PoSH at the Workplace: Law, Rights and Responsibility

Advocate Y Babji

The Prevention of sexual harassment (PoSH) at the workplace is widely regarded as a progressive and fundamental step towards ensuring gender equality, human dignity and a safe, inclusive work environment for all individuals. Sexual harassment at the workplace is not merely a personal grievance. It is a serious violation of fundamental rights. In India, the legal framework addressing workplace sexual harassment has evolved through judicial intervention, social movements and legislative action, culminating in a comprehensive statutory mechanism. Understanding the law, its origins, scope and related legal provisions is essential for employers and the employees for creating safe, inclusive and respectful work environments.

Workplace

A workplace means any place where a woman is present or visits in the course of employment, including:

1. Government and private offices, institutions and organisations
2. Educational institutions, hospitals, sports facilities and training centres
3. Factories, shops, warehouses and commercial establishments
4. Any place visited during the course of work, including off-site locations, fieldwork areas and work-related travel
5. Transport provided by the employer (official vehicles, cabs, buses, boats)
6. Virtual and digital workspaces, including online meetings and work-related communication platforms
7. Dwelling houses or homes in cases of domestic workers

In essence, a workplace is not limited to a physical office. It includes any physical, digital or mobile space connected to employment or work-related activity.

Sexual Harassment

Sexual harassment at the workplace includes any unwelcome act or behaviour of a sexual nature that affects a person’s employment, work environment or dignity. This may involve physical contact, sexual advances, demands for sexual favours, sexually coloured remarks, showing pornography or any other unwelcome verbal or non-verbal conduct of a sexual nature.

Importantly, harassment need not be physical. It can be psychological, verbal or digital and may occur in offices, factories, educational institutions, hospitals, fieldwork locations, virtual workplaces or during work-related travel.

Origin of the Law

The foundation of India’s workplace sexual harassment law lies in the landmark Vishaka vs State of Rajasthan (1997) judgment. The case arose from the brutal gang rape of Bhanwari Devi, a social worker, while she was performing her official duties.

Recognising the absence of specific legislation, the Supreme Court laid down the Vishaka Guidelines, treating sexual harassment as a violation of Articles 14 (Equality), 15 (Non-discrimination), 19 (Freedom of profession) and 21 (Right to life and dignity) of the Constitution. These guidelines were binding and remained in force until Parliament enacted a law, in 2013.

PoSH Act, a Landmark Legislation

In 2013, India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, commonly known as the PoSH Act, with the key objectives of:

1. Prevention of sexual harassment
2. Prohibition of such acts
3. Redressal of complaints in a time-bound manner

The Act applies to:

• Government and private organisations
• Educational institutions
• Hospitals and NGOs
• Domestic workers
• Organised and unorganised sectors

A “workplace” is broadly defined to include any place visited during employment, including virtual spaces.

Internal and Local Complaints Committees

The Act mandates the constitution of (1) Internal Complaints Committee (ICC) in organisations with 10 or more employees and (2) Local Complaints Committee (LCC) at the district level for smaller organisations or cases involving the employer.

These bodies are empowered to (a) Receive complaints (b) Conduct inquiries (c) Recommend disciplinary action and (d) Suggest compensation to victims.

Developments

Although more than 12 years have passed since its enactment, the PoSH Act itself has not undergone major amendments. However, its interpretation has evolved through judicial pronouncements. Courts have reinforced (a) The mandatory nature of ICCs (b) Employer liability for non-compliance and (c) Applicability to contractual, temporary and trainee employees. Failure to comply can result in fines, cancellation of licences and reputational damage.

Key Case Studies

Vishaka vs State of Rajasthan (1997): Established the constitutional basis of workplace safety and dignity.

Medha Kotwal Lele vs Union of India (2013): The Supreme Court observed widespread non-compliance with the Vishaka Guidelines and directed stricter enforcement, leading to the enactment of the PoSH Act.

Aparna Basu vs Union of India (2021): The Court reiterated that the absence of an ICC is a serious violation and directed all institutions to publicly display compliance details.

These cases underline that sexual harassment is not a private matter but a systemic issue requiring institutional accountability.

Provisions under PoSH Act, 2013

Under the PoSH Act, the focus is civil and disciplinary accountability at the workplace, not criminal punishment. However, some sections empower authorities to take strict action against harassers and ensure consequences. They are -

Section 3 – Prevention of Sexual Harassment: Prohibits sexual harassment at the workplace and establishes the right of every woman to a safe working environment.

Section 4 – Internal Complaints Committee (ICC): Mandates the constitution of an ICC in every workplace with 10 or more employees and grants it powers similar to a civil court during inquiry.

Section 9 – Complaint of Sexual Harassment: Enables an aggrieved woman to file a complaint within three months of the incident. The time limit may be extended for valid reasons.

Section 11 – Inquiry into Complaint: The ICC or LCC must conduct a formal inquiry following principles of natural justice. The inquiry must be completed within 90 days.

Section 12 – Interim Relief: Pending inquiry, the ICC may recommend transfer of the aggrieved woman or the respondent, grant of leave up to three months, or any other relief to prevent further harassment.

Section 13 – Action after Inquiry (Punishment): If allegations are proved, the ICC/LCC shall recommend (a) Disciplinary action as per service rules (warning, suspension, termination, etc.) (b) Action as prescribed under the Act if no service rules exist (c) Deduction from salary as compensation to the victim.

Section 15 – Compensation to the Aggrieved Woman: Factors considered include (a) Mental trauma and emotional distress (b) Loss of career opportunity (c) Medical expenses (d) Income and financial status of the respondent.

Section 17 – Confidentiality: Protects the identity of the complainant, respondent and witnesses. Violation attracts penalties under service rules.

Section 18 – Appeal: Any person aggrieved by ICC/LCC recommendations may appeal to the appropriate authority or court under applicable service rules.

Section 19 – Duties of Employer: The employer must (a) Act on ICC recommendations (b) Treat sexual harassment as misconduct (c) Organise awareness and training programmes.

Section 26 – Penalty for Non-Compliance: (a) Employer may be fined up to ₹50,000 (b) Repeated violations may lead to higher penalties and cancellation of business licences or registration of establishment.

Provisions under the BNS Act, 2023

While the PoSH Act provides civil remedies and workplace redressal, BNS provisions deal with criminal liability. Both can operate simultaneously.

Under the Bharatiya Nyaya Sanhita, 2023 (which replaced the Indian Penal Code, 1860), provisions relating to offences against women include:

Section 69 – Sexual Harassment (corresponding to IPC Section 354A), covering (a) Physical contact and advances involving unwelcome sexual overtures (b) Demand or request for sexual favours (c) Showing pornography against the will of a woman (d) Making sexually coloured remarks

Section 76 – Stalking (corresponding to IPC Section 354D), including (a) Following or repeatedly contacting a woman despite clear disinterest (b) Monitoring a woman’s use of electronic communication.

Section 79 – Word, Gesture or Act intended to Insult the Modesty of a Woman (corresponding to IPC Section 509).

Section 74 – Assault or Criminal force to woman with intent to Outrage Her Modesty (corresponding to IPC Section 354)

Other laws related to harassment

Information Technology Act, 2000 – Addresses online harassment, cyberstalking and circulation of obscene content

Industrial Employment (Standing Orders) Act – Allows inclusion of sexual harassment as misconduct

Service Rules for Government Employees – Treat sexual harassment as a serious disciplinary offence

Difference between PoSH and POCSO

A common confusion exists between the PoSH Act, 2013 and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The following comparison clarifies the distinction:

Aspect	PoSH Act	POCSO Act
Applicability	Women at workplaces	Children below 18 years
Nature	Civil law with disciplinary remedies	Criminal law
Focus	Workplace safety and dignity	Protection from sexual offences
Committees	ICC/LCC	Police & Special Courts

While PoSH addresses adult women’s workplace rights, POCSO is child-centric and mandates compulsory reporting.

Incidentally

India’s legal framework for women’s rights spans constitutional guarantees, criminal laws, workplace protections, family laws, welfare legislation and political empowerment measures (about 30 statutes in addition to Constitution of India). While the laws are comprehensive, their effectiveness ultimately depends on awareness, implementation, institutional accountability and social change. As courts have repeatedly held, women’s dignity, equality and safety are integral to constitutional morality and democratic governance. Next blog to deal deal with legal framework to protect women's rights in India.

Towards Prevention, Not Just Redressal

It is to clarify that the PoSH Act does not award imprisonment. For criminal punishment, cases are referred to the BNS under Sections 69, 74, 76 and related provisions. The PoSH Act ensures workplace discipline and accountability, while the BNS ensures criminal prosecution.

True prevention lies beyond legal compliance. Organisations must foster: (1) Gender-sensitive leadership (2) A zero-tolerance culture (3) Regular training and dialogue (4) Safe and accessible reporting mechanisms. Preventing sexual harassment is not merely about avoiding penalties but about upholding dignity, equality and trust in workplaces.

Conclusion

The Prevention of Sexual Harassment at the Workplace framework in India represents a significant step towards gender justice. Rooted in constitutional values and strengthened by judicial wisdom, the PoSH Act, along with the BNS and allied laws, provides a robust mechanism for protection and redressal.

However, laws alone cannot eliminate harassment. Awareness, accountability and ethical leadership are equally essential. A safe workplace is not a privilege. It is a fundamental right. Ensuring it is a shared responsibility of employers, employees and society at large.