Challenges in Implementing the POSH Act: Insights and Legal Considerations

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) was a long-awaited piece of legislation in India that came into force after a 16-year delay, following the Supreme Court's directions in the landmark 1997 case Visakha v. State of Rajasthan. In the Visakha Guidelines, the apex court laid down measures to prevent sexual harassment of women in the workplace. Although the Act was finally passed in 2013, its implementation has encountered several challenges, and the legislation remains far from flawless.

The Legislative Scheme

The POSH Act mandates that every workplace, whether in the private or public sector, must set up an Internal Complaints Committee (ICC) to handle complaints of sexual harassment. This is a significant shift from the traditional reliance on the judicial system for such matters, as the Act envisions a process independent of overburdened courts. The Act empowers the ICC to conduct inquiries and resolve complaints of sexual harassment internally, providing an expedited and non-judicial alternative.

Key to the structure of the Act is its definition of an "aggrieved woman," which covers any woman, regardless of employment status, who claims to have been subjected to sexual harassment. Additionally, the Act's scope is extensive, addressing a wide range of workplaces, from corporate offices to educational institutions. It also recognises that sexual harassment can occur between members of the same gender, as clarified in the Malabika Bhattacharjee case.

Another pivotal requirement is the constitution of the ICC, which must consist of at least four members. This includes a woman presiding officer, who must be a senior employee, and an external member who has experience in social work or sexual harassment issues. While the Act encourages gender balance in the committee, the Rules leave certain ambiguities, such as whether the quorum needs to have a majority of women or an external member.

Key Implementation Challenges

Despite its progressive nature, several challenges have hindered the effective implementation of the POSH Act.

1. Lack of Expertise in the ICC

One of the most significant challenges is the lack of expertise among ICC members. While the Act confers powers similar to those of a civil court to the ICC, members often lack the legal or judicial background necessary to carry out quasi-judicial functions. As a result, many inquiry reports are challenged in higher courts, where they are sometimes annulled for not adhering to principles of natural justice. This gap between the theoretical framework of the Act and the practical application by the ICC has been highlighted in several legal precedents.

Moreover, the members of the ICC are often unfamiliar with the nuances of legal procedures, further complicating the investigation process. To address this, there has been a judicial emphasis on the need for proper training for ICC members to ensure that they can effectively carry out their responsibilities.

2. Conflict of Interest with Senior Management

Another challenge is the potential bias when complaints are made against senior management. In cases where the accused is a high-ranking official, such as a CEO or CFO, there is a hesitation among some ICC members to conduct a fair inquiry due to concerns over career repercussions or organisational pressures. This can lead to a lack of impartiality and compromise the integrity of the inquiry.

3. Confidentiality Concerns

The Act mandates strict confidentiality during investigations, prohibiting the dissemination of any details regarding the inquiry to the media or public. However, in practice, information often leaks, either within the organisation or to external media outlets. This compromises the privacy of both the complainant and the accused, and may even influence the course of the investigation. Ensuring the confidentiality of proceedings is a significant concern for the ICC, which often faces challenges in maintaining secrecy, especially when dealing with high-profile cases.

4. Dealing with Electronic Evidence

With the increasing reliance on digital communication, electronic evidence-such as WhatsApp chats, emails, and video recordings-has become a critical component of many sexual harassment cases. The POSH Act does not provide clear guidelines on how the ICC should handle electronic evidence. The Indian Evidence Act’s provisions on electronic records, particularly Section 65B, do not apply directly to ICC inquiries since these are not considered judicial proceedings.

This raises questions about the authenticity of electronic evidence, especially when secondary copies, such as printouts of messages or exported WhatsApp chats, are submitted. The ICC must decide whether it can accept such evidence without verifying its authenticity unless contested by the accused. Given the central role of electronic evidence in modern-day harassment cases, these procedural uncertainties need to be addressed.

The Need for Legislative Clarity

Despite the POSH Act’s intent to create a robust framework for addressing sexual harassment at the workplace, there remain significant gaps in the law. The ambiguity surrounding the majority or unanimous decision-making process within the ICC is one such example. The Act and Rules do not clarify whether the ICC’s report needs to be unanimous or can be decided by majority vote, leading to inconsistent applications of the law.

Moreover, while the Act gives the ICC powers similar to those of a civil court, the lack of legal expertise among its members means that many inquiries fall short of the standards of natural justice. As noted by the judiciary, the principles of fairness, impartiality, and transparency should guide the ICC’s conduct, but these principles can be difficult to uphold when the members are not adequately trained or when there are conflicts of interest.

Moving Forward

The POSH Act represents an essential step in providing women with the legal tools to challenge sexual harassment in the workplace. However, its full implementation is contingent on resolving several key issues. These include providing adequate training for ICC members, addressing confidentiality breaches, clarifying procedural issues such as the handling of electronic evidence, and ensuring impartiality when complaints involve senior management.

To strengthen the Act’s enforcement, it is vital that lawmakers revisit the Act and the accompanying Rules to provide clearer guidance on the functioning of the ICC and to fill the gaps in the legislation. Additionally, the judiciary must continue to play an active role in interpreting the law and offering guidance to ensure that the principles of natural justice are followed. Only then can the POSH Act live up to its potential of creating safer workplaces for women across India.