The Supreme Court has issued a slew of directions to the Union government, and all State/UT governments to ensure the effective implementation of the provisions of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) read with its Rules.
Significant among them is the mandatory direction issued by the Court that the States and Union Territories must appoint a “District Officer” as per Section 5 of the Act. Though Section 5 says that the appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer, the Court read this as a mandatory condition.
“Treating Section 5 as directory, would leave a gaping hole in the otherwise clearly delineated workflow and redressal mechanism, and the efficacy of this legislation, as a result, falls flat,” observed a bench comprising Justices S Ravindra Bhat and Dipankar Datta.
The bench passed these directions in a writ petition filed under Article 32 of the Indian Constitution by an organisation named ‘Initiatives For Inclusion Foundation’ seeking effective implementation of the provisions of the POSH Act.
District Officer has an important role
Each employer is legally mandated to constitute an Internal Complaints Committee under Section 4. To address the gaps where there is no ICC (i.e., for those working in a workplace that employs less than 10 workers or where the employer themselves are the respondent), the Act provides for an Local Committee in each district, which is to be constituted by the District Officer.
Emphasising more about the role of the District Officer, the Court noted that the Officer is also tasked with designating a nodal officer in each block, taluka, and tehsil in rural or tribal area, and ward or municipality in the urban area, to receive complaints and forward the same to the concerned LC.
The Court stated, “the role of the District Officer, is pivotal; they are responsible for numerous aspects in the implementation of the Act. It is where the buck stops, so to say, in terms of coordination and accountability relating to the POSH Act. Even in terms of payment and fees the District Officer is responsible for payment of allowances to the Chairman and members of the LC, which it receives from the agency set up by the State Government”.
The Court noticed that most states notified District Officers only after a notice of this writ petition was served on them, and even among those states that have taken action they have simply notified a specific post as District Officer, without providing any specific details of the officers, their contact information, etc. Most states have failed to provide documentation on constitution of LCs, and even those who have, many have not constituted one in each district.
Adverting to the affidavits filed by the Union of India, the petitioner pointed out that these affidavits have highlighted the generation of awareness through a massive publicity campaign and issuance of advisories, publication of handbooks, etc.
“However, it is quite plainly clear that though the generation of awareness is necessary, if a woman suffers sexual harassment at the workplace, the framework for redressal has to in fact exist.,”
“The failure to notify district officers specifically, has a snowballing effect on appointment of the LCs and nodal officers, in addition to other aspects. The complaint mechanism, and larger framework – no matter how effective, remain inadequate if the authorities set out in the Act, are not duly appointed/notified,” the Court observed.
“Therefore, the State/UT government must ensure that every district, at all times has a notified District Officer; in case of vacancy caused by retirement, or any other reason, it must be duly remedied, to enable smooth transition between officers, and ensure that there is always someone incharge of this position. Furthermore, effort has to be undertaken to orient, train and sensitise these district officers, with regards to the provisions of the Act and Rules, with an emphasis on their roles and obligations. Similar range of activities must be conducted for the nodal officers appointed and LCs constituted by each district officer,” it stated.
The Court issued the following directions in this regard :
The concerned Principal Secretary of the State/UT Ministry of Women and Child (or any other Department) will personally ensure appointment of a district officer in each district within their territorial jurisdiction, as contemplated under Section 5 within four weeks from the date of this judgment.
Pursuant to this, each appointed district officer: (a) must in compliance of Section 6(2) appoint nodal officers in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area; (b)must constitute a LC, as contemplated under Section 6 and 7 of the Act; and (c) ensure the contact details of these nodal officers, and LCs, shall be forwarded to the nodal person within the State Government Ministry of Women and Child Development within 6 weeks from the date of this judgment.
Due compliance with Section 21(1) and (2), and Section 22, must be undertaken by each District Officer, of the State including collecting the reports from the IC/employers (or information where no report is available), and from the LC, and preparation of a brief report to be shared with the State government.
Operationalizing the Act for the unorganized sector
At the outset, the petitioner highlighted that the inclusion of definitions of ‘domestic worker’, and ‘unorganized sector’ in the Act has expanded the scope of its application.
Also, the composition and role of the LC which is the foundational body in the district, especially so for the unorganized sector. This committee is headed by a nominated chairperson who is an eminent woman in the field of social work and committed to the cause of women; one member is nominated from the women working in a block/taluka/tehsil (rural) or ward/municipality (urban); two more, of which at least one has to be a woman to be nominated amongst NGOs or associations committed to cause of women or a person familiar with the issues relating to sexual harassment.
The inclusion of nominees from such NGOs is also helpful, because in a context where LCs may convey a sense of formality, women find it easier to approach local NGOs; this is one of the finding in a 2015 International Labour Organization (ILO) report.
However, it was pointed out that there is no avenue in the law for these NGOs to register or pursue the matter on behalf of such consenting women. Thus, the spreading of awareness relating to LCs and dispelling the air of formality, should form a priority of the highest-level State, that seeks to implement the Act.
Directions Issued In This Regard Are:
The District Officers, once nominated by the State are hereby directed to identify the non-governmental organisations working with women and their protection within the district, and take action pursuant to their duty under Section 20(b) for creation of awareness.
The appropriate government or district officers in question, must also undertake effort to spread awareness on the existence of LCs, and make them approachable for the unorganized sector – thus operationalizing the horizontal import of this Act.
The other directions passed are as follows:
Coordination between Union Government and State/UT Governments
Under this head, it was directed that the Women and Child Development Ministry of every State/UT, through its Principal Secretary, should consider identifying a ‘nodal person’ within the Department, to oversee and aid in coordination as contemplated under the POSH Act. This person would also be able to coordinate with the Union Government on matters relating to this Act and its implementation.
Further, each State/UT Government is to submit a consolidated report of its compliance with the below directions to the Union Government within 8 weeks.
Amendments and gaps in Rules that State must fill
The Union Government ought to consider amending the Rules, so as to operationalise Section 26 of the Act, by recognising a reporting authority, and/or a fine collecting authority. This direction must be read in light of the discussion in paragraph 8 (role of district officer with regards to annual compliance reports) and paragraph 21 (on the penalty regime contemplated in the Act and resulting lacunae in the Rules) of the Judgment.
Training and capacity building
The District Officers and Local Committee (LCs) should be mandatorily trained regarding their important responsibilities. Given their position in the redressal framework contemplated in the Act, they must first be sensitised to the nature of sexual harassment, the gendered interactions that occur in the workspace, etc. Further, it was stated that the State Governments, must organise periodic, and regular training sessions at the District level which are to be attended by the District Officer, members of the LC, and nodal officers.
Larger efforts towards awareness
In furtherance of Section 24, the State/UT Governments, and Union Government were directed to set out the financial resources allocated and or needed, to developing educational, communication and training material for spreading awareness of the provisions of this Act to the public, and formulate orientation and training programmes.
Annual Compliance Reports
Due compliance with Section 21(1) and (2), and Section 22, must be undertaken by each District Officer, of the State including collecting the reports from the Internal Complaints Committee (IC)/employers (or information where no report is available), and from the LC, and preparation of a brief report to be shared with the State government.
Monitoring of ICs and compliance by employers
In furtherance of the direction passed in Aureliano Fernandes v. State of Goa & Ors. which address most specifically, the constitution of ICs in public establishments and some private establishments it was directed that efforts made must be in line with the scheme of the Act, and through the authorities so designated for the various roles.
Similarly, directions are hereby made to hospitals, nursing homes, sports institutes, stadiums, sports complex, or competition or games venues to establish ICs, and report compliance as per the duties under this Act.
Case Title : Initiatives For Inclusion Foundation v. Union of India
Citation : 2023 LiveLaw (SC) 910
Click here to read the judgment
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