Supreme Court Guidelines for POSH implementation

Introduction

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“POSH Act”) was put into effect with the objective of safeguarding women against workplace harassment. Recent events have revealed significant shortcomings in its implementation. The Supreme Court in the case of Aureliano Fernandes v. the State of Goa, has expressed apprehension regarding the status of the POSH Act’s implementation. Consequently, the Court has issued a set of guidelines to improve its implementation and efficiency.

Factual Background

An internal committee constituted by the University of Goa (“University”) initiated an investigation against Aureliano Fernandes (“Appellant”) after receiving several complaints from female students alleging sexual harassment. Passing an ex-parte order, due to Appellant’s absence during the investigation process, the internal committee decided that his action constituted grave misconduct and therefore recommended the university to terminate his employment. The appellant was subsequently dismissed from his position due to the seriousness of the charges levelled against him and was barred from further employment at the university.

The Appellant challenged the order in the Bombay High Court (Goa Bench) ("the High Court"). The High Court observed that the internal Committee had given sufficient opportunities to the Appellant yet he did not appear before it. And that the internal committee cannot be accused of ex-parte proceedings against him. The applicant questioned the internal committee’s composition since it included people lower than him in the department. In addition, the claim that the investigation was conducted in excessive haste, without giving the applicant a fair and reasonable opportunity to defend himself, was rejected. Therefore, the High Court did not find the application justified and rejected it, stating that the principles of natural law and service rules were not violated in the matter.

However, the Supreme Court disagreed. The SC quashed and set aside the judgment passed by the High Court and the matter was sent back to the internal committee for conduct of a fresh inquiry, keeping the principles of natural justice in mind. The apex court believed that since the Appellant was absent due to medical grounds, the rushed inquiry proceedings were against the principles of natural justice.

It is not enough to boast a POSH Act, the framework for redressal must, in fact, exist.

Directions issued by the Supreme Court

During the Aureliano Fernandes case, the Supreme Court noticed serious lapses in the enforcement of the POSH Act even after such a long time. The Supreme Court observed that however salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless there is strict adherence to the enforcement regime and a proactive approach by all State and non-State actors. Accordingly, to “fulfil the promise that the POSH Act holds out to working women all over the country”, the Supreme Court inter alia issued the following directions:

The Supreme Court found serious deficiencies in the implementation of the POSH Law through the Aureliano Fernandes case. The Supreme Court noticed that this legislation, although useful, can never ensure women the dignity and respect they deserve in the workplace, unless the implementation system is strictly followed and a proactive approach is adopted by all governmental and non-governmental actors. Thus, the Supreme Court, to “fulfil the promise that the POSH Act holds out to working women all over the country”, announced the following instructions:

(a)    The Union of India, State Governments, and Union Territories must verify with a time bound exercise whether all the concerned ministries, departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc., have constituted ICs/LCs, whilst strictly adhering to the requirements of constitution of IC/LC under the SH Act.

(b)    Ensure that necessary information regarding the constitution and composition of LCs/ ICs, contact information of the designated person(s), the procedure prescribed for submitting an online complaint, as well as the relevant rules, regulations and internal policies are readily available on the website of the concerned authority/ functionary/ organisation/ institution/ body. The information furnished shall also be updated from time to time.

(c)    All the statutory bodies of professionals at the apex level and the state level (including those regulating doctors, lawyers, and other professionals), universities, colleges, other educational institutions, and Government/private hospitals/nursing homes are required to carry out a similar exercise.

(d)    Immediate and effective steps to be taken by the authorities/ managements/ employers to familiarise members of the LCs/ ICs with their duties and the methods of inquiry conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the report is submitted.

(e)    The authorities/ management/ employers must regularly conduct orientation programmes, workshops, seminars, and awareness programmes to upskill members of LCs/ ICs and to educate women employees and women’s groups about the provisions of the POSH Act, the rules, and relevant regulations.

In the Initiatives for Inclusion Foundation v Union of India, the Supreme Court went a step ahead from the previous landmark judgement. Additional directions were issued to ensure effective implementation of the POSH Act, which are discussed below:

A.    Coordination between Union Government and State/UT Governments

i.    The Women and Child Development Ministry (WCD) should identify a ‘nodal person’ within the Department, to oversee and coordinate as required under the POSH Act, alongside coordinating with the Union Government on implementation of the POSH Act.

ii.    Each State/UT Government is to submit a compliance report to the Union Government. The Union Government must then consolidate the reports, identify any lapses in the compliances, try to remedy it, and finally detail the States’ compliance, and their action taken regarding the direction through a consolidated affidavit of compliance.

B.    Appointment of public authorities

iii.    The Principal Secretary of the WCD will appoint a district officer in each district.

iv.    Appointed district officers must in turn must constitute a LC and appoint nodal officers in every block, taluka, and tehsil in rural or tribal area and ward or municipality in the urban area.

v.    A circular with name of all district officers, their contact details and with a district wise chart of the various nodal officers, must be uploaded on the department’s website. The circular must include a compiled version of the Act, Rules, and simple charts/explainers on the basics of the Act.

C.    Amendments and gaps in Rules that State must fill.

vi.    The Union Government must consider amending the Rules and recognise a reporting authority, and/or a fine collecting authority.

vii.    The Union Government may also consider amending the Rules to identify one Department (preferably the WCD) and creating a ‘nodal person’ post within the Department who shall be responsible for the coordination necessary in the implementation of the Act, to bring consistency across the country.

D.    Training and capacity building.

viii.    The District Officers and LCs must complete the necessary training for their responsibilities. They must be sensitised to the gendered interactions that occur in the workspace, the nature of sexual harassment, and similar such ground realities. The State Governments must organise training sessions at the district level. Thy must be attended by the District Officer, members of the LC, and nodal officers.

E.    Larger efforts towards awareness.

ix.    In furtherance of Section 24, the Government, both State and Union, are hereby directed to set out the financial resources allocated to developing educational, communication and training material for spreading awareness of the provisions of this POSH Act to the public and formulate orientation and training programmes. This plan of action must form part of the compliance affidavit filed by each State.

x.    The District Officers, once nominated by the State are hereby directed to identify the non-governmental organisations working with women and their protection within the district and act pursuant to their duty for creation of awareness.

xi.    The appropriate government or district officers in question, must also undertake effort to spread awareness on the existence of LCs, and make them approachable for the unorganized sector – thus operationalizing the horizontal import of this Act.

xii.    The directions (iv) and (v) passed in Aureliano Fernandes case cover specifically the direction to authorities, management, and employers to familiarise the members of the ICCs and LCs of their duties and detailed stepwise manner in which an enquiry ought to be conducted on receiving a complaint of sexual harassment; conduct orientation programmes, workshops, seminars, awareness programmes, etc. and to educate women employees and women groups about the Act, Rules, and regulations are reiterated. The modules prepared by NALSA [as per direction (vi) in Aureliano Fernandes] to conduct workshops and organize awareness programmes to sensitise authorities, managements, employers could be used in this regard.

xiii.    The Handbook for implementation of POSH Act, which serves as a useful guide for anyone requiring it must be shared with each District Officer, who may in turn disseminate it to their respective LCs, the nodal officers, and employers who constitute their own ICCs.

F.    Annual Compliance Reports

xiv.    District Officers collect reports from the IC/employers and from the LC and prepare a brief report to share with the State government. The State/UT Governments is hereby directed to create a Standard Operating Procedure (SOP) including the procedure, and timelines for this process.

G.    Monitoring of ICs and compliance by employers

xv.    Efforts made must be in line with the scheme of the Act, and through the authorities so designated for the various roles.

xvi.    Directions are hereby made to hospitals, nursing homes, sports institutes, stadiums, among others to establish ICs, and report compliance as per the duties under this Act.

xvii.    The District Officer must be supplied a list of establishments to ensure that they are well versed with the provisions relating to employers, and their duties (including constitution of ICC) and are implementing them in letter and spirit. This will also enable collection of annual reports. The consequent direction to all private sector workplaces can be passed once the District Officer is able to discern an exhaustive list of entities.

Conclusion

As the Supreme Court merely reaffirmed existing legal provisions, private employers are advised to ensure compliance with the POSH Act.

These cases serve as a reminder that the enforcement of laws concerning workplace sexual harassment must prioritise fairness, ensuring that all parties involved are given a fair and reasonable opportunity to present their case. The judgments underscore the significance of diligently implementing and adhering to the provisions of the law to protect the rights and dignity of individuals in the workplace.

It is clear from the directions that the Court has largely focused on public institutions, universities, government authorities, etc., and has not made specific reference to private establishments. Nevertheless, greater scrutiny of even private establishments should be expected in the coming weeks and months, given that the provisions of the POSH Act apply equally to private establishments. Reputations also stand at risk for matters of non-compliance of POSH Act turn into heated topical issue. Many of the directions of the Supreme Court only reiterate the existing obligations under law, and private employers would accordingly be well advised to undertake a review of the compliances under the POSH Act (in relation to IC constitution, training IC members, sensitizing employees, conducting inquiries, etc.) and ensure corrective actions are taken wherever needed.