Supreme Court’s directions on enforcement of PoSH Act ring hollow for India’s informal sector

Highlighting that setting up of local committees as mandated by law has not catalysed the rate of registering complaints in matters of women's sexual harassment at workplace, the author identifies loopholes in the existing system and seeks to bridge the gap between aggrieved women in the informal sector and the blatant non-compliance of the LCs. 

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AGAINST the backdrop of a report published by The Indian Express, which brought to spotlight the abysmally low level of compliance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) in the national sports federations of India, the Supreme Court issued a slew of guidelines in Aureliano Fernandes versus State of Goa and Others to enforce the implementation of the PoSH Act. 

This report was collated in the context to the ongoing protests by Indian wrestlers against the chief of the Wrestling Federation of India who is accused of having sexually assaulted a few female wrestlers of the federation, including a minor. 

Based on official declarations received from the 30 national sports federations, the report notes that as many as 16 out of the 30 federations failed to meet the particulars of the PoSH Act. Among these, 11 federations had issues with their composition, while five federations, including wrestling, lacked an internal committee (IC). 

However, by and large, these directions underscore the importance of setting up well-functioning and compliant ICs/LCs in public institutions and establishments.

They also command authorities, managements and employers to take necessary steps to disseminate information about the Act and conduct programmes, workshops, seminars and awareness programmes to upskill members of the ICs and LCs. 

These directions compel the Union and state governments to undertake affirmative action in furtherance of achieving the legislative intent of the PoSH Act.

The law for the informal sector

The PoSH Act defines the term "unorganised sector" under Section 2(p) to mean an enterprise which employs less than 10 workers and is engaged in the production or sale of goods or provision of services. Section 6 concerns itself with the constitution and jurisdiction of the LC. 

It directs district officers to set up LCs in every district to receive complaints of sexual harassment from establishments having less than 10 workers (because of which an IC has not been constituted) or if the complaint is against the employer himself (regardless of the sector). A "domestic worker" under Section 2(e), if subject to instances of sexual harassment, can also report to the LC.

Also read: Delhi police take woman wrestler to Brij Bhushan Singh's official residence for crime reconstruction amid rumours of compromise

A report prepared by Paramita Chaudhari documented the perception of the occurrence of sexual harassment in hospital settings. According to the report, nurses and doctors were found to have come to terms with the fact that sexual harassment was "normal and harmless" and even an "occupational hazard". 

Further, power dynamics reigned supreme since their employers were believed to be more powerful than an institutionalised body of redress, and in some cases, women feared they would be held responsible for "provoking the incident". 

If such is the case with women in a setting where an IC has been formally set up, one can only imagine how grim the state of affairs in the informal sector must be. 

Section 7 talks about the composition of an LC. Every LC is mandatorily required to be headed by a chairperson nominated from amongst the eminent women in the field of social work and committed to the cause of women; one member to be nominated from amongst the women working in a block, taluka or tehsil (a subdivision of a district) or ward or municipality in the district; two members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organisations (NGOs) or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. 

A proviso to the Section stipulates that at least one member must be with a legal background or knowledge of the law and at least one member must belong to a Scheduled Caste, Scheduled Tribe or Other Backward Class.

Reports published in the print media have time and again highlighted the faulty and rather casual approach of the authorities towards compliance by LCs. A study of LCs in India was carried out in 2018, using data received by filing right to information queries under the Right to Information Act, 2005. 

In 2019, another report documented the nature and functioning of the LCs in Delhi, Haryana and Odisha. In 2022, the chief of the Delhi Commission for Women, Swati Maliwal, submitted a report to the state government about the lapses in the implementation of the PoSH Act. 

A reading of the reports will compel the readers to equate the role of the LCs in India to that of a paper tiger. 

Section 11 of the PoSH Act endows an LC with powers equivalent to that of a civil court under the Code of Civil Procedure, 1908 to conduct an inquiry under the Act. Among other things, this enables the LC to issue summons and enforce the attendance of any person, and require the discovery and production of documents.

Conferring LCs with powers of a civil court is a testament to how critical these bodies are to the prevention, prohibition and redressal of sexual harassment. 

Alternatively, if the victim wishes to settle the matter with her perpetrator, she may resort to Section 10, which provides the option of conciliation. However, on-record data has no mention of the number of cases, if at all any, that have been conciliated. 

This raises a few questions, the most important of them is whether even the authorities are aware of the existence of such a provision. 

The real impediments

Section 7(4) of the PoSH Act entitles the chairperson and the members of an LC to receive fees or allowances in exchange for rendering their services and holding the committee proceedings. 

Section 8 places the responsibility of sanctioning funds to the state government on the Central government. In turn, the state government will constitute an agency which will transfer the funds to a district officer. 

The Supreme Court directions are largely a regurgitation of the provisions of the PoSH Act and fail to provide a real solution to the actual impediments. 

Also read: Alarmed by rampant violations of Prevention of Sexual Harassment Act in sports, NHRC issues notice to 16 federations

In 2019, an organisation called Social Action Forum for Manav Adhikar (SAFMA), which works in the social impact space, submitted a report to the National Human Rights Commission, documenting the nature and functioning of LCs in Delhi, Haryana and Odisha. 

This report notes that the chairperson of Faridabad's LC, owing to lack of funds for training members and generating awareness workshops under the PoSH Act, had to club these activities with POCSO workshops conducted under the Protection of Children from Sexual Offences Act, 2012, funds for which were received from the Department of Women and Child Development.

The fund-crunch not only deters the chairpersons and members of various LCs from conducting awareness-generating activities and training programmes, but has also compelled some of them to tender resignations from their posts. LCs with vacant positions have even less of an ability to register and inquire into complaints, as the example of one Haryana LC shows. 

The fund-crunch and vacancies defeat the purpose of Section 6 of the PoSH Act which empowers an LC to receive and record complaints of sexual harassment. They also ensure that LCs fall short of the mandate under Sections 20 and 24 of the PoSH Act which requires the district officer and the appropriate government, respectively, to take necessary steps to publicise the Act.

However, Section 24 comes with a catch: publicising the Act is contingent upon the "availability of financial and other resources". That surely is enough justification for the default on the part of the government! The question is, if a budget is not allocated in the first place, then how will the disbursal of funds take place? 

The report presented by the chief of the Delhi Commission for Women to the state government in 2022 flagged grave lapses in the implementation of the PoSH Act in various LCs of Delhi. It highlighted the abysmally low number of complaints recorded by LCs (as between 2019–21, all LCs cumulatively recorded as few as 40 cases), lack of funds, infrastructural shortcomings, questionable composition and insufficient workforce.

It was noted that the LCs in Delhi did not have proper office spaces or permanent addresses, that all the expenses were put under the head 'office expenses' of the district, and that there was a lack of basic infrastructural equipment like printers, scanners, desktops, internet connection, water dispensers, filing cabinets and so on. 

Similarly, the SAFMA report also noted that the chairperson of Faridabad's LC had to carry the case files in her private car owing to the lack of proper office space. 

The way forward

Women in the informal sector are abundant yet abandoned. Due to gender discrimination and labour market segmentation, they are disproportionately clustered at the bottom of the economic pyramid. If factors like low, poorly structured and unstable income, negligible bargaining power and substandard work and working conditions were not enough of a disincentive, the issue of sexual harassment is just another addition to the list. 

In India, violence can safely be regarded as a means of regulating and monitoring a woman's position in society, in general, and in the workplace, in particular.

A singular law imposing identical responsibilities on the formal and the informal sector is perhaps a futile attempt at achieving the legislative intent of the PoSH Act, as the two sectors are structurally distinct and possess innumerable challenges of their own. 

Ideas or legislation alone are inadequate since effective legal regulation necessitates changes in legal consciousness and culture. Therefore, bespoke interventions for the informal sector are needed.

LCs are bodies that most rural women are either unaware of or unfamiliar with, and as such, it becomes difficult for rural women to repose their confidence in these bodies. Women in rural areas report complaints of sexual harassment to the local NGOs whose roles, responsibilities and functions are completely different from that of an LC established under the PoSH Act. 

This was also observed in the International Labour Organisation's 2015 report documenting the working conditions in India's garment industry, wherein women in the informal sector were reporting complaints of sexual harassment to local NGOs.

Also read: Field notes of a PoSH trainer: Unravelling class differences

However, from a legal standpoint, the law does not have a provision for these NGOs to formally forward such complaints to LCs. They do not have the authority, power or jurisdiction under the PoSH Act to register and inquire into such cases, as Section 11 of the PoSH Act allows only the ICs and LCs to inquire into such matters. 

Quite possibly, they direct the aggrieved person to approach and file a complaint with the LC directly, but chances are this would dissuade them from filing the complaint altogether. Hence, through means of policy intervention, creating an arrangement to synthesise the role of NGOs (who have the complaints, but not the jurisdiction) with the LCs (who have the jurisdiction, but not the complaints) can help bridge the gap. 

Adding to this mechanism, the SAFMA put forward a valuable suggestion to change the name of the committee from "local committee" to "sexual harassment local committee" in a bid to avoid confusion. The 2016 amendment of the PoSH Act vide gazette notification dated May 9, 2016, had replaced the words "local complaints committee" with "local committee" with a view to broaden the role of the LCs from being a mere body of redressal to also taking up the responsibility of publicising the PoSH Act. 

In furtherance of the same, the second recommendation would be to formally recognise and integrate grassroot women's collectives for supplementing and strengthening the role of LCs in alignment with Section 20 of the PoSH Act. Since such groups are composed of women who belong to the same category as those who are often marginalised and wronged, the missing aspect of familiarity can be duly met by such groups. 

Women's groups named 'jugnu clubs' in Assam's tea estates are one such example. These clubs, with the assistance of United Nations Women, raise awareness about the various forms of violence that women face, including sexual harassment. 

Comprehensive training sessions are provided through folk songs and plays which are all sung and narrated in the local language. The effectiveness of these clubs can safely be attributed to modern and targeted methods of disseminating information, something which ICs or LCs have reduced to a rather generic tick-the-box compliance activity.

While on one hand, we have industry initiatives like that of Vodafone Idea's corporate social responsibility decision to launch an application called MyAmbar Suraksha Chakra to assist district administrations in setting up LCs and ensuring the safety of women in the informal sector; on the other hand, we have concerns like little to no data on the ICs in factories and states in India joining the bandwagon to do away with the bar on women working in factories in the night shift. It is no surprise that this is just an added pressure on the already handicapped and strapped LCs of India. 

Thus, collective action and a strategic approach to handling the malady of sexual harassment is the need of the hour. It is, therefore, abundantly clear that it is time for the government to take substantial steps and not issue superficial directions.