal Committee of the Local Committee at the request of the complainant. The section states that this shall be done before the Internal Committee or the Local Committee commences an inquiry into the complaint. The Act makes no effort to demystify the reason as to why a conciliation exercise is preceded by an inquiry into the alleged misconduct. The cause for concern in such a situation arises because of two reasons. Firstly, the aggrieved woman may call for the matter to be settled through conciliation due to mounting pressure of losing her job in a situation where her claim finds no legitimacy under Section 11 or in a situation where she ultimately loses the case. Secondly, an aggrieved woman may not want to go ahead with the inquiry due to paucity or complete lack of evidence of the alleged misconduct.

The Act is completely silent on how this exercise of conciliation would shape up or how the subsequent ‘settlement’ would be reached at. Barring the lack of information, there seems to be a lack of foresight of the misuse of the section. The provision of conciliation before a formal inquiry has the potential of discouraging a complainant from going forward with her complaint due to the potential repercussions as previously mentioned. More often than not, non-physical forms of sexual harassment do not make a ‘strong’ case and in such a situation, the aggrieved may be ‘advised’ or on her own volition, take to conciliation after concluding that her chances of winning or even establishing that a prima facie case exists are too farsighted. Social factors such as race and class have a capability to detrimentally affect the complainant’s decision-making capacity that can be augmented by a lack of procedural informational.[i]

Anonymous Complaints

Section 9(1) of the Act provides for written complaint either by the aggrieved woman or any other person authorized by her to make such a complaint. The Act as well as the rules pertaining to the Act leave a grey area with respect to anonymous complaints. Further, in the case of Manjeet Singh v. Indraprastha Gas Limited, the Delhi High Court observed that anonymous complaints are bound to be rejected. While it is understandable that it may be difficult for the employer to investigate a complaint where the name of the victim or the accused or both is left out, it is imperative to also note that if complaints of such nature are ignored then the role of the Internal Committee or Local Committee which is to ensure a safe work environment for women, would be undermined.

Despite the Act being silent on the issue of anonymous complaints, some organisations such as Tech Mahindra have been proactive in maintaining a safe space for the employees and therefore stepped beyond merely complying with the provisions of the Act to ensure the same. Under Clause 8.1 of the Policy on Prevention of Sexual Harassment, they have acknowledged the sentiment that it could be embarrassing for an aggrieved person to disclose their identity while making a complaint against sexual harassment and therefore vouched to investigate into anonymous complaints as far as possible.

Suo MotoAction by Employer

Due to various reasons such as embarrassment or fear of reprisal, more often than not the victim refrains from filing a complaint against the accused. Under Section 9(1) of the Act although it is mentioned that where an aggrieved woman is unable to make a complaint on account of her physical or mental incapacity then her legal heir or any other person as may be prescribed may make the complaint on her behalf. However, it does not provide for a provision that allows an employer to take suo moto action against the accused if there is no written complaint filed by the aggrieved woman.

According to a recent survey conducted by the Indian National Bar Association, 69% victims do not report incidents, due to fear of retaliation and discrimination. It is because of this fact that there is a need for allowing suo moto action to be taken by the Internal Committee (or Local Committee) so that instances of harassment against women who are unable to file a complaint due to any reason do not go unaddressed.

Prasar Bharati, India’s largest public broadcasting agency recently released guidelines for creating general awareness on various aspects of prevention of sexual harassment of women at  workplace in general and especially for offices under its control. Under Clause 9.1 of the guidelines, a provision for taking suo moto cognizance by the Internal Committee has been provided for. Similarly, Piramal Capital and Housing Financing, a leading private company in India have incorporated a clause for Suo moto action to be taken by its internal committee.

Conclusion

The aim of the legislature while enacting the Act was to prevent, reduce and redress the instances of sexual harassment against women at workplaces. However, that can only be fulfilled if there is proper implementation of the Act. The various shortcomings and gray areas in the Act are preventing the effective implementation of the same.

The government has taken measures time and again to further the objective of the Act. For instance, the ministry of Women and Child Development in 2018 came up with ‘SHe-Box’, an online portal that enables an aggrieved to register her complaints related to sexual harassment at workplace. While such initiatives are steps in the right direction, the lacunae in implementation of the Act and various accessory measures provided by the government need to be corrected in order to achieve the goal as envisioned by the judiciary while formulating the Vishaka Guidelines which further led to the introduction of the Act in question. Various organizations too are taking steps on their own to ensure a safe workspace for their employees by modifying and adding provisions in their policies against sexual harassment but it is the need of the hour to introduce the required changes in the Act itself so that its application is able to seek the desired objective at every workplace.


[i]Anthea Worley & Sara Charlesworth & Paula McDonald, Sexual Harassment and Conciliation: Which Complaints Settle and Which Don’t, 38(2) Alternative Law Journal, 101 (2013).

The author* and the co-author** are 1st and 2nd year students at National Law University, Delhi and National Law University, Jodhpur, respectively.

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