A Review of POSH Act and Its Implementation in Kerala

Anil Sethumadhavan and Sreenandana CS | November 07, 2024 | Published Online

Workplace harassment, particularly against women, remains a significant concern in public discourse, often reflecting broader societal attitudes towards gender and power dynamics. Between 2018 and 2022, India reported more than 400 cases of sexual harassment at work each year, with an average of 445 cases annually. In 2022 alone, there were 419 reported cases, equating to approximately 35 incidents per month (Varghese, 2024). These alarming statistics highlight the pervasive nature of sexual harassment and the critical necessity for a robust legal framework to address it.

The enactment of the Prevention of Sexual Harassment (POSH) Act in 2013 by the Supreme Court of India marked a pivotal moment in establishing such a framework aimed at mitigating misconduct in workplaces across the country. This act was designed to empower victims, providing them with mechanisms to report incidents and seek redress, thereby fostering safer work environments.

The POSH Act drew its foundational principles from the Vishakha Guidelines, established in 1997 following the landmark case of Vishaka v. State of Rajasthan (Bansal & Naaz, 2021). These guidelines were the first judicial response to sexual harassment in the workplace, outlining the responsibilities of employers to prevent and address harassment. They emphasised the need for creating a safe working environment and mandated the establishment of Internal Complaints Committees (ICCs) in organisations to handle complaints effectively. The adoption of the POSH Act built upon these guidelines, formalising and expanding their scope across all sectors.

Building on this foundation, the recent release of the Hema Committee report catalysed an essential dialogue regarding sexual harassment within the Malayalam film industry, generating discussions that have transcended regional confines. To appreciate the historical importance of the Hema Committee report, it is imperative to contextualize it alongside the POSH Act and the Vishakha Guidelines. The report highlighted systemic issues within the industry and called for accountability, mirroring the objectives of both the Vishakha Guidelines and the POSH Act (Shrivastava & Sharma, 2024).

Despite the POSH Act’s role in raising awareness and offering legal protections, its implementation has encountered numerous obstacles, including employer resistance and insufficient enforcement measures. The Hema Committee’s initiative marked the first time a governmental body systematically investigated the entertainment sector regarding such grave issues, reflecting a significant commitment to addressing sexual harassment.

In this context, the present study aims to examine the implementation of the POSH Act in various workplaces across Kerala, analysing its effectiveness and identifying its limitations. The methodology employed involves a thorough review of secondary sources, including news articles and academic studies, which provide insights into the practical application of the act in the state’s diverse workplace environments. This analysis will contribute to a comprehensive understanding of both the successes and challenges inherent in the legislative framework designed to combat sexual harassment in India.

Government Offices and Internal Complaint Committees (ICCs)

An in-depth study of Internal Complaint Committees (ICCs) in Kerala’s government offices revealed that while these committees are legally mandated, their functioning is often inadequate. Although every office has established an ICC, many exist only on paper (L & R K, 2017). The study indicated that employees lack awareness regarding the committees’ roles, procedures, and the existence of support mechanisms. In interviews with members from 15 ICCs, it was found that in 11 of these committees, members, including the chairpersons, were not fully informed about the complaint-handling process. This lack of understanding fosters an environment where sexual harassment complaints are significantly underreported. Many women chose to address their issues informally due to concerns about public scrutiny, stigma, and the potential repercussions of filing formal complaints. The Kerala police department has also faced increasing scrutiny over sexual harassment.  In an interview, R. Sreelekha, the  first female IPS officer in Kerala  shared an incident where a female Sub Inspector approached her for support after enduring harassment from a senior Deputy Inspector General (The News Minute, 2022). This case highlights the urgent need for a safe and supportive work environment for women in law enforcement, as well as the necessity for effective mechanisms to address and prevent such misconduct within the police force.

The University Grants Commission (UGC) has established guidelines for higher educational institutions (HEIs) to address sexual harassment through the “University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulation, 2015.” This regulation, alongside the POSH Act, applies to educational settings, where a survey at the University of Kerala and Calicut University indicated high levels of harassment. Many respondents reported personal experiences or awareness of harassment among peers, yet there was a significant reluctance to formally report these incidents (SAM, 2012). Women cited fears of social ostracisation, victimisation, and a lack of support as primary reasons for this hesitancy. Furthermore, awareness campaigns about the Internal Complaints Committees (ICCs) have proven inadequate, with most committees focusing more on complaint resolution rather than on proactive gender sensitisation and awareness initiatives. As a result, the institutional culture remains largely unchanged, which diminishes the intent of the POSH Act.

News and Media

In the media sector, the establishment of ICCs post-MeToo movement has not effectively translated into reporting mechanisms. Journalists expressed concerns about a lack of knowledge regarding the existence of these committees and the proper procedures for filing complaints. This situation is indicative of a broader cultural issue within media organisations, where the leadership often lacks gender sensitivity, thereby impacting women’s willingness to seek recourse for harassment. In an interview conducted by The News Minute, a journalist based out of Thiruvananthapuram, said: “If you ask whether those who head newsrooms are gender sensitive, the answer is ‘no’, except in very few cases. After the MeToo movement, ICs have been formed in almost all media houses. But most women journos don’t know whom to complain to or what is the mail ID to send a complaint. This is an indicator of where we still stand” (Balan, 2021).

Limitations in implementation of the POSH Act

From the analysis of the available literature upon the implementation of the POSH act in various sectors in Kerala, it’s evident that there exist several limitations in its successful enactment. Earlier this year, a Supreme Court Bench of India had remarked that there are “serious lapses” and “uncertainty” regarding the POSH act’s implementation and also had issued directions to the Union, States, and Union Territories to verify if all government bodies had formed Internal Complaint Committees and to ensure that the composition of such panels is in strict adherence with the Act (Munjal, 2023). There are government bodies even in which ICCs haven’t been formed yet. A report which came in the backdrop of the wrestler’s protest in Delhi against Wrestling Federation of India (WFI) head Brij Bhushan Sharan Singh for alleged acts of sexual harassment revealed that 16 out of the 30 national sports federations in the country had not constituted an ICC to date (Vasavda & Kamath, 2023).

Ambiguity is something for which the POSH Act has been majorly criticised. The range of ambiguities that constitute the term ‘workplace’ is an important one. The term “workplace” in the context of an office is widely understood to include the boundaries of a physical space or structure, the locations that employees visit while on the job, interactions on digital or online platforms, events that employers or their clients host, and employer-provided transportation. There is no statutory provision to deal with complaints relating to incidents of sexual harassment that have allegedly occurred in common areas or at the entrance/exit points of large office complexes, business hubs, corporate campuses, or within co-working spaces, etc. Similar is the ambiguity whether some spaces come under the purview of the Act. Until the jurisdiction made by the Kerala High Court mandating that shooting sites of every movie must have an IC, it was in the shades of ambiguity. Such ambiguities still exist in the case of several arenas of work (Dwivedi & George, 2024). 

A recent judgement by the Kerala High Court underscores the lack of workplace protections for women in political parties and emphasises the necessity for legal measures to safeguard their rights. The Centre for Constitutional Rights Research and Advocacy (CCRRA) filed a Public Interest Litigation (PIL) seeking to mandate the establishment of an Internal Complaints Committee (ICC) within political parties under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), as well as the Supreme Court’s Vishakha guidelines. However, the Kerala government opposed the PIL, arguing that political parties are not required to set up ICCs under the POSH Act. While the Act addresses sexual harassment in workplaces, its unclear application to political parties leaves women vulnerable to harassment and discrimination in political environments. The court’s ruling further highlights this ambiguity, raising concerns about women’s safety in politics. In contrast, other countries, like the United Kingdom, have effectively tackled similar issues; the UK’s Equality Act, 2010 mandates political parties to establish a complaints mechanism for sexual harassment and discrimination  (Viraj et al., 2023).

Yet another issue brought up by a number of stakeholders is that the Act does not adequately address accountability because the act does not outline who is in charge of making sure workplaces abide by it and who can be held accountable if its rules are broken (Shrivastava & Sharma, 2024). In most of the workplaces, there are no mechanism which can ensure that proper awareness is imparted to the employees regarding the redressal mechanisms they can approach in case they gave sexual harassment. Without such a body being in place, the successful implementation of the POSH act would be difficult.  Another major criticism of the act is of its non gender-neutral character since it focuses primarily on the protection of women and potentially excluding individuals of diverse gender identities from its purview.

While the POSH act aims to provide a framework for protecting women from harassment at work, its application is primarily focused on organised sectors and formal workplaces. Many women in the unorganised sector are not covered under this legislation due to several factors such as lack of legal recognition (Deshpande, 2021). Unorganised sector workers often operate in isolated environments or under the supervision of a single employer, creating power imbalances that can lead to exploitation and harassment. Fear of losing their jobs or income prevents many from speaking out against harassment. Unlike their counterparts in organised sectors, women in informal jobs have limited access to support structures, such as unions or advocacy groups that  can assist them in navigating harassment complaints. This isolation can exacerbate their vulnerability to abuse. Hence, to address the challenges faced by women in the unorganised sector, it is crucial to adapt the POSH act and related policies to ensure broader coverage and protection.

However, we also do see some attempts being made to ensure the implementation of the act. In January 2023, the Government of Kerala has already launched a POSH act compliance portal under which employers in Kerala are required to register themselves on the POSH compliance portal and upload details of the IC constituted and annual reports filed by the employers under the POSH act. Such attempts can strengthen the process of implementation of the act in states.

Conclusion

The analysis of the implementation of the Prevention of Sexual Harassment (POSH) Act in Kerala underscores significant challenges that continue to hinder the effective protection of women in various sectors. To fully understand the complexities and lapses in the implementation of the POSH act, empirical studies across various sectors are essential. Such research can provide concrete data on the effectiveness of current measures, revealing not only the extent of awareness regarding the POSH act but also the real experiences of women facing harassment. By conducting detailed assessments in different environments—be it corporate offices, educational institutions, or the unorganised sector—researchers can identify specific barriers to reporting and resolution, such as cultural stigma, lack of training, and inadequate support systems. These studies will be instrumental in informing policymakers and organisations about the specific needs and challenges within diverse workplaces. Insights gained from empirical research can lead to targeted interventions and the refinement of existing frameworks, ensuring that the POSH act fulfils its intended purpose.

The recent initiatives, such as the POSH act compliance portal launched by the Government of Kerala, demonstrate a commitment to improving implementation, yet much work remains. To foster real change, it is essential to enhance awareness, ensure accountability, and adapt the legal framework to encompass diverse workplace settings. Only through comprehensive efforts can we hope to transform the workplace culture, ensuring that women and other gender minorities are empowered to report harassment without fear, promoting a safer and more equitable work environment for everyone.

About Authors

Anil Sethumathavan is currently pursuing a PhD in Urban Studies at Ambedkar University, Delhi.

Sreenandana C.S. holds a Master’s degree in English Literature from Jawaharlal Nehru University.

References and Endnotes

Balan, S. S. (2021, April 27). Lack of awareness, poor implementation: Why PoSH Act fails to protect Kerala women. The News Minute. https://www.thenewsminute.com/kerala/lack-awareness-poor-implementation-why-posh-act-fails-protect-kerala-women-147925 

Bansal, A., & Naaz, I. (2021, 14 May). EMERGENCE OF THE POSH ACT & ITS FEATURES VIZ-A-VIZ VISHAKA GUIDELINES. Acumen Juris. Retrieved October 9, 2024, from https://www.acumenjuris.com/article-single.php?id=36

Deshpande, A. (2021, January 6). Does The POSH Law Protect Women Working In The Informal Sector? Ungender. Retrieved October 9, 2024, from https://www.ungender.in/sexual-harassment-against-women-in-the-unorganised-sector/ 

Dwivedi, M., & George, R. (2024, February 11). Tightening gaps in the existing POSH framework. ETHRWorld.com. Retrieved October 9, 2024, from https://hr.economictimes.indiatimes.com/news/workplace-4-0/tightening-gaps-in-the-existing-posh-framework/107596106

L, B., & R K, B. B. (2017, September 2). Functioning of Internal Complaint Committees in Government Offices of Kerala. Economic and Political Weekly. Retrieved October 9, 2024, from https://www.epw.in/engage/article/functioning-internal-complaint-committees-government-offices-kerala 

Munjal, D. (2023, May 15). Explained | What is the PoSH Act and why has the Supreme Court flagged lapses in its implementation? The Hindu. https://www.thehindu.com/news/national/explained-the-indian-law-on-sexual-harassment-in-the-workplace/article66854968.ece 

The News Minute. (2022, February 22). Former Kerala IPS officer says women cops are sexually harassed by male colleagues. The News Minute. https://www.thenewsminute.com/kerala/former-kerala-ips-officer-says-women-cops-are-sexually-harassed-male-colleagues-161226 

SAM, V. (2012). VISHAKHA GUIDELINES: A STUDY OF UNIVERSITIES IN KERALA [CCS Working Paper No. 200]. Centre for Public Policy Research. https://old.ccs.in/internship_papers/2008/Vishakha-Guidelines-kerala-study-200.pdf 

Shrivastava, K., & Sharma, S. (2024, October 8). Analysis Of POSH In The Backdrop Of Hema Committee Report. LiveLaw. https://www.livelaw.in/law-firms/law-firm-articles-/posh-hema-committee-report-271912#:~:text=The%20POSH%20Act%20defines%20sexual,while%20supporting%20victims%20of%20harassment. 

Varghese, A. (2024, August 14). Over 400 cases of sexual harassment at work logged every year since 2018. Business Standard. https://www.business-standard.com/india-news/over-440-sexual-harassment-cases-in-indian-workplaces-a-year-during-2018-22-124081401697_1.html 

Vasavda, M., & Kamath, A. (2023, May 4). Not just wrestling, half of national sports federations don’t have sexual harassment panel mandated by law. The Indian Express. https://indianexpress.com/article/sports/not-just-wrestling-half-of-national-sports-federations-dont-have-sexual-harassment-panel-mandated-by-law-8590204/ 

Viraj, V., Bose, A. K., Wasim, M., & Garg, M. (2023, August 10). Should political parties come under the POSH Act: Reflections on a Kerala High Court judgement. The Leaflet. Retrieved October 9, 2024, from https://theleaflet.in/should-political-parties-come-under-the-posh-act-reflections-on-a-kerala-high-court-judgement/