IDENTIFYING AND ADDRESSING CHALLENGES IN IMPLEMENTING THE POSH ACT

ABSTRACT

This research article delves into organisations’ operational challenges in implementing India’s Prevention of Sexual Harassment (POSH) Act. From a societal standpoint, there is a pervasive lack of understanding about sexual harassment, necessitating continuous educational initiatives. The examination extends to the complexities surrounding ill-equipped Investigation Committees, urging solutions such as ongoing upskilling and addressing biases. Ambiguities in hearings, issues related to electronic evidence, and the absence of legal protection for victimisers are scrutinized. The article advocates for gender-neutral policies, emphasising the evolving societal landscape. Concisely yet comprehensively, it offers insights crucial for legal scholars, policymakers, and organisations striving to create safer workplaces.

Keywords

Posh Act, limitations, implementation, shortcomings

INTRODUCTION

Despite the enactment of sexual harassment laws in India over five years ago, effective implementation remains a significant challenge for enforcement agencies. The confusion between sexual harassment and general harassment often leads to misclassification of complaints, consuming valuable time for Internal Complaints Committees (ICCs). The gender-specific nature of these laws, exclusively protecting women, raises concerns in a world striving for gender equality. Recent studies highlight the need to recognise that men can also be victims of sexual harassment and rape.

Handling anonymous complaints presents challenges due to legal disclosure requirements, conflicting with natural justice principles. While the law mandates a three-month filing window for complaints, committees need more authority to accept complaints, posing challenges during movements like #MeToo. Defining the workplace is a significant challenge, especially as physical office spaces no longer solely represent work environments. Social activities, off-site, and online interactions blur these lines, raising questions about what constitutes the workplace.[1]

The constitution of committees needs revision, requiring a senior female employee and members committed to the cause of women. Ambiguity surrounding this commitment makes committee formation challenging. In summary, effective enforcement of sexual harassment laws faces challenges related to misclassification of complaints, gender-specific protection, handling anonymous grievances, defining the workplace, and committee constitution. Addressing these challenges is crucial for achieving the intended objectives of these laws and fostering safer workplaces.

Some of the most prominent challenges in the implementation of the POSH Act are:

Lack Of Understanding and Awareness About Sexual Harassment

The paramount impediment in the effective implementation of the Prevention of Sexual Harassment (POSH) Act emanates from a pervasive lack of understanding and awareness regarding the nuances inherent in the realm of sexual harassment. This overarching challenge is rooted in the nascent societal evolution wherein a comprehensive comprehension of the delineation between harassment and sexual harassment remains deficient. The prevailing obscurity within this conceptual framework renders it intricate for organisations to discern and appropriately address instances of sexual harassment.

The dearth of clarity is notably pronounced in the organisational domain, where a conspicuous lack of awareness prevails concerning the distinctions that demarcate generic harassment from the more specific purview of sexual harassment. A discernible understanding is necessary to address the prevailing challenge, impeding the efficacious execution of the statutory provisions enshrined within the POSH Act.

A consequential facet of this challenge is the limited cognisance among potential victims regarding their entitlements and the temporal dimensions within which instances of misconduct may be reported. The dearth of awareness amongst purported victims regarding the precise delineation of rights and the opportune juncture for reporting transgressions hampers the expeditious redressal of grievances.

The heterogeneity of perspectives further compounds this challenge, as disparate interpretations of conduct deemed inappropriate contribute to the impeding complexity. Despite the formulation of organisational policies ostensibly aligning with the POSH Act’s statutory imperatives, the realisation of intended benefits remains elusive, primarily due to the interpretative divergence engendered by varied perspectives.

In light of the aforementioned challenges, the imperative for organizations to engender a heightened level of awareness and understanding concerning sexual harassment is manifest. This necessitates an incisive commitment to ongoing educational initiatives, fostering a nuanced comprehension of the legal contours governing sexual harassment. The promulgation of organizational training programs, meticulously tailored to elucidate the distinctions between generic harassment and sexual harassment, stands as a foundational pillar in mitigating this challenge.

Moreover, the cultivation of a heightened sensitivity within the organizational milieu is imperative, wherein individuals are attuned to the subtle manifestations of sexual harassment. The strategic dissemination of information encapsulating the broader spectrum of sexually inappropriate behavior beyond overt instances is essential to ameliorate the existing informational lacunae.

Ill-Equipped Investigation Committee

Navigating the complexities inherent in the constitution and functionality of Investigation Committees (ICs) under the Prevention of Sexual Harassment (POSH) Act underscores the intricate tapestry of legal, organizational, and logistical challenges. The empowerment of an IC, bestowed with considerable authority, holds the promise of transformative change in the resolution of sexual harassment cases. However, the practical realization of this mechanism grapples with nuanced hurdles that warrant careful examination. A pivotal challenge arises in mitigating the risk of appointing individuals harboring biases, jeopardizing the impartiality of IC proceedings. Even among ostensibly qualified personnel, the propensity for biased mindsets poses a substantial obstacle to the equitable adjudication of sexual harassment claims. Ensuring the selection of individuals devoid of such biases demands meticulous diligence in IC appointments.

Achieving diversity within the IC, a tenet emphasized by the POSH Act, becomes a complex endeavor exacerbated by the constraints on senior-level employees bound by customary job schedules. The convergence of schedules and the resulting scarcity of senior-level personnel available for IC service introduces a significant impediment to achieving the prescribed diversity.

Complicating matters further is the potential for conflicts of interest when an IC member’s position is perceived as weaker than that of the complainant or respondent. The delicate task of identifying senior women employees, possessing both requisite qualifications and a fitting disposition for the IC, amplifies the intricacy of committee composition.

Logistical challenges emerge when IC members are dispersed across multiple locations, necessitating thoughtful considerations for meeting venues that balance accessibility and confidentiality. In response, employers must empower ICs through education on consent nuances, continual upskilling, and ready access to legal guidance. Encouraging IC members to confront and address their unconscious biases becomes a crucial step in fostering an environment of impartiality.[2]

Recognizing the formidable responsibilities shouldered by IC members, employers should institute mechanisms for acknowledgment and reward, underlining the significance of their contributions. Such measures not only incentivize commitment but also fortify the institutional framework for impartial and effective sexual harassment claim adjudication.

The persistent challenge arising from the scarcity of circumstantial evidence in sexual harassment cases necessitates a nuanced approach. Adhering to stipulated timeframes mandated by the POSH Act, ICs face the daunting task of rendering fair conclusions, requiring objective scrutiny, reliance on legal principles, and an unwavering commitment to justice.

In essence, the challenges surrounding IC appointments and their operational efficacy demand a comprehensive approach that marries legal acumen with organizational commitment. The imperative for continuous improvement underscores the collective responsibility of employers and society at large in fostering an environment conducive to the equitable resolution of sexual harassment claims.

Dealing With Electronic Evidence

An essential quandary arises within the ambit of Investigation Committee (IC) proceedings concerning the treatment of electronic evidence, particularly in instances involving WhatsApp exchanges between the complainant and the respondent, video recordings, and analogous digital records. WhatsApp conversations are frequently transposed to email platforms, and hard copies are tendered to the IC.

In contradistinction to formal judicial proceedings, it is incumbent to recognize that IC proceedings do not rigidly adhere to the procedural strictures encapsulated in Section 65B of the Indian Evidence Act, 1872, which governs the admissibility of electronic evidence. Consequently, the exacting mandate for procuring a ‘certificate’ when proffering secondary iterations of electronic records, such as email transcripts of WhatsApp dialogues, may not be automatically invoked within the IC framework.

An intrinsic query emanates from this contextual milieu: Can the IC unreservedly repose reliance upon these email transcripts absent any challenge to their authenticity or veracity by the respondent? Does the IC bear a concomitant duty to autonomously ascertain the accuracy of the WhatsApp chat extracts, thereby affirming their pristine and unaltered status? Further, does the imperative for the IC to autonomously validate the authenticity of such secondary copies crystallize only in the event of explicit contestation by the respondent?

In the contemporary paradigm, wherein electronic evidence assumes paramount significance, the imperative for elucidation on these unresolved questions becomes manifest. A conclusive enunciation by the Supreme Court is indispensable to bring clarity to the admissibility and probative value of electronic evidence in the unique context of IC proceedings. Such judicial clarity is imperative not only for procedural certainty but, more significantly, for the preservation of fairness and equity in the adjudication of matters germane to sexual harassment within organizational spheres. There needs to be a definitive judicial pronouncement on these matters begets a lacuna in the legal landscape, impelling a comprehensive and scholarly inquiry to resolve these nuanced issues.

Gender Neutral

The essence of the Prevention of Sexual Harassment (POSH) Act, 2013, is rooted in the pivotal objective of providing legal safeguards to women, thereby affording them the right to work in an environment that prioritises their safety. However, the dynamic evolution of societal norms, coupled with the progressive trajectory of liberal legal paradigms, has engendered a transformative shift in the landscape of sexual harassment. No longer confined strictly to gender-specific encounters, instances of sexual harassment now traverse a broader spectrum, involving individuals irrespective of gender or sexual orientation.

In the contemporary milieu, the recognition that the perpetration of the same offence can occur between same-sex employees, and employers or even extend to women against men has prompted a discerning response. Private enterprises, attuned to the evolving nature of sexual harassment, are increasingly adopting gender-neutral POSH policies within their workplaces. This signifies a paradigmatic departure from the traditional gender-specific approach, reflecting a commitment to inclusivity and recognising that all individuals, irrespective of gender, deserve protection from the scourge of sexual harassment.

The year 2015 witnessed a commendable stride towards inclusivity when the University Grants Commission (UGC) in India took a progressive step by promulgating gender-neutral POSH guidelines for universities. This exemplifies a conscientious acknowledgment of the broader spectrum of individuals vulnerable to sexual harassment, transcending the conventional gender binaries.

In delineating the contours of a gender-neutral approach to addressing sexual harassment, a three-pronged approach emerges – one rooted in legal precedent, another in corporate policy, and a third in institutional guidelines. Legal precedent, shaped by judicial decisions, plays a pivotal role in defining the scope and applicability of the POSH Act. As the societal understanding of gender dynamics evolves, judicial pronouncements are instrumental in expanding legal interpretations to encompass a gender-neutral framework.[3]

Concurrently, corporate policies instituted by private entities serve as catalysts for change. Proactive companies, cognizant of the shifting landscape, are formulating policies that transcend gender constraints, fostering an environment where all employees, regardless of gender or sexual orientation, are shielded from sexual harassment. Such policies not only align with legal imperatives but also contribute to cultivating a workplace culture rooted in respect and equality.

Institutional guidelines, as exemplified by the UGC’s directive for universities, reinforce the commitment to gender neutrality in addressing sexual harassment. By extending protection and recourse to all members of the academic community, irrespective of gender, these guidelines represent a commendable institutional stance towards inclusivity.

As societal morality progresses and legal frameworks evolve, the imperative to broaden the scope of the POSH Act, 2013 becomes increasingly evident. Recognizing the imperative for gender-neutral treatment of sexual harassment is not merely a legal necessity but a societal obligation. In embracing a more expansive approach, one that transcends traditional gender norms, we fortify the collective commitment to fostering workplaces and educational institutions that are safe, respectful, and truly equitable. The evolution from a gender-specific to a gender-neutral paradigm in addressing sexual harassment reflects a society maturing in its understanding of individual rights and the imperative for inclusive, comprehensive legal protections.

Legal Protection To Victimizer

The lacuna within the legal framework becomes palpable when one scrutinizes the absence of provisions safeguarding the victimizer against potential victimization in the definition. This deficiency engenders a highly problematic scenario wherein workers, contemplating the filing of a complaint, find themselves ensnared in a perpetual conundrum.

The inherent vulnerability arises from the absence of legal safeguards that would shield the alleged wrongdoer from potential reprisals or victimisation subsequent to the lodging of a complaint. This deficiency introduces a chilling effect on the willingness of workers to come forward and report instances of misconduct, as the fear of retaliation looms large without commensurate legal protections.

The absence of explicit provisions addressing protection for the accused not only undermines the principles of fairness and due process but also impedes the intended efficacy of the legal recourse available to victims. It creates a disconcerting imbalance, wherein the fear of potential victimization may dissuade individuals from seeking legal redress, thereby compromising the very essence of the legal framework designed to address workplace harassment.[4]

A prudent reformulation of the legal provisions must contemplate the inclusion of measures that afford protection to the accused against retaliatory actions. This not only fortifies the principles of equity within the legal system but also fosters an environment conducive to the open and fair adjudication of complaints. The overarching objective should be to cultivate a legal framework that ensures the protection of both complainants and respondents, mitigating the adverse consequences of potential victimization and upholding the tenets of justice.

Lack Of Social Recognition

A prevailing insensitivity toward women’s issues has long characterized Indian politics, as exemplified by the infamous incident in which Mayawati, the leader of the Bahujan Samajwadi Party (BSP), was chased by members of the Samajwadi Party (SP) inside a state guest house in Lucknow. This alarming episode, involving a sitting Member of the Legislative Assembly, underscores the vulnerability of even women in positions of power, highlighting the inadequacy of workplace protection and safety. Despite some progress, evidenced by women holding prominent positions in the current cabinet of the Government of India, India ranks 142 globally in terms of women’s representation in Parliament (IPU, UN Women, 2020). The harsh reality persists that issues related to women’s safety rarely capture sustained attention from the political class.[5]

While India has made strides since the Lucknow incident, incidents like Nirbhaya’s heinous rape case remain exceptional triggers for government response, often due to widespread protests. However, many cases of violence and sexual assault escape public notice, revealing a disconcerting lack of attention to the pervasive issue of sexual harassment in the workplace. The electorate, influenced by lingering patriarchal values, often fails to prioritise or address this concern unless the crime is steeped in sensationalism.

The Nirbhaya case, when juxtaposed with everyday instances of sexual harassment, highlights the stark difference in the speed of justice delivery. Workplace harassment cases, inherently complex and burdened by convoluted due processes, languish in prolonged litigation, and support from law enforcement and institutions is often minimal. Such incidents are sometimes downplayed as mere brash behaviour or macho exuberance, minimising the severity of the offences. The question arises: why do routine cases of sexual harassment fail to garner the attention and urgency they deserve from political leaders and authorities?

The oversight of every day, visible, yet seemingly insignificant forms of violence that women endure in workplaces exacerbates the challenges in seeking justice. The current mechanisms for addressing workplace harassment appear disinclined and inimical to women complainants, perpetuating a cycle of negligence and undermining the imperative to tackle this pervasive issue systematically.

CONCLUSION

This research article critically examines the operational challenges faced by organisations in effectively implementing India’s Prevention of Sexual Harassment (POSH) Act. The analysis spans various dimensions, beginning with the pervasive lack of societal understanding about sexual harassment, emphasising the need for continuous education. It delves into the complexities surrounding ill-equipped Investigation Committees, proposing solutions to biases and logistical issues. The article addresses ambiguities in hearings and the handling of electronic evidence and advocates for gender-neutral policies to align with evolving societal norms. It also highlights the absence of legal protection for victimisers. The research concludes with a call for comprehensive reforms to create safer, more equitable workplaces.

REFERENCES

Crime by Another Name: The casual acceptance of sexual harassment at the workplace must end, 48 Economic and Political Weekly 7, 7-9 (30 Nov 2013).
Krithi Singh, The Movement for Change: Implementation of Sexual Assault Laws in India, 39 India International Centre Quarterly 259, 259-269 (2013).
Law should recognise that men can be raped too, CENTRE FOR CIVIL SOCIETY (2014), https://ccs.in/indiaslaw-should-recognise-men-can-be-raped-too.
D Nagasaila, Sexual Harassment as Sex Discrimination, 26 Economic and Political Weekly 1965, 1965-1968
Rashmi Pradeep & Ankita Rey, Challenges in Implementing the Sexual Harassment of Women at Work Place, SHRM (2017). https://www.shrm.org/shrm-india/pages/india-challenges-in-implementation-of-the-sexualharassment-of-women-at-workplace.aspx.
Posh act: Navigating workplace safety challenges (2023) King Stubb & Kasiva. Available at: https://ksandk.com/labour/posh-act-navigating-workplace-safety-challenges/#challenges-and-lacunae-in-the-implementation-of-the-po-sh-act (Accessed: 13 January 2024).
Dalmia, A. (2019). Workplaces still face 8 challenges in implementing the POSH Act 2013. how do we change this?, Women’s Web. Available at: https://www.womensweb.in/2019/07/workplaces-still-face-8-challenges-in-implementing-posh-act-2013-how-do-we-change-this-july19wk1sr/ (Accessed: 13 January 2024).
Bharat Vasani, V.K. (2022) Posh act – implementational challenges, India Corporate Law. Available at: https://corporate.cyrilamarchandblogs.com/2022/12/posh-act-implementational-challenges/ (Accessed: 13 January 2024).
(No date) Sexual harassment at the workplace act: Providing redress or … Available at: https://journals.sagepub.com/doi/full/10.1177/0049085720957753 (Accessed: 13 January 2024).
Ilsijlm (2020) Insight on POSH act, 2013: Ankit Tiwari, ILSIJLM. Available at: https://ilsijlm.indianlegalsolution.com/insight-on-posh-act-2013-ankit-tiwari/ (Accessed: 13 January 2024).

[1] Bharat Vasani, V.K. (2022) Posh act – implementational challenges, India Corporate Law. Available at: https://corporate.cyrilamarchandblogs.com/2022/12/posh-act-implementational-challenges/ (Accessed: 13 January 2024).

[2] Rashmi Pradeep & Ankita Rey, Challenges in Implementing the Sexual Harassment of Women at Work Place, SHRM (2017). https://www.shrm.org/shrm-india/pages/india-challenges-in-implementation-of-the-sexualharassment-of-women-at-workplace.aspx.

[3] Law should recognise that men can be raped too, CENTRE FOR CIVIL SOCIETY (2014), https://ccs.in/indiaslaw-should-recognise-men-can-be-raped-too.

[4] Sexual harassment at the workplace act: Providing redress or … Available at: https://journals.sagepub.com/doi/full/10.1177/0049085720957753 (Accessed: 13 January 2024).

[5] D Nagasaila, Sexual Harassment as Sex Discrimination, 26 Economic and Political Weekly 1965, 1965-1968

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.