The POSH Act (Prevention of Sexual Harassment at Workplace Act) came into effect in 2013 to address workplace harassment in India. Passed by Parliament in September 2013, it was a significant step toward making workplaces safer for women. During these 11 years, the country witnessed several important judgements under the POSH Act.
The Act focuses on establishing policies, training, and guidelines to prevent all forms of sexual harassment in corporate and professional settings. It addresses both explicit actions, such as direct inappropriate behaviour, and implicit conduct, which may be more subtle but equally harmful. By focusing on these aspects, the POSH Act seeks to create a safer and more respectful workplace environment.
Enactment of the POSH Act
It has been almost eleven years since India passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, commonly known as the POSH Act, in 2013. Before this law, sexual harassment fell under broader sexual offence laws in the Indian Penal Code (IPC) of 1860. This meant that women had no specific legal protection against workplace harassment and could only seek redress under the IPC.
In 1997, the Indian Supreme Court recognised the serious issue of gender imbalance, which often leads to violence against women, including workplace harassment. The Court noted that such acts violate fundamental rights guaranteed by the Indian Constitution and urged the government to create appropriate laws.
The Supreme Court established the Vishaka Guidelines to help prevent workplace sexual harassment. These guidelines were temporary principles until proper legislation could be enacted. Unfortunately, the Court found that many states did not adequately implement these guidelines. It took another 16 years for the POSH Act to finally take effect in 2013.
What are the important judgments under the POSH Act
Since the POSH Act took effect, India has seen many cases of sexual harassment in the workplace. Even after a decade, the enforcement of this law remains weak. Key problems include a lack of awareness about the procedures, low confidence in the process and its outcomes, and insufficient adherence to enforcement guidelines.
The Supreme Court and several high courts have made significant legal judgements to improve how workplace harassment is recognised, managed, and addressed. These judgements help explain the law’s intentions and provide clear guidelines on what committees and employers must do to comply with it. Essentially, these rulings ensure that everyone involved understands their roles and responsibilities in preventing and responding to harassment in the workplace.
Here are some of the important judgments under the POSH Act that one should know:
What constitutes as sexual harassment as per judgements under the POSH Act
The PoSH Act defines sexual harassment as any unwelcome actions, including unwanted physical contact and sexual advances, requests for sexual favours, sexually suggestive remarks, displaying pornography, and any other unwanted physical, verbal, or non-verbal behaviour of a sexual nature.
1. The Court recognised that workplace sexual harassment can also create a hostile environment for women. It highlighted situations where a male employee uses his power to pressure a woman into joining him on business trips or late-night meetings, which creates an oppressive atmosphere. This behaviour extends beyond simple harassment and contributes to an uncomfortable and unsafe work environment for women.
(Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust and Ors. (2015 SCC OnLine Del 11026)
2. The Court clarified that not every physical touch from a man to a woman counts as sexual harassment. Instead, it emphasised the importance of understanding the context and intent behind the contact. In other words, a touch may not be harassment unless it carries a sexual undertone, distinguishing it from simply inappropriate behaviour.
3. The Court explained that a man’s negative verbal remark directed at a woman isn’t enough to label it as sexual harassment. It noted that if committees accept such complaints, they could complicate fair performance reviews, especially between male supervisors and their female colleagues.
K.P. Anil Rajagopal v. State of Kerala, Kerala High Court ((2018) 1 KLJ 106)
Judgements under the POSH Act: Same-sex harassment is maintainable
In a case brought before the Calcutta High Court, an employee at an educational institution filed a sexual harassment complaint against another employee of the same gender to the Internal Committee (IC). The IC conducted an inquiry, found the respondent guilty, and recommended actions against her.
The respondent then challenged the IC’s decision in the Delhi High Court, claiming that the IC lacked the authority to handle sexual harassment complaints when both the complainant and respondent were of the same gender. She argued that employers could only act against male perpetrators. However, the Court ruled that the POSH Act does not prevent complaints of sexual harassment between individuals of the same gender. Therefore, the Court concluded that same-gender sexual harassment complaints are valid under the POSH Act.
(Dr. Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College and Ors.)
What the internal committee can/cannot do
1. The Court clarified that a Committee can start an investigation based on a complaint received from other authoritative sources. However, it is only possible if the complainant agrees to proceed with them.
Shital Prasad Sharma v. State of Rajasthan and Ors. (2018 SCC OnLine Raj 1676)
2. The Court stated that a Committee must not stop or end its investigation if the complainant decides to pursue parallel proceedings with another forum for redress. The committee must conduct its investigation independently, following the due process of the law.
Sarita Verma v. New Delhi Municipal Corporation & Ors, (2016 LLR 785 (2))
3. The Court clarified the importance of maintaining an impartial and unbiased approach during investigations. The individual members of the committee must not be under the supervision or direct authority of either party involved in the matter. That is because this arrangement makes it difficult to achieve a fair investigation.
After-hours misconduct and clarifies workplace definition in sexual harassment disciplinary proceedings
An employee from a Bank approached the High Court of Judicature for Rajasthan. The employee asked the Court to dismiss the report from the Bank’s Disciplinary Authority. The complaint involved accusations of sexual harassment made by an employee in a different state. The Disciplinary Authority investigated the claim and issued a charge sheet against the petitioner.
The petitioner argued that the Disciplinary Authority lacked the jurisdiction to file the charge sheet for two reasons. The first was that the incident did not occur at the workplace since he was in another state. The second reason was that the alleged misconduct happened after work hours.
The Court ruled that in today’s digital workspace, where employees work across different branches of the same organisation, all locations should be treated as one workplace. Additionally, the Court stated that the typical work hours of 10:30 AM to 4:30 PM do not apply to senior employees. The Court concluded that sending inappropriate messages, even after working hours, qualifies as harassment under the Bank of India Officer Employees’ (Conduct) Regulations, 1976.
Sanjeev Mishra Vs Disciplinary Authority & General Manager
Judgements under the POSH Act: Court rules victim’s testimony sufficient in harassment cases
A complaint of sexual harassment was filed against a guest instructor of a paramedic course, who allegedly molested a female trainee while travelling back from a night training exercise with others in a truck. After receiving the complaint, the Inquiry Committee conducted an investigation. They found the instructor guilty based on the complaint and testimonies from others who were on the journey.
The instructor appealed the findings to various tribunals, which upheld the Inquiry Committee’s decision. The case then reached the High Court of Uttarakhand. The instructor argued that the Inquiry Committee should not rely solely on the complainant’s testimony without additional evidence.
The Court stated that as long as the inquiry did not show that the complainant had a strong motive to fabricate her claims, the Court should trust her account. In simple terms, the Court decided that in cases of workplace harassment, the victim’s testimony alone can be enough to prove that harassment happened.
Bhuwan Chandra Pandey vs Union Of India And Others on 15 June 2020
Know your rights under the POSH Act
Understanding judgments related to sexual harassment and workplace policies is crucial for several reasons. These judgements clarify how laws like the POSH Act apply in real life. Understanding these can help victims and organisations understand their rights and responsibilities.
A survey conducted by Stratefix Consulting in collaboration with the National Human Resource Development found that only 8% of 400 working professionals were aware of the POSH policy before 2021. Alarmingly, 17% either feared reporting it or didn’t even know how.
Another survey by Walchand Plus in November 2023 revealed that 40% of working women who felt insecure were unaware of the protective measures offered by the POSH Act. Furthermore, 53% of HR professionals lacked a clear understanding of the POSH Act.
These numbers show how badly we need to raise awareness about sexual harassment laws. When people know their rights and the laws available to protect them, they feel empowered to speak up.
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