‘Imposed’ not ‘Implemented’: A journey of the Sexual Harassment Law

ON the face of it, the Supreme Court appears to be extremely pro-active in ensuring that the in spirit implementation of the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘the Act’). Two judgments in 2023, Aureliano Fernandes vs State of Goa (2024) and Initiatives for Inclusion Foundation vs Union of India (2023) have given extensive directions for the implementation of the Act including mandatory setting up of and training of committees, display of information regarding committees on the employer’s website, preparation of Standard Operating Procedure to streamline its implementation and monitoring. This has resulted in the direction for mandatory registration of all employers on the She-Box portal. 

Two other judgments bemoaned the “rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules”. However, they were silent on the damage done by the Supreme Court in Nisha Priya Bhatia v. Shashi Prabha (2020), where it held that the inquiry under Section 13 of the Act is only a “fact finding inquiry” and has to be followed by a departmental inquiry which  “is strictly confined between the delinquent employee and the concerned department having due regard to confidentiality of the procedure.” It further noted that the “two inquiries cannot be mixed up with each other and similar procedural standards cannot be prescribed for both”.  The judgment undid the impact of Medha Kotwal Lele (2004), where the top Court had stated that there was no requirement for a second departmental inquiry and the Internal Complaints Committee will be deemed to be the inquiry committee in sexual harassment cases. This was in keeping with the vision of Vishaka and the Act which sought to provide equal participation of the complainant as well as ensure an equitable gender sensitive body to investigate the complaint. This truncated the status of Internal Committees reducing them to toothless bodies and its repercussions are visible while other problematic issues with the law such as the Damocles sword of “false and malicious cases”, non-identification of sexual predators due to confidentiality clause and limitation for complaints continue to remain unresolved*.  Rhetoric aside, courts have struck down proceedings of the Internal Committees for non-compliance with the Act including for not furnishing documents or permitting cross examination. The plethora of contradictory judgments has mired the law in legalese which most Committees are unable to navigate through, giving rise to a cottage industry of professional lawyers replacing women’s rights groups as ‘experts’ to help unravel the legal conundrum. 

As I have argued elsewhere, the requirement of an inquiry and the onus of proving an allegation on the complainant is not a mandate in other cases of misconduct for most workers, including contract workers, interns, volunteers and all those outside the ambit of labour and service law. While adherence to basic principles of natural justice and hard won labour rights is exemplary, and should precede all disciplinary action, it is ironic that these basic principles are not mandated for private employees and contract workers in any other case and this concern with due process is confined to cases of sexual harassment while dismantling legal protection to workers in other areas. 

The periodic public outrage at gross incidents such as the rape and murder of the young Kolkata doctor give rise to polarised views of who are the “real” victims deserving of sympathy, while disregarding skewed gender relations and predatory practices that erupt as micro aggressions at the workplace. The discourse around sexual harassment is dominated by victim shaming with accusations of the weaponisation of law through exclusion of male victims and false cases by women. 

These developments along with the stigma and real dangers of victimisation and retaliation have made women reluctant to file cases.  A survey conducted in 2017 revealed that almost 70 percent of persons subjected to sexual harassment at the workplace did not report it due to stigma, fear of retribution, embarrassment, lack of awareness of reporting policies, or lack of confidence in the complaints mechanism. 67 percent of those who filed the complaint felt shortchanged and half the women left the organisation. A survey in 2021 found that while three fourths women in the formal sector were aware of the POSH law, only 4 percent employers in the formal sector conducted mandatory annual training and over half the women who had been subjected to harassment did not file complaints. 

The more worrying findings related to the informal sector where more than half of the women were subjected to physical sexual harassment with only 16 percent aware of grievance redressal mechanisms.  This lack of awareness could be attributed to the non-formation of Local Committees in most districts as per a study conducted in 2018 based on RTIs. The situation in the formal sector is not much better as a desk survey by Centre for Economic Data and Analysis reveals that only 1160 complaints had been filed in the 300 companies listed in the National Stock Exchange in 2022-23, 219 companies had nil reportage with half the complaints being from eight large companies and 27 large companies reporting nil complaints for the entire period. The report disclosed that none of the small companies had reported receipt of any complaints since the law came into force, 59 percent had not set up Internal Committees and most had reduced hiring of women.  These studies disclose the prevalence of toxic work culture, decreased hiring of women and promotion of a culture of silence. The Hema Committee Report’s findings on the Malayalam film industry of everyday sexism, gender exclusionary practices, lack of parity and retaliation on reporting are true for all working women.