Prevention of sexual harassment (POSH)

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the POSH Act) gives statutory form to the guidelines the Supreme Court laid down in Vishaka v. State of Rajasthan on 13 August 1997. This page deals with the Act from two sides: what an employer must put in place before any complaint arrives, and what happens, and how it can be challenged, once one does. The Employment practice page covers disciplinary process and labour code compliance more widely.

Who is protected and what is covered

The Act protects an aggrieved woman, of any age, whether or not she is employed at the workplace where the incident is alleged. Sexual harassment includes unwelcome physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. The workplace is defined widely and takes in places visited in the course of employment, including transport provided by the employer. The Act does not displace the criminal law. Conduct of this kind can also fall under the Bharatiya Nyaya Sanhita, 2023, for example section 75 (sexual harassment, formerly section 354A of the Indian Penal Code), section 74 (assault or criminal force to outrage modesty, formerly 354), section 77 (voyeurism, formerly 354C) and section 78 (stalking, formerly 354D).

The Internal Committee and the Local Committee

An employer with an office or branch of ten or more employees must constitute an Internal Committee at each such place by written order. Under section 4 it is presided over by a senior woman employee, and has at least two employee members committed to the cause of women or with experience in social work or legal knowledge, and one external member from a non-governmental organisation or association committed to the cause of women, or a person familiar with issues of sexual harassment. At least half of the members must be women. The 2013 Rules deal with the term of members and the fees of the external member.

Where an establishment has fewer than ten employees, or where the complaint is against the employer, the complaint goes to the Local Committee that the District Officer notified by the State Government constitutes for the district. The Local Committee is chaired by a woman eminent in social work and committed to the cause of women, with a woman member from the block, taluka or ward, two members from non-governmental organisations (at least one a woman, and preferably one with a background in law), and the district officer for social welfare or women and child development as an ex officio member. Its composition is set by section 7 and the Rules.

Stages of a complaint

Complaint. Section 9 requires a written complaint within three months of the incident, or of the last in a series of incidents. The committee may extend the period by a further three months, for reasons it records, if satisfied that circumstances prevented the complaint being filed in time. Where the woman cannot make a written complaint, the committee must give reasonable assistance.

Conciliation. Section 10 allows the committee, at the written request of the complainant and before it begins an inquiry, to take steps to settle the matter. A settlement cannot be based on a monetary payment.

Interim relief. Section 12 allows the committee, on the complainant's written request while the inquiry is pending, to recommend that the employer transfer her or the respondent, grant her leave of up to three months in addition to her entitlement, or grant other relief that the Rules prescribe, such as restraining the respondent from reporting on her work.

Inquiry. Section 11 requires an inquiry in accordance with the service rules of the employer, or the Rules where there are none, and requires it to be completed within ninety days. The committee has the powers of a civil court to summon witnesses, take evidence and order production of documents. Both sides must be heard.

Report and action. Under section 13 the Internal Committee reports to the employer, and the Local Committee to the District Officer, within ten days of completing the inquiry, and the findings go to both parties. The employer must act on the recommendations within sixty days. Where the allegation is proved, the recommendation is for action for sexual harassment as misconduct under the service rules and a deduction from wages as compensation, the amount being fixed under section 15 by factors such as mental trauma and loss of career opportunity.

What an employer must have in place

Section 19 requires a safe working environment, display at a conspicuous place of the penal consequences of harassment and of the order constituting the Internal Committee, regular workshops and awareness programmes, facilities for the committee to conduct its inquiry, and assistance to a woman who chooses to file a criminal complaint. The committee must prepare an annual report, and the employer must include the number of cases in its own annual report or, if it has none, inform the District Officer. Section 26 provides a fine of up to INR 50,000 for non-compliance, doubled for repetition, with possible cancellation of a licence or registration.

Challenges to a committee's process

An appeal against the recommendations lies under section 18 within ninety days, to the court or tribunal that the service rules name. Where they name none, the Rules supply the route. The common grounds are defects in the constitution of the committee, such as a missing external member or a presiding officer who is not a senior woman employee; failure to give notice or a hearing; a finding not supported by the evidence; and a punishment out of proportion to the finding. A writ petition before the High Court under Article 226 of the Constitution is available against a public employer, and against a private employer where a public duty is engaged, but the court looks at process and does not re-weigh the evidence. Section 14 allows action against a complainant who is shown to have made a false or malicious complaint, but a failure to prove the allegation is not by itself malice.

What the law does not allow

A disclosure of the proceedings. Section 16 bars publication or disclosure of the contents of a complaint, the identity of the parties and witnesses, and the inquiry proceedings, to the public, the press and the media.

A monetary settlement. Section 10(1) bars a settlement on the basis of a monetary payment.

What an employer has to decide, before a complaint arrives, is whether each committee is validly constituted at every office, since a defect there is open to challenge against whatever the committee later finds.