Beyond Binaries: A Deep Dive into Tackling Sexual Harassment Through POSH Policies

Session Report
Aasthaba Jadeja

The Gender Impact Studies Center (GISC) at IMPRI Impact and Policy Research Institute, New Delhi conducted a four week Online National Spring School Program on ‘Ending Gender-based Violence – Cohort 2: Awareness of Policies & Governance’ from March 5th, 2024 to March 27th 2024.

On day 7, Ms Nandini Sarkar delivered a presentation on Beyond Binaries: A Deep Dive into Tackling Sexual Harassment Through POSH Policies.

Ms. Sarkar, a recognized expert in POSH (Prevention of Sexual Harassment) compliance, is drawing on her extensive experience as an external advisor to various corporations. Her presentation highlights a critical intervention by her organization, C-Quel, in ensuring effective implementation of the POSH Act.

Following the deeply disturbing Nirbhaya incident of 2012, the POSH Act was enacted in 2013. However, Ms. Sarkar observed a concerning lack of adoption by companies in the subsequent years. Their efforts culminated in a successful meeting with a joint secretary at the Prime Minister’s Office (PMO). During this meeting, C-Quel presented a well-defined solution – linking POSH compliance to a company’s annual accounts. They emphasized the importance of mandatory reporting to ensure accountability.

The PMO recognized the merit of their suggestion and facilitated a subsequent meeting with the then Women and Child Development Minister, Maneka Gandhi. C-Quel reiterated their proposal, advocating for mandatory POSH compliance reporting.

Their perseverance proved instrumental. In 2018, the government implemented a significant change, making POSH compliance mandatory and requiring companies to report on it within their annual reports. Ms. Sarkar’s presentation underscores the power of advocacy and initiative in driving positive legislative change.

Current Statistics

Available data paints a disturbing picture of increasing violence against women in India. A recent report by the National Crime Records Bureau (NCRB) shows a sharp rise in crimes against women, jumping from 56.5% to 64.5% of incidents per 1 lakh population between 2020 and 2021. This trend is further reflected in the surge of complaints received by the National Commission for Women (NCW) in 2022, reaching a record high of nearly 31,000 since 2014. Considering these statistics alongside the rise in POSH cases, it’s clear that crimes against women, particularly sexual offenses, are on an alarming upward trend. Urgent action is imperative to address this critical issue.

Case Studies

Ms. Sarkar’s presentation delves into the disturbing reality of sexual harassment persisting as a weapon of the powerful. She highlights two cases that expose this pattern.

The first case centers around an MLA in SandeshKhali who allegedly abused his authority for years. This MLA is accused of not only using his power to seize land but also of sexually assaulting women for an extended period. Despite public testimonies from the victims, the state government, remarkably led by a female chief minister, reportedly turned a blind eye to these allegations. This inaction by a government led by someone who could be seen as an ally for women underscores the complex and entrenched nature of the problem.

The second example involves Olympian wrestler Sakshi Malik’s forced retirement. Ms. Sarkar points to the Indian government’s failure to take action against the WFI chief, Brijbhushan, who faced accusations of sexual harassment from female wrestlers. This incident, where a national sporting hero felt compelled to abandon her career due to a lack of protection from a superior, reflects the pervasive reach of sexual harassment and the potential consequences for even highly accomplished women.

These cases, combined with Ms. Sarkar’s personal experience of biased Internal Complaints Committees (ICCs) within the public sector, present a sobering view. They suggest that powerful figures, including those in government and influential positions, continue to use sexual harassment as a tool for control. Even high-profile women, like Ms. Malik, are not immune, highlighting the urgent need for stronger mechanisms and a cultural shift to hold perpetrators accountable.

Historical Context

Prior to 1997, the legal framework lacked a definition of sexual harassment. The only recourse for victims was through obscenity laws, leaving them dependent on local police stations to register complaints.

The horrific Nirbhaya incident in 2014 served as a catalyst for legislative change. Two key amendments emerged:

  1. The POSH Act (2013): This civil law mandates employers in all sectors (private, public, government, educational institutions) to establish preventive, prohibitive, and redressal mechanisms for addressing sexual harassment at the workplace.
  2. Criminal Law Amendment Act (2013): This act introduced Section 354A into the Indian Penal Code (IPC), recognizing sexual harassment as a criminal offense punishable by fines and imprisonment. Additionally, new sections addressed stalking (online and physical) and other forms of assault against women.

Further advancements came with amendments to the Companies Act and SEBI Listing Obligations and Disclosure Requirements (LODR). These regulations require companies to not only report sexual harassment cases but also disclose details about their Internal Complaints Committees (ICCs), policies, and case disposal procedures.

Ms. Sarkar highlights positive developments in POSH Act implementation.  The governments of Haryana and Telangana are mandating companies to upload details of their POSH policy updates, training programs conducted, and actions taken against perpetrators, alongside their annual POSH reports. This increased transparency demonstrates a willingness by some authorities to listen to concerns and address them.

India’s largest ESG compliant companies on the BSE saw a rise of 101% pending POSH complaints in the year ending March 2023, indicating a huge backlog of complaints & companies inability to resolve such cases in a timely manner

Source: Forbes India

The BSE 100 Index, representing over 65% of India’s total market capitalization, reflects this issue. At the end of the 2023 fiscal year, it showed a concerning rise in pending complaints (205 out of 1,186) compared to the previous year (112 out of 814).

The human cost of delayed justice is immense. One of the tragic consequences is young women resorting to suicide due to the despair caused by a system that fails to deliver swift and effective resolution to their complaints.

Gaps and Challenges in the implementation of the POSH Act

Ms. Sarkar’s presentation sheds light on the complexities of enforcing the POSH Act. A significant challenge arises when powerful individuals are accused. Companies, often prioritizing business continuity, may be reluctant to take action against these influential figures, potentially hindering the pursuit of justice for victims. This tendency is particularly evident in the case of smaller companies, which may resort to pressuring complainants into accepting settlements to avoid lengthy proceedings. Even larger corporations, while conducting inquiries, may exhibit hesitancy in punishing perpetrators due to their focus on business results and the potential for reputational damage. These factors contribute to a backlog of unresolved complaints and delayed investigations.

Compounding these challenges are inadequately prepared Internal Complaints Committees (ICCs). Some companies view annual POSH training as an unnecessary expense, resulting in ICCs that lack the necessary skills and knowledge to effectively handle complaints. This issue extends even to multinational corporations (MNCs) that may cite budgetary constraints for ICC member training. Consequently, ICCs often struggle due to a lack of expertise, leading to delays in resolving cases.

Time constraints further impede the efficient operation of ICCs. Many committees are comprised of senior employees with demanding workloads. When complaints are filed, these time-pressed individuals may not dedicate the requisite urgency to ensuring a swift and thorough investigation. This lack of focus can have a detrimental impact on the overall effectiveness of the POSH Act.

Judicial Commitment to Due Process

Court judgments, such as the Supreme Court’s landmark decision in the Aureliano Case, demonstrate a strong emphasis on upholding due process rights. The Court has underscored the critical role of properly constituted Internal Complaints Committees (ICCs) and adherence to fair inquiry procedures. Furthermore, the Supreme Court has acknowledged existing shortcomings in POSH Act enforcement and called for stricter implementation measures across the board.

Proactive Government Initiatives

This judicial commitment is complemented by proactive initiatives from the government. The Supreme Court itself played a vital role by directing government ministries and state/union territory chief secretaries to ensure compliance with its POSH directives. Additionally, several state governments have taken commendable steps. For instance, Kerala launched a dedicated POSH Act compliance portal in January 2023. This portal mandates employer registration and requires them to upload details of their ICCs and annual reports. Similarly, Haryana, through a December 2023 notification, requires NGOs and private companies to submit additional documents demonstrating their adherence to the POSH Act.

High Court Order Strengthens Employer Obligations

A crucial order from the Odisha High Court further reinforces employer responsibilities under the POSH Act. Section 19(B) of the Act mandates that employers prominently display information regarding sexual harassment penalties and details of the constituted ICC within the workplace. This ensures clear communication of these critical matters and promotes awareness among employees.

Suo Moto Recognition

Ms. Sarkar emphasizes the growing importance of “suo moto recognition” in POSH cases. This legal principle empowers authorities to take cognizance of a situation even without a formal complaint.

She highlights a concerning trend – a rise in delayed reporting, even among educated women, due to fear of retaliation.  Suo moto recognition addresses this by allowing employers and POSH committees to initiate inquiries based on credible information, even if a victim hesitates to file a formal complaint. This approach aligns with the core principles of both the POSH Act and criminal law – ensuring justice prevails even when fear or intimidation hinders formal reporting.

Ms Nandini Sarkar is Director of Business Operations, C-Quel Management Services Pvt Ltd.

Read more at IMPRI:

Building Partnerships: Collaborative Approaches for a Coordinated Response to Gender Based Violence

Harassment Against Women: A Pervasive and Multidimensional Issue

Acknowledgment: Aasthaba Jadeja is a Visiting Researcher at IMPRI.