By Anuradha Gandhi and Isha Sharma
‘Just as we celebrate a decade of the POSH Act being legislated, it is time to look back and take stock of the manner in which the mandate of the Act has been given effect to’, as rightly said by Bench of Hon’ble Justice Mr. AS Bopanna and Hon’ble Justice Ms, Hima Kohli.
There have been numerous cases which reflected the glaring defects and the procedural lapses in the inquiry proceedings pertaining to sexual harassment complaints. But the case of Aurelino Fernandes vs. State of Goa and others remarked a crucial judgment as it resulted in passing of the much-needed guidelines which will aid in implementation of the Sexual Harassment of Women at Workplaces Act, 2013 also referred to as the POSH Act.
While hearing an appeal filed by Aurelino Fernandes, former head of the Department of Political Science, challenging an order of the High Court of Goa imposing upon him a penalty of dismissal of services and disqualification from the future employment, the Hon’ble Supreme Court took due note of the serious lapses in the enforcement of the POSH Act even after such a long time and referred to it as a “sorry state of affairs”.
The Court also referred to the lack of Internal Committees as well their proper constitution in so many sporting organizations, which was brought to the fore recently by a National daily newspaper, which reflects poorly on all the state functionaries, public authorities, private undertakings, organisations and institutions that are duty bound to implement the POSH Act in letter and spirit as well.
The Court also brought into notice as to how important it is to create awareness on the import and working of the POSH Act in order to strictly adhere to the enforcement regime.
Apex Court Issues Guidelines for POSH Implementation
The Apex Court availed this opportunity to raise concern over the lack of enforcement and non-implementation of the POSH Act and issued the following guidelines Government for achieving the objective behind enacting the POSH Act in real terms:
1. The Union of India, all State Governments, and Union Territories are directed to undertake a time-bound exercise to verify as to whether all the concerned Ministries, Departments, Government Organisations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, as the case may be and that the composition of the said Committees are strictly in terms of the provisions of the POSH Act.
2. To ensure that the relevant information of the ICCs/LCs/ICs, as the case may be, are readily available on the website of the concerned Authority/Functionary/Organization/Body, and updated regularly as the case may be, which includes:
- Constitution and composition;
- Email ids;
- Contact numbers of the designated person (s);
- Procedure for filing an online complaint; and
- Relevant rules, regulations and internal policies.
3. A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals) by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes.
4. Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the Report submitted.
5. The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women’s groups about the provisions of the Act, the Rules and relevant regulations.
6. The National Legal Services Authority (NALSA) and the State Legal Services Authorities (SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar.
7. The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules.
8. With a copy of this judgment transmitted, it shall be the responsibility of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued.
9. With a copy of this judgment transmitted, it shall be the responsibility of the Director of National Judicial Academy, NALSA, Chairperson, Bar Council of India, Registrar Generals of all the High Courts, Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Chartered Secretaries and the Engineering Council of India, to ensure implementation of the directions issued.
10. A copy of this judgment shall be sent to the Member Secretaries of all the State Legal Services Authorities and to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective states to comply with these guidelines.
11. A copy of these guidelines so issued shall also be transmitted to all the State Bar Councils and the State Level Councils, as the case may be.
12. The Union of India and all States/UTs have been given a timeline of 8 weeks for reporting their compliances.
The Hon’ble Supreme Court has issued these wide guidelines covering professional and statutory bodies so as to regulate the implementation of the POSH Act at all levels.
The court has sought to fast forward the implementation of this Act which had reached a position of null and was being sidelined in majority of organisations. The same was brought into limelight when the National daily newspaper following the wrestler’s protest conducted the study and survey sharing startling revelations.
 Civil Appeal No. 2482 of 2014
Government Notifications for POSH Compliance- India