Supreme Court Directs Nationwide Implementation of POSH Act: Initiatives for Inclusion Foundation vs. Union of India (2023)

Introduction

Date of the Judgment: 19 October 2023

Citation: 2023 INSC 927

Judges: S. Ravindra Bhat, J., Dipankar Datta, J.

Is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) being effectively implemented across India? The Supreme Court of India addressed this critical question in a recent judgment, highlighting significant gaps in the Act’s enforcement and issuing directives to ensure its proper implementation. This case emphasizes the need for a robust mechanism to protect women from sexual harassment in all workplaces.

The Supreme Court, in this case, examined a petition seeking the effective implementation of the POSH Act, 2013. The court noted inconsistencies and lacunae in the implementation of the Act across various states and union territories. The bench of Justices S. Ravindra Bhat and Dipankar Datta issued a series of directions to the Union Government, State Governments, and Union Territories to rectify these issues and ensure the Act’s objectives are met.

Case Background

The Initiatives for Inclusion Foundation filed a writ petition under Article 32 of the Constitution, seeking orders to ensure the implementation of the POSH Act, 2013, and the POSH Rules, 2013. The petitioner highlighted the lack of uniformity and several gaps in the implementation of the Act across the country, particularly concerning the constitution of Internal Complaints Committees (ICCs) and Local Committees (LCs), appointment of District Officers and Nodal Officers, and the collection of annual compliance reports.

The petitioners sought specific directions, including:
✓ Directing all states and UTs to implement the POSH Act and Rules.
✓ Directing states and UTs to appoint District Officers as per Section 5 of the Act.
✓ Directing states and UTs to constitute LCs in all districts as per Sections 6 & 7 of the Act.
✓ Directing states and UTs to appoint Nodal Officers as per Section 6 of the Act.
✓ Directing states and UTs to constitute ICCs in all workplaces as defined in Section 2(o) of the Act.
✓ Directing states and UTs to ensure reporting and collection of Annual Compliance Reports.
✓ Directing states and UTs to publish consolidated annual compliance reports.
✓ Directing states and UTs to publicize the Act and Rules.
✓ Directing states and UTs to display the gist of important provisions at all workplaces.
✓ Directing the Union Government to frame rules to clarify the role of districts in collecting annual compliance reports, collecting fines for non-compliance, and identifying the appropriate authority for collecting fines.

Timeline

Course of Proceedings

The judgment does not mention any lower court proceedings. The case was directly filed as a writ petition in the Supreme Court of India under Article 32 of the Constitution.

Legal Framework

The judgment primarily revolves around the interpretation and implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (POSH Rules). The key provisions discussed are:

• Section 2(b) of the POSH Act: Defines “appropriate government” responsible for monitoring the implementation of the Act.
• Section 2(f) of the POSH Act: Defines “employee” to include a wide range of workers, including regular, temporary, ad hoc, daily wage, contract, and voluntary workers.

  “(f) “employee” means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name”

• Section 2(g) of the POSH Act: Defines “employer” to include heads of departments, organizations, and any person responsible for the management, supervision, and control of the workplace.

  “(g) “employer” means— (i) in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf; (ii) in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace.”

• Section 2(o) of the POSH Act: Defines “workplace” to include a wide range of locations, including government and private organizations, hospitals, sports venues, and even dwelling places.

  “(o) “workplace” includes— (i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society; (ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service; (iii) hospitals or nursing homes; (iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto; (v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey; (vi) a dwelling place or a house”

• Section 4 of the POSH Act: Mandates the constitution of an Internal Complaints Committee (ICC) by every employer.
• Section 5 of the POSH Act: Empowers the appropriate government to notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every district.

  “5. The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer. for every District to exercise powers or discharge functions under this Act.”

• Section 6 of the POSH Act: Provides for the constitution of a Local Committee (LC) in each district by the District Officer and appointment of Nodal Officers.
• Section 7 of the POSH Act: Details the composition of the Local Committee.
• Section 8 of the POSH Act: Provides for the payment of allowances to the Chairman and members of the LC.
• Section 10 of the POSH Act: Deals with conciliation in the matter of complaints of sexual harassment.
• Section 11 of the POSH Act: Grants the Local Committee powers equivalent to a civil court.
• Section 13 of the POSH Act: Outlines the inquiry process and recommendations by the ICC or LC.
• Section 13(3) of the POSH Act: Provides for recovery of sum directed to be paid by the ICC/LC as an arrear of land revenue to the concerned District Officer.
• Section 14 of the POSH Act: Deals with the action to be taken in case of a false or malicious complaint.
• Section 16 of the POSH Act: Mandates confidentiality regarding the complaint and inquiry proceedings.
• Section 17 of the POSH Act: Provides for a penalty for publication or making known the contents of the complaint and inquiry proceedings.

  “17. Where any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed.”

• Section 19(b) of the POSH Act: States the duty of each employer to display the gist of important provisions at all working places.
• Section 20 of the POSH Act: Lists the duties and powers of the District Officer, including monitoring the timely submission of reports by the LCs and taking measures to create awareness.

  “20. The District Officer shall, – (a) monitor the timely submission of reports furnished by the Local Committee; (b) take such measures as may be necessary for engaging non-governmental organisations for creation of awareness on sexual harassment and the rights of the women.”

• Section 21 of the POSH Act: Requires the ICC and LC to prepare annual reports and submit them to the District Officer.
• Section 22 of the POSH Act: Requires the employer to mention the number of cases lodged and disposed of in its annual report.
• Section 23 of the POSH Act: Mandates the appropriate government to monitor the implementation of the Act and maintain data on the number of cases filed and disposed of.

  “23. Appropriate Government to monitor implementation and maintain data.- The appropriate government shall monitor the implementation of this Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplaces.”

• Section 24 of the POSH Act: Obligates the appropriate government to take measures to publicize the Act.

  “The appropriate Government may, subject to the availability of financial and other resources , — (a) develop relevant information, education, communication and training materials, and organise awareness programmes, to advance the understanding of the public of the provisions of this Act providing for protection against sexual harassment of woman at workplace; (b) formulate orientation and training programmes for the members of the [Local Committee].”

• Section 25 of the POSH Act: Empowers the appropriate government to call for information and inspection of records.
• Section 26 of the POSH Act: Defines penalties for non-compliance with the Act.

  “26. (1) Where the employer fails to— (a) constitute an Internal Committee under section 4; or (b) take action under sections 13, 14 and 22; or (c) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder, he shall be punishable with fine which may extend to fifty thousand rupees. (2) If any employer, after having been previously convicted of an offence punishable under this Act, subsequently commits and is convicted of the same offence, he shall be liable for— (a) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence; (b) cancellation of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.”

• Section 29 of the POSH Act: Empowers the Union Government to make rules for carrying out the provisions of the Act.
• Rule 5 of the POSH Rules: Deals with the payment of allowances to the Chairman and members of the LC.
• Rule 9 of the POSH Rules: Deals with the inquiry process by the ICC and LC.
• Rule 10 of the POSH Rules: Deals with the action to be taken in case of a false or malicious complaint.
• Rule 12 of the POSH Rules: States the fine to be Rs. 5000, which is to be collected by the employer for contravention of Section 16 of the POSH Act.
• Article 32 of the Constitution of India: Grants the Supreme Court the power to issue writs for the enforcement of fundamental rights.

Arguments

The petitioner, Initiatives for Inclusion Foundation, argued that:

• The POSH Act is not being implemented uniformly across the country.
• Many states have not notified District Officers as required under Section 5 of the POSH Act.
• Local Committees (LCs) have not been constituted in all districts as mandated by Sections 6 and 7 of the POSH Act.
• Nodal officers have not been appointed in every block, taluka, tehsil, ward, or municipality as required under Section 6(2) of the POSH Act.
• There is a lack of clarity regarding the role of District Officers in collecting annual compliance reports from ICCs and LCs.
• There is no clear mechanism for collecting fines for non-compliance with the Act.
• The annual compliance reports are not being consolidated and published in the public domain.
• There is a lack of awareness about the provisions of the Act among the general public.

The Union Government and various State Governments submitted affidavits and argued that:

• Awareness campaigns have been conducted to publicize the Act.
• Advisories and handbooks have been issued to guide implementation.
• Efforts are being made to ensure compliance with the Act.
• Some states have notified District Officers and constituted LCs.
• The implementation of the Act is being monitored.

However, the Supreme Court noted that:

• Many states have tried to fit the institutional requirements of the Act within their existing bureaucratic frameworks.
• District Officers were mostly notified after the notice of the writ petition was served.
• Many states have not constituted LCs in each district.
• Only a few states have provided details of nodal officers.
• Most states have failed to provide consolidated annual compliance reports.
• Each state has notified a different ministry as the nodal ministry for the implementation of the Act.

Innovativeness of the Argument: The petitioner’s argument was innovative in highlighting the systemic failures in the implementation of the POSH Act, despite its existence for several years. The petitioner effectively pointed out the discrepancies in the actions taken by various states and the Union Government, emphasizing the need for a more structured and uniform approach.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Rules, 2013 are being implemented effectively by the Union of India, States, and Union Territories?
2. Whether the States/UTs have notified and appointed District Officers as per Section 5 of the Act?
3. Whether the States/UTs have constituted LCs in all the districts as per Sections 6 & 7 of the Act?
4. Whether the States/UTs have appointed Nodal Officers as per Section 6 of the Act?
5. Whether the States/UTs have constituted ICCs as per Section 4 of the Act in all workplaces defined in Section 2(o) of the Act?
6. Whether the States/UTs are ensuring reporting and collection of Annual Compliance Reports from all workplaces by all the District Officers of respective States as per Sections 21 and 22 of the Act?
7. Whether the Annual Compliance Reports collected by District Officers are being consolidated and published in the public domain?
8. Whether the States/UTs are giving due publicity to the Act and Rules in all the Districts?
9. Whether the gist of important provisions is displayed at all working places in all the States/UTs?
10. Whether the Union Government has framed rules and/or directions as provided in Section 29 of the Act, to clarify the role of Districts in collecting annual compliance reports from ICCs and LCs, the role of District Officers in collecting fines for non-compliance, and the appropriate authority for collection of fines?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court reiterated and emphasized the directions given in Aureliano Fernandes v. State of Goa & Ors. [CITATION] regarding the implementation of the POSH Act.
• The Supreme Court interpreted the word “may” in Section 5 of the POSH Act to mean “must” or “shall” in the context of the statute, relying on State of Uttar Pradesh v. Jogendra Singh [CITATION].
• The Supreme Court explained and interpreted the provisions of the POSH Act, 2013, and the POSH Rules, 2013, to highlight the obligations of various authorities and the gaps in implementation.
• The Supreme Court cited Article 32 of the Constitution of India as the basis for its jurisdiction to hear the writ petition and issue directions.
• The Supreme Court cited the ILO report to show that women find it easier to approach local NGOs in the context of sexual harassment complaints.
• The Supreme Court cited the NHRC report to highlight the limitation of the Act due to lack of budget to pay the concerned officers and conduct events for awareness and training.
• The Supreme Court directed the sharing of information from the Government of India’s Handbook on Sexual Harassment of Women at Workplace (2015) with District Officers, LCs, Nodal Officers, and employers.

What weighed in the mind of the Court?

The Supreme Court’s reasoning was primarily driven by the need to ensure the effective implementation of the POSH Act, which is a crucial piece of legislation aimed at protecting women from sexual harassment at the workplace. The court emphasized the following points:

• Importance of the POSH Act: The Court recognized the Act as a comprehensive code for prevention, punishment, and redressal of sexual harassment complaints. It noted that the Act goes beyond the Vishaka Guidelines by extending the scope of remedy to a wider range of employees and employers.
• Pivotal Role of the District Officer: The Court emphasized that the District Officer is the most important functionary in the system, responsible for coordination and accountability relating to the POSH Act.
• Need for Uniform Implementation: The Court observed a lack of uniformity in the implementation of the Act across various states, with many states not adhering to the requirements of notifying District Officers, constituting LCs, and appointing Nodal Officers.
• Operationalizing the Act for the Unorganized Sector: The Court highlighted the importance of Local Committees (LCs) in making remedies accessible to the unorganized sector, where the employer might not be easily identifiable.
• Gaps in Implementation: The Court noted that many states had tried to fit the institutional requirements of the Act within their existing bureaucratic frameworks, which resulted in ineffective implementation.
• Interpretation of “May” as “Must”: The Court, relying on previous judgments, interpreted the word “may” in Section 5 of the Act as “must” or “shall,” emphasizing the mandatory nature of appointing District Officers.
• Need for a Functional Redressal Framework: The Court emphasized that awareness campaigns alone are not sufficient; a functional redressal framework is crucial for the effective implementation of the Act.
• Transparency and Accountability: The Court stressed the importance of transparency and accountability in the implementation process, suggesting that the Central and State Governments may consider making statistics public.
• Financial Resources: The Court directed the Union and State/UT Governments to allocate financial resources for developing educational materials and conducting awareness programs, recognizing the need for adequate resources for effective implementation.

Final Order

The Supreme Court issued the following directions:

1. Appointment of District Officers: All States/UTs are directed to appoint District Officers in each district within four weeks from the date of the judgment.
2. Constitution of Local Committees (LCs): The District Officers are directed to constitute LCs in each district within six weeks from the date of the judgment.
3. Appointment of Nodal Officers: The District Officers are directed to appoint Nodal Officers in every block, taluka, tehsil, ward, or municipality within six weeks from the date of the judgment.
4. Constitution of Internal Complaints Committees (ICCs): The directions given in Aureliano Fernandes v. State of Goa & Ors. regarding the constitution of ICCs in all workplaces are reiterated.
5. Collection of Annual Compliance Reports: The District Officers are directed to collect reports from ICCs/employers and LCs and submit a brief report to the State government.
6. Publication of Annual Compliance Reports: The Central and State Governments may consider making statistics public for transparency and good governance.
7. Publicizing the Act and Rules: The Union and State/UT Governments are directed to allocate financial resources for developing educational materials and conducting awareness programs.
8. Display of Important Provisions at Workplaces: The duty of each employer to display the gist of important provisions at all working places is reiterated.
9. Clarification of Roles: The Union Government is directed to consider amending the Rules to clarify the role of districts in collecting annual compliance reports, collecting fines for non-compliance, and identifying the appropriate authority for collecting fines.
10. Sharing of Handbook: The Government of India’s Handbook on Sexual Harassment of Women at Workplace (2015) should be shared with District Officers, LCs, Nodal Officers, and employers.

Impact

The judgment has several significant impacts:

• Immediate Impact:
  • Increased Compliance: The strict timelines set by the Court for the appointment of District Officers, constitution of LCs, and appointment of Nodal Officers have pushed States and UTs to take immediate action.
  • Enhanced Awareness: The direction to allocate financial resources for awareness programs will lead to increased public awareness about the POSH Act and its provisions.
  • Improved Reporting: The direction to collect annual compliance reports will improve the monitoring and evaluation of the Act’s implementation.
• Long-Term Impact:
  • Effective Redressal Mechanism: The judgment will lead to the establishment of a more effective redressal mechanism for sexual harassment complaints at the workplace, especially in the unorganized sector.
  • Reduced Incidents of Sexual Harassment: Increased awareness and a functional redressal mechanism will likely lead to a reduction in incidents of sexual harassment at the workplace.
  • Empowerment of Women: The judgment empowers women by providing them with a clear legal framework to address sexual harassment at the workplace.
  • Uniform Implementation: The judgment will ensure that the POSH Act is implemented uniformly across the country, eliminating inconsistencies and gaps.
  • Accountability: The judgment enhances accountability of employers and government authorities in ensuring compliance with the POSH Act.

Critical Analysis

Strengths:

• Clear and Specific Directions: The Court provided clear and specific directions with strict timelines, ensuring that the concerned authorities take immediate action.
• Emphasis on Mandatory Compliance: The Court’s interpretation of “may” as “must” in Section 5 of the Act emphasized the mandatory nature of the obligations under the POSH Act.
• Focus on Unorganized Sector: The Court’s emphasis on the role of LCs in making remedies accessible to the unorganized sector is crucial, as this sector is often overlooked.
• Holistic Approach: The Court addressed various aspects of implementation, including awareness, reporting, and redressal mechanisms.
• Accountability: The judgment enhances accountability of employers and government authorities in ensuring compliance with the POSH Act.

Weaknesses:

• Lack of Specifics on Enforcement: While the Court issued clear directions, it did not provide specific mechanisms for enforcement, leaving room for potential delays and non-compliance.
• Financial Implications: The judgment did not address the financial implications of implementing the directions, such as the cost of awareness programs and the payment of allowances to the members of the LCs.
• Potential for Bureaucratic Hurdles: The implementation of the directions could face bureaucratic hurdles, especially in states where the existing bureaucratic structures are not conducive to the effective implementation of the Act.
• Dependence on Government Action: The effectiveness of the judgment depends heavily on the willingness and capacity of the government authorities to implement the directions.

Areas for Improvement:

• Enforcement Mechanism: The Court could have provided more specific mechanisms for enforcement, such as setting up a monitoring committee or appointing a nodal agency to oversee the implementation.
• Financial Support: The Court could have directed the Union Government to provide financial support to the States/UTs for the implementation of the Act.
• Training and Capacity Building: The Court could have emphasized the need for training and capacity building of the District Officers, members of LCs, and Nodal Officers.
• Public Awareness: The Court could have directed the government to launch a comprehensive public awareness campaign, including the use of different media platforms.

Conclusion

The Supreme Court’s judgment in Initiatives for Inclusion Foundation vs. Union of India is a landmark decision that underscores the importance of effective implementation of the POSH Act. The Court’s firm stance on the mandatory nature of the Act’s provisions and its clear directions to the Union and State/UT governments have set the stage for a more robust and uniform implementation of the Act across the country. While the judgment has its strengths, there are areas where improvements can be made, particularly in terms of enforcement mechanisms and financial support. However, the judgment is a significant step towards ensuring a safe and harassment-free workplace for women in India. The long-term impact of the judgment will depend on the commitment of the government authorities to implement the directions and the active participation of all stakeholders in promoting a culture of respect and equality at the workplace.

Flowchart of the Process

Ratio Table

The following table represents the ratio of ICCs to LCs and the number of District Officers appointed. Please note that the data is hypothetical and for illustrative purposes only.