Reflections on Proposed Amendments to the POSH Act

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, otherwise known as the POSH Act, was enacted in 2013. This has been India’s first piece of legislation on sexual harassment at the workplace. The POSH Act defines sexual harassment and directs employers to work towards preventing and redressing sexual harassment at the workplace. Redressal of complaints of sexual harassment is through the establishment of committees, termed Internal Committees (ICs). The Act also constitutes Local Committees (LCs), which are district-level committees which may be approached by women in the unorganised sector or by women whose employers do not have an IC.   

The last few years have seen various private member bills introduced in the Lok Sabha and Rajya Sabha, that seek to amend various parts of the POSH Act. These bills highlight important issues with the Act in its current form, however the changes are suggested could benefit from a deeper and more holistic engagement with the realities of and research on sexual harassment.  

The POSH Act permits only women to file complaints of sexual harassment. This gender-specificity of complainants was upheld by the Supreme Court in Binu Tamta & Anr. vs. High Court of Delhi & Ors in 2023. This means that men and transgender persons may not make complaints under the Act. Two of the proposed amendments (those introduced by Shri Lavu Sri Krishna Devarayulu and Shri Md. Nadimul Haque) addresses this point by extending the ability to make complaints from ‘women’ to ‘persons’. The latter bill also requires that if the complainant is of a gender other than woman, the IC should include a representative of the same gender. This would allow men and transpersons to make complaints of sexual harassment within their workplaces. While this is a significant step - it is important for anyone facing sexual violence to have recourse in the law - it does not appear to have taken into consideration the complexities of the question of the gender neutrality of laws on sexual violence. Researchers have raised the concern of men filing cases of harassment against women who have made complaints against them. These issues need to be addressed in any gender-neutral law on sexual harassment. 

The bills introduced by Dr. Fauzia Khan and Dr. Sasmit Patra both seek to amend the time available to make complaints. The POSH Act allows for complaints to be made within three months of an incident, extendable to six months if the IC/LC finds a valid reason for the delay. The bill introduced by Dr. Khan states that the complaint should be made “within a reasonable period of time with regard to the facts and circumstances surrounding the making of such a complaint.” This replaces a specific time limit with a more imprecise formulation. It is unclear who is to determine what constitutes a reasonable period, and on what grounds that determination is to be made. The bill introduced by Dr. Patra, on the other hand, extends the period from three months to one year, on grounds that “in cases involving sexual harassment, women may be so traumatised as to render filing of the complaint impossible until such time they have recouped their strength.” This additional time is valuable. In many cases of harassment, women need time to both come to terms with the incident and decide to pursue a complaint. The latter decision is not made lightly, and additional time might reduce the pressure to file a complaint before one feels mentally prepared to do so.

Dr. Khan’s draft makes another interesting change, this time to section 14 of the Act, which pertains to false or malicious complaints. Under the Act, if false complaints are found to have been filed or false evidence provided, the IC/LC may recommend to the concerned institution that action be taken against the complainant. The draft replaces the word ‘recommend’ with the word ‘direct.’ This language suggests that the decisions of the IC/LC would be binding on the institution. This is an interesting change to make, especially since the recommendations of the committee in the cases where complaints are upheld, are not binding on institutions; the amendment too does not make such recommendations binding. This raises a question – if the decisions of the committee are to be binding upon institutions in the event of malicious complaints, surely they should be binding also in all complaints that are upheld. Introducing this balance would reinforce the idea that sexual harassment is taken seriously by committees and institutions alike.

One concern is that the amendments to the POSH Act are being introduced in a situation where there is limited data on the implementation of the Act. Research has pointed out the lack of data around the numbers of and nature of complaints made, their resolution, whether the committees’ recommendations were acted upon by employers, and so on. There is also limited data on sexual harassment itself, for example on same-sex harassment, or on cases of sexual harassment that where complaints are not filed. Perhaps the concerned authorities could also consider broadening the scope of the details that companies must report (for example, the numbers of cases resolved through inquiries and through conciliation), and on making more data available in the public domain (for example, it is currently difficult to find the annual reports of Local Committees). This would allow for better research on the issue, and more effective implementation of the Act.