Last month, The Supreme Court of India, in a judgment, flagged “serious lapses” and “uncertainty” in the implementation of the Protection of Women from Sexual Harassment (PoSH) Act, and issued a slew of Directions to Strengthen the PoSH Act.
The Supreme Court said it is disquieting to note that there are serious lapses in the enforcement of the Act even after such a long time and termed it as a “sorry state of affairs” which reflects poorly on all the state functionaries, public authorities, and private undertakings.
A bench of justices A S Bopanna and Hima Kohli said the working of the Act is centred on the constitution of internal complaints committees (ICCs) by every employer at the workplace and constitution of local committees (LCs) and internal committees(ICs) by the appropriate government.
The apex court said an improperly constituted ICC/LC/IC, would be an impediment in conducting an inquiry into a complaint of sexual harassment at the workplace, as envisaged under the statute and the rules.
“It will be equally counterproductive to have an ill-prepared committee conduct a half-baked inquiry that can lead to serious consequences, namely, imposition of major penalties on the delinquent employee, to the point of termination of service.
“It is disquieting to note that there are serious lapses in the enforcement of the Act even after such a long passage of time,” the bench said.
The top court also noted that this “glaring lacuna” has been recently brought to the fore by a national daily newspaper that has conducted and published a survey of 30 national sports federations in the country and reported that 16 out of them have not constituted an ICC till date.
“Where the ICC have been found to be in place, they do not have the stipulated number of members or lack the mandatory external member. This is indeed a sorry state of affairs and reflects poorly on all the State functionaries, public authorities, private undertakings, organizations and institutions that are duty bound to implement the PoSH Act in letter and spirit,” it said.
The apex court said being a victim of such a deplorable act not only dents the self-esteem of a woman, it also takes a toll on her emotional, mental and physical health.
“It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many of them even drop out from their job. One of the reasons for this reluctance to report is that there is an uncertainty about who to approach under the Act for redressal of their grievance.
“Another is the lack of confidence in the process and its outcome. This social malady needs urgent amelioration through robust and efficient implementation of the Act. To achieve this, it is imperative to educate the complainant victim about the import and working of the Act,” the bench said.
The top court said the victims must be made aware of how a complaint can be registered, the procedure that would be adopted to process the complaint, the objective manner in which the ICC/LC/IC is expected to function under the statute.
“However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless and until there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors. If the working environment continues to remain hostile, insensitive, and unresponsive to the needs of women employees, then the Act will remain an empty formality,” the bench said.
The top court said if the “authorities/managements/employers” cannot assure them a safe and secure workplace, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt.
“It is, therefore, time for the Union government and the state governments to take affirmative action and make sure that the altruistic object behind enacting the PoSH Act is achieved in real terms,” the bench said.
The top court’s observation came while hearing a plea filed by Aureliano Fernandes, former head of the department of Goa University, challenging an order of the Bombay high court regarding allegations of sexual harassment against him.
The high court had dismissed his plea against an order of the Executive Council of Goa University (Disciplinary Authority) which dismissed him from services and disqualification from future employment.
The top court set aside the high court order noting procedural lapses in the inquiry proceedings and violation of principles of natural justice
