~ This post has been authored by the Editorial Team of The Writ Review.
Introduction
Even after a decade of passage, there are still a number of implementation gaps in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, also known as the PoSH Act, despite the fact that it went into effect on December 9, 2013. The objective of this blog is to shed light on some of the problems that have found to be preventing the POSH Act from being implemented as effectively as it could be. The goal of the PoSH Act, which expanded upon the Vishakha Guidelines, is to shield women against sexual harassment at work. The POSH Act’s phrasing still contains a lot of ambiguity, as demonstrated by the cases that have resulted from it over the past ten years, making its execution ineffectual. During the last three years, a number of problems have been contested at the High Courts under the POSH Act, which we attempt to address in this post.
The Problems:
The Calcutta High Court rendered a decision in Nutrition & Ors vs. Suddhasil Dey & Anr (2020) on the procedural requirements of an inquiry, both under the POSH Act and a disciplinary inquiry. This decision addressed the right to cross-examination and natural justice. The Court determined that nothing in the 2013 Act or 2013 Rules prohibits a respondent from cross-examining a complainant who has filed a complaint alleging sexual harassment at work. The 2013 Act and the 2013 Rules must be interpreted to include the right of cross-examination. It was decided that the right to cross-examination is a fundamental right to a fair trial in all cases involving investigations, trials, and accusations against delinquents or accused parties.
The delinquent or accused may legitimately file a grievance if they believe they were denied a reasonable opportunity to defend themselves during an inquiry or trial. This is because the denial of the opportunity to cross-examination is crucial when it comes to proceedings that could potentially deprive the delinquent or accused of their valuable right under Article 21 of the Constitution. The ruling stated that in order to fully protect a respondent under the 2013 Act, courts must be vigilant in preventing an employer from failing, omitting, or neglecting to provide procedural safeguards. This protection must be given while maintaining the complainant’s safety and security and should not be compromised.
Here’s is another problem. Can same-sex harassment be covered by the law? Even though the law defines an aggrieved party and a harasser clearly, there are still some unanswered questions, like is it possible for the harasser to be the same gender as the victim? The Calcutta High Court ruled in Dr. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College and Ors., 2020 that the definition of “sexual harassment” in Section 2(n) cannot be interpreted in a static manner but rather must be considered in the context of society.
Since sexual harassment affects a person’s dignity in relation to their gender and sexual orientation, it does not preclude any member of the same gender from violating another person’s modesty or dignity as defined by the 2013 Act. This means that a person of any gender may experience sexual harassment as defined by Section 2(n), regardless of the gender or sexual orientation of the act’s perpetrator. Therefore, when Section 3(2) is examined, it becomes clear that the acts covered by this section can be committed by members of any gender, even inter se, and thus includes the recognition of sexual harassment between people of the same gender.
Apart from this, another question worth noting is whether the film industry constitutes as a workplace? Despite the PoSH Act’s definition of a workplace for legal purposes, there is still some dispute over which workplaces—like film production units—qualify. The Kerala High Court held in Women in Cinema Collective v. State of Kerala (2022) that a production unit is a place of employment for a motion picture and, therefore, an ICC must be established for a production unit with more than ten members. The court also issued other directives requiring the government to establish a Local Complaints committee in order to handle complaints.
Conclusion:
So, as we can see, over the course of the last few years, litigation has helped to clarify a number of aspects of the PoSH Act. As the Supreme Court itself noted in a ruling from May 2023, the PoSH Act’s implementation is still worrisomely inconsistent, which limits its potential effectiveness. Although the PoSH Act has received a lot of media attention recently and these rulings are encouraging, more work needs to be done to put the law into practice and safeguard women’s physical and mental health at work.