Note on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

This research note discusses the historical background leading to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), the Vishaka Guidelines, important judicial precedents, and employer-related compliance obligations under the Act.

The note also highlights the transition from reliance on provisions under the Indian Penal Code to a dedicated statutory framework dealing with prevention, prohibition, and redressal of sexual harassment at workplaces.

Historical Background

Prior to the enactment of the POSH Act, 2013, India did not have a dedicated legislation addressing sexual harassment of women at workplace.

In such matters, reliance was generally placed upon provisions of the Indian Penal Code, 1860, including:

Section 354 IPC — assault or criminal force to woman with intent to outrage her modesty;
Section 509 IPC — word, gesture or act intended to insult the modesty of a woman.

These provisions were not specifically designed to address workplace sexual harassment and did not provide any preventive mechanism.

The absence of a dedicated framework resulted in under-reporting due to factors such as:

Lack of awareness;
Social stigma;
Absence of institutional mechanisms.

What Led to the Implementation of the POSH Act

The long title of the Act reads:

“An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.”

The POSH Act is substantially based on the guidelines laid down by the Supreme Court in the Vishaka judgment.

Background to the Vishaka Guidelines

Bhanwari Devi was associated with the Women’s Development Project run by the Rajasthan Government.

While attempting to prevent the child marriage of a nine-month-old infant, she was subsequently targeted by villagers and gang-raped by five men at her workplace.

The subsequent investigation suffered from several irregularities. The local police, authorities, and medical personnel failed to adequately support her, and the accused persons were initially acquitted.

Following the incident:

She and her family faced social boycott;
She lost her employment.

Several NGOs and women’s groups thereafter filed a Public Interest Litigation before the Supreme Court under the collective name “Vishaka”.

Vishaka v. State of Rajasthan

Citation: (1997) 6 SCC 241

The Supreme Court examined issues relating to:

Gender inequality;
Outraging the modesty of women;
Sexual harassment at workplace;
Violence against women.

The Court analysed violations of:

Article 14;
Article 15;
Article 19(1)(g);
Article 21 of the Constitution.

The Court observed that the prevailing situation violated the fundamental rights of women.

The Court also referred to:

Article 51 relating to international conventions;
Article 51A relating to fundamental duties.

As India lacked a specific legislation governing workplace sexual harassment, the Court relied upon international conventions, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to frame binding guidelines.

Vishaka Guidelines

The Supreme Court issued the following guidelines:

It is the duty of the employer to prevent or redress acts of sexual harassment.
Sexual harassment includes unwelcome sexually determined behaviour such as:
- Physical sexual contact;
- Sexual favours;
- Sexually coloured remarks;
- Pornographic content;
- Verbal or non-verbal conduct of sexual nature.
Sexual harassment policies at workplace must be informed, published, and circulated.
Where sexual harassment amounts to a specific offence under law, the employer should initiate appropriate legal action before competent authorities.
Appropriate complaint and redressal mechanisms should be established.
Other preventive and procedural safeguards were also prescribed.

The Vishaka Guidelines continued to operate as binding law until enactment of the POSH Act, 2013.

Prominent Judgments

1. Aureliano Fernandes v. State of Goa

Citation: (2024) 1 SCC 632 : MANU/SC/0572/2023

The Appellant, Mr. Aureliano Fernandes, a faculty member at Goa University, faced multiple complaints of sexual harassment from female students.

The Internal Committee (IC) conducted an inquiry ex parte due to repeated absences of the Appellant on medical grounds.

The IC found the Appellant guilty of grave misconduct and recommended termination. He was subsequently removed from service and disqualified from future employment at the University.

Issue

Whether the inquiry conducted by the Internal Committee complied with the principles of natural justice and procedural safeguards under the POSH Act.

Held

The Supreme Court held that the inquiry violated principles of natural justice as the Appellant was not provided reasonable opportunity to be heard.

The dismissal order was accordingly quashed.

The Supreme Court also issued important compliance directions:

Union, State, and UT Governments must verify constitution of Internal Committees (ICs) and Local Committees (LCs);
Details of ICs/LCs, complaint procedures, and policies must be published on websites;
Training and orientation programmes must be conducted for IC/LC members;
Employers should regularly conduct awareness and sensitisation workshops.

2. Apparel Export Promotion Council v. A.K. Chopra

Citation: (1999) 1 SCC 759 : MANU/SC/0014/1999

The Supreme Court adopted a broader interpretation of the term “molestation” and held that physical contact is not the sole indicator for determining sexual harassment.

The Court observed that the conduct of the respondent was contrary to decency and modesty and amounted to sexual harassment.

The Court further held that:

In departmental proceedings, disciplinary and appellate authorities are fact-finding authorities;
High Courts should not ordinarily interfere with findings or quantum of punishment.

Accordingly, the Supreme Court set aside the High Court judgment and restored the punishment of removal from service imposed by the disciplinary authority.

3. Medha Kotwal Lele & Ors. v. Union of India & Ors.

Citation: (2013) 1 SCC 297 : MANU/SC/0898/2012

A letter written by Medha Kotwal highlighted multiple cases indicating ineffective implementation of the Vishaka Guidelines.

The Supreme Court treated the letter as a writ petition and directed State Governments to file affidavits detailing implementation measures.

The Court found implementation across several States to be inadequate.

The Supreme Court therefore issued further directions to national institutions, including the Bar Council of India, to properly implement the Vishaka Guidelines.

The Court observed:

“The implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure environment for women at workplace.”

The Court also held that aggrieved persons may approach High Courts in cases of non-compliance or non-adherence to the Vishaka Guidelines.

Section 4 — Internal Complaints Committee

Employers having more than 10 employees are required to constitute an Internal Complaints Committee (ICC).

Section 12 — Interim Relief

Employers are required to provide interim relief during pendency of inquiry, which may include:

Transfer;
Leave;
Other appropriate reliefs.

Section 13 — Action on Inquiry Report

Employers are required to act upon recommendations of the inquiry report within 60 days of receipt.

Section 16 — Confidentiality

Employers are required to ensure that information relating to:

Aggrieved woman;
Respondent;
Witnesses;
Proceedings,

is not published or disclosed to the public or media.

Section 17 — Penalty for Breach of Confidentiality

Section 17 provides penalties for violation of confidentiality obligations under Section 16.

Section 19 — Duties of Employer

Section 19 imposes several duties upon employers, including:

Providing a safe working environment;
Displaying penal consequences of sexual harassment;
Organising workshops and awareness programmes;
Assisting in securing attendance of witnesses and respondents;
Providing information to ICC or Local Committee;
Assisting women in filing complaints under IPC where required.

Section 22 — Annual Report

Employers are required to include details relating to:

Number of cases filed;
Disposal of complaints,

in annual reports.

Section 26 — Penalties for Non-Compliance

Section 26 provides for penalties in cases of non-compliance with provisions of the Act.

SHe-Box Portal

The SHe-Box Portal has been made mandatory for workplaces to onboard.

This requirement was reinforced by the Supreme Court in the Aureliano Fernandes judgment.

Reference:

Press Information Bureau — SHe-Box Portal

Conclusion

The POSH Act, 2013 represents a significant development in workplace protection laws for women in India.

The legislation emerged from judicial intervention through the Vishaka Guidelines and introduced a dedicated statutory framework focused on prevention, prohibition, and redressal of workplace sexual harassment.

Subsequent judicial decisions have continued to emphasize:

Procedural fairness;
Effective implementation;
Employer accountability;
Institutional compliance.

The Act places substantial obligations upon employers to ensure safe workplaces, establish complaint mechanisms, maintain confidentiality, and conduct awareness and sensitisation programmes.