Brief Background: A writ petition was filed under Article 32 of Indian Constitution before the Supreme Court by an organization named Initiatives for Inclusion Foundation seeking appropriate orders to direct the Union Government and State/UT Governments (henceforth “Respondent-State”) to take steps for implementation of provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“POSH Act”) along with its Rules, 2013. The Apex Court pronounced the landmark judgment Initiatives for Inclusion Foundation & Anr. v. Union of India & Ors [Writ Petition (Civil) No. 1224 Of 2017] on 19th October 2023 passing directions for implementation of the POSH Law.
The Petitioner moved the Supreme Court (“SC”) seeking issuance of appropriate orders directing the Respondent-State to:
- Implement the POSH Act and POSH Rules without further delay
- Notify and appoint District Officers (“DO”) (Section 5 of the Act)
- Direct the States/ UTs to constitute Local Complaints Committee (“LC”) in all districts (Section 6 &7 of the Act)
- Direct the States/ UTs to appoint Nodal Officers (Section 6 of the Act)
- Direct the States/ UTs to constitute Internal Complaints Committee (“IC”) (Section 4 of the Act) in all ‘workplaces’ [as defined in Section 2(o)]
- Direct the States/ UTs to ensure reporting and collection of Annual Compliance Reports from all workplaces by the DOs (Section 21 and 22 of the Act)
- Direct the States/ UTs to ensure proper documentation, consolidation and publication of the Annual Compliance Reports collected by the DOs.
- Direct the States/ UTs to give due publicity to the Act and Rules, organize activities and advance the understanding of the Act in all Districts- block, talukas, tehsil, tribal area, ward, municipality, etc.
- Direct the States/ UTs to ensure the display of the gist of important provisions of the Act at all working places.
- Direct the State to frame Rules and/or Directions as per Section 29 of the Act to clarify the role of Districts and DOs in collecting annual reports and collecting fines for non-compliance respectively.
Important Observations of the Court:
- The Apex Court cited and reiterated its own judgment of Aureliano Fernandes v. State of Goa & Ors. which also discussed the implementation issues of the POSH Act.
- The Court observed that the POSH Act is a comprehensive code, with respect to prevention, punishment and redressal of sexual harassment complaints. The Act covers a wider scope of ‘employee’ and ‘employer’ than any other legislation. Moreover, the Act has been structured with a tiered model for the functioning and monitoring of its implementation.
- While attempting to clarify the role of the DO as claimed by the Petitioner, the Court observed “What is wholly apparent from this outline of the scheme of the Act, is that the role of the District Officer, is pivotal; they are responsible for numerous aspects in the implementation of the Act. It is where the buck stops, so to say, in terms of coordination and accountability relating to the POSH Act.” While the language used in Section 5 is ‘may’, the context of the makes it quite clear that the DO, is the most important functionary in the system responsible for keeping the redressal and monitoring framework intact, and smoothly running. The Apex Court declared that treating Section 5 are mere directory would defeat the purpose and efficacy of the POSH Act.
- The Court also observed a lacunae and lack of uniformity in the Implementation of the POSH Act across different States based on the replies and affidavits received by them after issuance of notice. The Hon’ble Court noticed that numerous states tried to force-fit the institutional requirements of the Act, within their existing bureaucratic frameworks. The post of the District Officer was not notified in many states, no proper documentation existed on the constitution of LCs and only a handful of states had provided details of ‘Nodal Officers’. Moreover, all States except three had failed to provide consolidated annual reports.
- The Supreme Court observed that the awareness, publicity, and training as required by Section 24 of the Act is dependent on the Union Government to disburse funds to the States, which using an agency, can transfer the same to the district officer. The language of Section 24 which states that “The appropriate Government may, subject to the availability of financial and other resources, —……” acts as a major limitation of the Act. Without a delineated budget to pay the concerned officers and conduct events for awareness and training, various LCs are rendered infructuous or remain vacant. In this regard, the Hon’ble Court observed the requirement of setting the budget for the implementation of this Act, at each district level, and thereafter state-level, to ascertain disbursal of grants from the Union Government.
Directions of the Supreme Court:
- The Women and Child Development Ministry of every State/UT should identify a ‘nodal person’ in the Department to oversee and aid in coordination of the POSH Act. This person would also be responsible for coordination with the Union Government.
- The Court directed each State/UT Government to submit a consolidated report of its compliance with the below directions to the Union Government within 8 weeks. The Union Government is directed to consolidate the various reports, identify any lapses in the compliance by the State and try to remedy it within 12 weeks from the date of this judgment.
- The Principal Secretary of the State/UT Ministry of Women and Child must personally ensure appointment of a district officer in each district within their territorial jurisdiction within 4 weeks from the date of this judgment.
- The Court recognized the need for amendment of POSH Rules and that the State must address to operationalize Section 26 of the Act. The State must recognize a reporting authority, and/or a fine collecting authority. The Union Government may also consider amending the Rules to identify one Department (preferably the Women and Child Department) and creating a post of a ‘nodal person’ in the said Department to be responsible for all coordination required for implementation of the Act to ensure better uniformity in implementation across the country.
- The Court directed the District Officers and LCs should be mandatorily trained regarding their responsibilities in order to be sensitized to the nature of sexual harassment, the gendered interactions that occur in the workspace, etc. The State Governments are directed to organize periodic, and regular training sessions at the district level for the DO , members of the LC, and nodal officers.
- The State Government are directed to set out resources to develop educational, communication and training material for spreading awareness of the Act. The appropriate government or district officers must also undertake effort to spread awareness on the existence of LCs and make them approachable for the unorganized sector.
The directions passed by this Court in Aureliano Fernandes v. State of Goa & Ors. cover the directions to authorities, management and employers to familiarize the members of the ICs and LCs of their duties and detailed step-wise manner in which an enquiry ought to be conducted on receiving a complaint of sexual harassment. The modules prepared by NALSA could be used in this regard. The Court directed that a targeted effort be made to share the Handbook for implementation of POSH Act prepared by the Ministry of Women and Child Development, Government of India with each DO, who may in turn disseminate it to their respective LCs, the nodal officers and employers who constitute their own ICs.
- The State/UT Governments are directed to create a Standard Operating Procedure (SOP) including the procedure, and timelines for this process, to comply with Section 23 of the Act, i.e., monitoring implementation and maintaining data.
- The directions that were made applicable to public and private institutions through the landmark Aureliano Fernandes v. State of Goa & Ors judgment is hereby made applicable to hospitals, nursing homes, sports institutes, stadiums, sports complex, or competition or games venues to constitute ICs. The DO must be supplied a list of establishments (compiled by the relevant departments of the State/UT Government) that fall within the scope of Section 2(o). The Court held that the consequent direction to all private sector workplaces under Section 2(o)(ii) can be passed once the DO is able to discern an exhaustive list of entities.
The Court’s observations and directions shed light on the challenges and discrepancies in the implementation of the POSH Act across different States and Union Territories. These directives aim to bring uniformity in the implementation of the POSH Act and enhance awareness, publicity, and training efforts and make it more accessible for the unorganized sector.
-By Tusharika Vig