How effective are India’s legal frameworks in ensuring workplace safety for women?

(LEGAL AND JUDICIAL FRAMEWORK OF WORKPLACE SAFETY FOR WOMEN)

ABSTRACT:

Despite more women joining the workforce in India than before, workplace safety of women remains a significant concern. In 2023, India ranked 127th out of 146 countries in the Global Gender Gap Index, with women’s economic participation ranked 142nd. South Asia may take 149 years to close the gap. This article outlines the social contexts that necessitated gender-just legal provisions for addressing workplace sexual harassment by reviewing literature on legal and judicial framework to understand strengths, challenges, gaps, propose recommendations for legal reforms/interventions to create a safe and inclusive work environment.

Objectives: 

●        To examine key legislations affecting working women

●        To evaluate the efficacy of judicial frameworks and redressal mechanisms

●        To identify gaps and suggest reforms

 Preface:

Globalisation has changed gender roles significantly. Post independence, though women are more socially and financially independent, patriarchy relegates them to watertight gender roles, thereby reflecting gender gaps across different sectors. Sexual harassment is a violation of human and constitutional rights. In workplaces, it leads to an insecure, hostile work environment discouraging women’s workplace participation. This has led to occupational segregation as women are concentrated in certain labour markets.

Before the Supreme Court’s landmark ruling in Vishaka and others v. the State of Rajasthan (1997) 6 SCC 241, AIR 1997 SC 3011, women could only register complaints of sexual harassment under Sections 354 and 509 of the Indian Penal Code.

Article 14 of the Indian Constitution, the Right to Equality prevents discrimination on the basis of religion, race, caste, sex or place of birth laying the foundation for gender equality. This article ensures the existence of gender friendly labour laws aligning with gender rights and equal opportunities in all spheres including political, economic and social.

The Female Labour Participation Rate has been increasing: from 23.3% in 2017–18 to 37% in 2022–23. However, there is still a large gap between men and women, with the Male Labor Force Participation increasing from 75.8% in 2017–18 to 78.5% in 2022–23.¹

 Legal framework for workplace safety for women:

In India, women are predominantly employed in the unorganised sector and choose jobs to balance with domestic duties. This pattern is shaped by several socio-cultural factors, including unequal distribution of unpaid domestic work, gaps in gender-based skills, education, restricted access to digital literacy, mobility limitation and insufficient institutional support in workplaces.

Since 1860, the Indian Penal Code protected Indian citizens, including women in the workforce, against²specific acts of criminal intimidation, defamation, assault and battery. The Bhanwridevi and Mathura rape cases paved the way for judicial reforms through the Vishaka guidelines laid down by the Supreme Court of India in 1997 to combat sexual harassment at workplace till legislation was laid down. These procedural guidelines were based on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), making the employer responsible for handling complaints of workplace sexual harassment of women by constituting a prevention and redressal committee. Despite its significance, the Vishaka guidelines lacked legal compliances for mandatory provisions.

The Information Technology Act, 2000, provided a legal framework for regulating online content and actions, including publication of obscene material, by turning such acts into a criminal offence and sending offensive messages and publication, circulation of private pictures of others a criminal act. This act was further amended twice to address technological advances.

The Nirbhaya rape case paved way for judicial reforms in women’s laws. The Justice J S Verma committee was formed in 2012 and the report was released in 2013. It emphasized the importance of a law on sexual harassment at the workplace as one that should have a wide scope to include “every female member of the national workforce” within its ambit. The report further underlined the importance of including the unorganised sector within its purview and ensuring that the informal sector was not exempted from the legislation.³

The Criminal Law Amendment Act, 2013 widened the scope of Section 375 of the IPC, which deals with sexual harassment. The legislators also converted the Vishaka guidelines into law ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act, 2013)’. To prevent overburdening of the judiciary, a comprehensive legal framework for prevention and redressal of sexual harassment at workplace. The act requires employers with 10 or more employees to establish an Internal Committee (IC) to address complaints of sexual harassment. In workplaces with less than 10 employees or for women working in the unorganised sector, the Local Committee (LC) addresses complaints of sexual harassment. This act has three elements – prevention, prohibition and redressal.

The Ministry of Women and Child Development, Government of India, has also taken measures for prevention of sexual harassment at the workplace by developing a single window online portal for registering complaints related to sexual harassment at the workplace called ‘The Sexual Harassment Electronic–Box (She-Box)’. The She-Box portal directly connects the complainant with the concerned authority having the jurisdiction to handle the matter.  It also serves as a central repository for information on LCs and ICs across the country.⁴

Judicial framework for workplace safety of women :

While the legislature formulates laws, the judiciary interprets these laws to reflect the intent for formulating them. The courts set precedents that can be used for posterity in landmark judgements that change the interpretation of the law. Some landmark judgements in the sexual harassment at workplace are briefly discussed below:

•        In State of Maharashtra v/s Madhukar Narayan Mardikar (1991), the Supreme Court of India emphasized the need to protect dignity of women against verbal assault and set an important precedent in the fight against abuse of power in India.

•        In Rupan Deol Bajaj v/s K.P.S. Gill (1996), the court directed the Chief Judicial Magistrate to take cognizance of the police report with respect to the offences and try the case himself in accordance with law.

•        In Sakshi v/s Union of India (2004) case, the court discussed the importance of regulating content that is derogatory to women’s dignity.

•        The Poornima Advani vs. Union of India and Anjali Bhardwaj vs. Union of India cases upheld that all government departments must have Internal committees to address complaints of sexual harassment.

•        In Sanchayani Sharma vs. National Insurance Company Ltd case, the High court upheld that sexual harassment need not be physical in nature and can also include verbal or non-verbal conduct, such as unwelcome advances, comments or gestures.

Understanding Compliance Gaps and Structural Challenges in the POSH Act:

Lack of safe and inclusive workplaces affects employee morale and productivity. Women feel vulnerable and undervalued. Understanding and addressing challenges in the workplace is essential to create a just, productive and gender equitable workplace.

1. The District Officer (DO) is responsible for reviewing the annual reports submitted by companies under the Prevention of Sexual Harassment (POSH) Act. Regardless of this compliance mandate, there are many government institutions and private sector bodies which do not submit the annual report due to lack of awareness or negligence. No specific central or nodal agency has been deputed to collect and collate data. Also, there is no state, national or sector wise repository of POSH data for compliance or reported cases and their status. Availability of such data is essential to measure effectiveness of the act.

The Supreme court as well as NHRC took cognizance of an article published in the Indian express on 4th May 2023 where 16 out of the 30 national sports federations (government federations) had not established IC. Out of those who had constituted IC, the court did not have the stipulated number of members, six lacked any external member, one had 2 panels but did not have an independent member.

If this situation is indicative of negligence in enforcing POSH policy in one of the national sports bodies, the situation in other private as well as other government bodies and in the informal sector can only be speculated.

Center for Economic Data Analysis (CEDA) conducted research to analyse POSH compliance of 300 listed companies on the National Stock Exchange. “The 1,160 cases reported in FY 2022-23 were across just 81 companies of the 300 companies in our dataset i.e. 219 companies did not report any case under the POSH Act that year. In fact, 50 percent of the cases were reported across just eight companies.”⁵  

 2. Ambiguity in POSH act regarding geographical scope of workplace, third party harassment and absence of guidelines for IC/LC training requisites for employee awareness permits contradictory expositions.

3. The IC/LC has been accorded quasi judiciary rights (under the civil court) in the POSH Act. However, in the absence of concrete guidelines for training of IC/LC and awareness programmes, members are unaware of legal terms and relevant laws. There is also a lack of clarity about their roles and responsibilities. This has a direct impact on the process of conducting fair enquiry.

Employers are also lackadaisical about organising awareness sessions for employees. Walchand Plus, in collaboration with a research partner conducted a comprehensive study to assess implementation of the POSH Act in November 2023. ‘A staggering 40% of working women experiencing insecurity are unaware of the protective measures offered by the POSH Act, and only 42% of women are knowledgeable about it. According to surveys, 53% of HR professionals don’t understand the Act and HR managers are concerned about senior management downplaying harassment complaints and the underrepresentation of women’. ⁶

 4. Section 24(b) of the Act mandates “Appropriate Government” to “formulate orientation and training programs for the members of the Local Committee” subject to availability of financial and other resources. The Act, however, does not lay down any guidelines or framework for these training programs. This often leads to compliance challenges and committee members lack clarity about their roles, responsibilities and procedures.

The workplace reticence regarding sexual harassment of women can be observed in The Martha Farrel report which conducted an RTI enquiry to obtain information regarding the Local Committees. One of the questions pertained to orientation and training programmes for members of the Local Committee. The report concluded that only an abysmal 18% of the districts with LCs have organised any orientation program for their members. 2% of them replied in the negative and the rest did not reply. Also, in districts that have constituted an LC, only 11% of them responded that they have received cases of sexual harassment at the workplace. State’s reluctance in sharing information about LCs can be interpreted as non-compliance in implementation of POSH act. Under RTI, these districts are mandated to share the requested information, yet they did not comply. Only eight states provided information while others kept pushing the application to other departments quoting it was out of their jurisdiction areas.⁷

 5. About 94% of women in the Indian workforce are employed in the unorganised sector.⁸ The government plays an important role beyond formation of redressal committees, calling for active promotion of awareness about the law, implementation, procedures and redressals amongst women. Women in the unorganised sector are unable to classify sexual harassment and even if they are, they remain unaware about the redressal process.

6. The legal mandate on the right to privacy and confidentiality does not promote trust in women to report such cases as they fear public humiliation and retaliation.

7. In absence of the POSH Act being gender neutral, the scope of law is limited to women alone excluding members of the  LGBTQ+ community and men.

8. The global #Metoo movement gained momentum in India in 2018. Survivors used social media to publicly name their sexual harasser to be heard and get their complaint redressed. This led to many employers taking note of such complaints to prevent them from becoming public and losing brand value. But this movement is largely confined to the urban sector and has remained restricted to women possessing ICT skills. 

9. ‘Total POSH (Prevention of Sexual Harassment) complaints reported by 700 NSE-listed firms analysed by The Udaiti Foundation increased from 1,807 during the financial year 2022-23 to 2,325 in 2023-24, or a 29% increase. The “total pending resolution of complaints” on the other hand, worryingly increased from 260 in 2022-23 to 435 in 2023-24, which is a 67% increase.’⁹

There is an urgent need to analyse the reasons for these delays and close the gaps to ensure complaint resolution. Apart from legal compliances, additional support systems by way of legal aid can also be set up.

Recommendations:

There is a need to redress these challenges not only to improve but also to create a safer and more equitable working environment for women in all sectors.

1.   Despite a legal and judicial framework, the number of female employees in the Public and Private sector raising their voices against sexual harassment is minimal.

“The Brihanmumbai Municipal Corporation (BMC) has 40% women among its 1.1 lakh workers, and has created an ecosystem that helps report any untoward incidents. “BMC has 106 departments, and each of them has its own committee to deal with any sexual harassment cases. Also, the municipal body is running an awareness programme every month,” said a senior BMC official on condition of anonymity. “The city-based non-governmental organisation, Savitribai Phule Gender Resource Centre is helping the municipal corporation to formulate rules as well as for redressal, pr” said the official.¹⁰        

Public and private sector companies can develop policies and programmes similar to the mechanisms developed by the BMC to ensure workplace safety of women.

2. Section 24(b) of the POSH act ‘Calls upon orientation and training programs for members of Local Committee/Internal committee. In the absence of training guidelines and monitoring regulations, capacity/skill building of committee members may not be optimum and could render the redressal process ineffective. The quasi-judicial framework of the IC/LC will be constructive if a separate monitoring body for the IC/LC formation and capacity building workshops is appointed rather than delegating it to the overburdened offices of the District Officer. Regular capacity building training ensures that the IC/LC members are able to develop their competencies and have a clear understanding about their roles, responsibilities, legal procedures and compliances.

 3. The role of employers and the IC/LC should not be restricted to addressing and redressal of sexual harassment cases but they should also play an active part in prevention and ensuring a safe work place by promoting legal awareness. Concrete guidelines and compliances could be set up regarding the same.

4. Adequate measures to ensure privacy, confidentiality and protection of sensitive information of aggrieved women and witnesses should be formulated through confidentiality clauses, NDAs, etc. along with formulation of anti-retaliatory measures. Initiatives encouraging whistle blowers/witnesses to speak up should be undertaken. 

 5. In order to create a safe and inclusive workplace it is important that all levels in the organisation understand and take cognizance of constituents of sexual harassment to prevent mismanagement and underreporting of cases.

 6. Private and public workplaces should be mandated to adopt and promote a ‘zero tolerance policy’ towards sexual harassment to create a safe and inclusive workplace for all genders.

 Conclusion:

 In order to create a safe, productive and inclusive workplace, an effective implementation of the POSH Act is essential. Besides regular capacity building workshops and training/awareness programmes for all employees, it is necessary to ensure the incorporation and sound implementation of policies and practices that ensure prevention, redressal and reporting of sexual harassment at workplaces.

1 https://thesecretariat.in/article/in-5-charts-progress-of-women-in-the-indian-workforce-is-still-a-work-in-progress

2 https://thesecretariat.in/article/in-5-charts-progress-of-women-in-the-indian-workforce-is-still-a-work-in-progress

3 https://www.ungender.in/sexual-harassment-against-women-in-the-unorganised-sector/

4 https://shebox.wcd.gov.in/#:~:text=Sexual%20Harassment%20electronic%20Box%20(SHe,complaint%20related%20to%20sexual%20harassment.

5 Akshi Chawla (2024), “A decade of the POSH Act” Centre for Economic Data and Analysis (CEDA), Ashoka University. Published on ceda.ashoka.edu.in

6 https://www.businessmanager.in/critical-gaps-in-workplace-safety-for-women-and-posh-act-implementation-report/

7 https://www.marthafarrellfoundation.org/uploads/pdf_files/1555302838_RTI%20Study%20PDF.pdf

8 Goel, Geetika & Singh, Tripti & Gupta, Anvita. (2011). Women Working in Informal Sector in India: A saga of Lopsided Utilization of Human Capital.

9 https://www.hindustantimes.com/business/workplace-sexual-harassment-cases-in-700-nse-listed-firms-increased-29-pending-complaints-rose-67-report-101724509941314.html

10 https://www.livemint.com/Companies/sZR4sQ2lNON3IcecgE6UUP/Government-workplaces-lag-in-setting-up-sexual-harassment-me.html