Supreme Court: With the intent to fulfil the promise that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [PoSH Act] holds out to working women all over the country, the bench of AS Bopanna and Hima Kohli*, JJ has issued extensive directions to ensure the implementation of the law after observing that,
“However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless and until there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors.”
Noticing that the working of the PoSH Act is centred on the constitution of the Internal Complaints Committees(ICCs) by every employer at the workplace and constitution of Local Committees(LCs) and the Internal Committees(ICs) by the appropriate Government, as contemplated in Chapters II and III, respectively of the PoSH Act, the Court observed that an improperly constituted ICC/LC/IC, would be an impediment in conducting an inquiry into a complaint of sexual harassment at the workplace, as envisaged under the Statute and the Rules. It will be equally counterproductive to have an ill prepared Committee conduct a half-baked inquiry that can lead to serious consequences, namely, imposition of major penalties on the delinquent employee, to the point of termination of service.
Even though the PoSH Act was enacted in 2013, there are serious lapses in the enforcement of the Act even after such a long passage of time. The Court took note of the report of a National daily newspaper that has conducted and published a survey of 30 national sports federations in the country and reported that 16 out of them have not constituted an ICC till date. Where the ICC have been found to be in place, they do not have the stipulated number of members or lack the mandatory external member.
Remarking on the sorry state of affairs that reflect poorly on all the State functionaries, public authorities, private undertakings, organizations and institutions that are duty bound to implement the PoSH Act in letter and spirit, the Court said that,
“If the working environment continues to remain hostile, insensitive and unresponsive to the needs of women employees, then the Act will remain an empty formality. If the authorities/managements/employers cannot assure them a safe and secure work place, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt. It is, therefore, time for the Union Government and the State Governments to take affirmative action and make sure that the altruistic object behind enacting the PoSH Act is achieved in real terms.”
The Court attributed the reluctance on the part of victims to report the misconduct to, (i) uncertainty about who to approach under the Act for redressal of their grievance; and (ii) lack of confidence in the process and its outcome.
The Court observed,
“Being a victim of such a deplorable act not only dents the selfesteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many of them even drop out from their job.”
The Court, hence, stressed that this social malady needs urgent amelioration through robust and efficient implementation of the Act and issued the following directions,
(i) The Union of India, all State Governments and Union Territories are directed to undertake a timebound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs and that the composition of the said Committees are strictly in terms of the provisions of the PoSH Act.
(ii) It shall be ensured that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies are made readily available on the website of the concerned Authority/Functionary/ Organisation/Institution/Body, as the case may be. The information furnished shall also be updated from time to time.
(iii) A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes.
(iv) Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be 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 submitted.
(v) The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women's groups about the provisions of the Act, the Rules and relevant regulations.
(vi) The National Legal Services Authority(NALSA) and the State Legal Services Authorities(SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar.
(vii) The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules.
(viii) It shall be the responsibility of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued.
(ix) The Registry of the Supreme Court of India shall transmit a copy of the judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transmit a copy of this judgment to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implementing the directions issued. The Chairperson, Bar Council of India and the Apex Bodies shall transmit a copy of the judgment to all the State Bar Councils and the State Level Councils, as the case may be.
(x) Member-Secretary, NALSA is requested to transmit a copy of the judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of the judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States.
The Court has directed the Union of India and all States/UTs to file their affidavits within eight weeks for reporting compliances.
[Aureliano Fernandes v. State of Goa, 2023 SCC OnLine SC 621, decided on 12-05-2023]
*Judgment Authored by Justice Hima Kohli
Know Thy Judge | Justice Hima Kohli-An Advocate for Women’s Rights and Empowerment
Advocates who appeared in this case :
For Appellant: Senior Advocate Bishwajeet Bhattacharya
For Respondents 2 & 3: Advocate Ruchira Gupta