Understanding the PoSH Act and Ensuring Governance
Series 2 – Perspective by Supreme Court/High Courts – illustrative case laws
Written By: Vasudevan V, Head, LAC, EFI
General Counsel & ICC Member for Smollan-HUL JV,
Certified Corporate Governance Professional &
Member of Core Advocacy Committee – Retailers’ Association of India (RAI)
I sincerely acknowledge and appreciate Advocate Bharat Goel, for his minute review of this series and value addition, to ensure that the readers get a better and holistically perspective on the subject matter.
“ Though there are number of organizations conscious about the need to adopt appropriate policies and comply with the provisions of the PoSH Act, the most pressing concern that I have found is the lack of training on legal knowledge among the Internal Committee Members (IC) for conducting of an inquiry. Members of IC are usually found unable to conduct inquiries or appreciate evidence or draft appropriate reports, or recommendations” – Ms Rekha Sharma – Chairperson – National Commission for Women
Hope the readers have gone through the series 1 of this article, covering the essential highlights of the PoSH law and its application to diverse industries.
This series 2 would cover the important definitions, including the judgments enunciated by the High Courts to understand the objectives and key definities of the PoSH Act, with a better perspective. For the sake of brevity only key excerpts are reproduced and the readers may review the relevant judgments, available on web.
1.0 . Factors to determine ‘Sexual Harassment’
Supreme Court of India
Apparel Export Promotion Council vs A.K. Chopra on 20 January, 1999
Quote: excerpts of SC’s Guidelines In Vishaka’s case
“2. Definition : For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as : (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually-coloured remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non- verbal conduct of sexual nature….”.
An analysis of the above definition, shows that sexual harassment is a form of sex discrimination projected through-
unwelcome sexual advances,
request for sexual favours and
other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her,
One of the contentious defence in this case was that only an attempt was made to sexually molest the employee. The High Court held that the Respondent did not “actually” molest Miss X but only “tried to molest her” and, therefore, his removal from service was not warranted. Hence the victim resorted to pursue her case with the Supreme Court. The Supreme Court in this context, affirmed that, in a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression “molestation”. The SC further held that :
- They must examine the entire material to determine the genuineness of the Complaint.
- The statement of the victim must be appreciated in the background of the entire case.
- The evidence of the victim must inspire some confidence, so as to enable Courts to reply upon the same.
- Such cases are required to be dealt with great sensitivity.
- Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance.
- The conduct of the respondent against his junior female employee, Miss X, was wholly against moral sanctions, decency and was offensive to her modesty.
- Reduction of punishment in a case like this is bound to have a demoralizing effect on the women employees and is a retrograde step.
- There was no justification for the High Court to interfere with the punishment imposed by the departmental authorities.The act of the respondent was unbecoming of good conduct and behavior expected from a superior officer and undoubtedly amounted to sexual harassment of Miss X.
- The punishment imposed by the appellant, was, thus, commensurate with the gravity of his objectionable behavior and did not warrant any interference by the High Court.
There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India.
High Court of Delhi
Shanta Kumar v. CCSIR (CDIR) and others, 2018 LLR 8
In the above matter, Delhi High Court held that a physical contract or advances, undoubtedly, would constitute sexual harassment provided the same is sexually determined behaviour. Mere accidental physical contact, even though unwelcome, would not amount to sexual harassment. Physical contact having no undertone of a sexual nature and not occasioned by the gender of the complainant may not necessarily be sexual harassment. Though the accused might have held the complainant’s arm and thrown the material in her hand, in a fit of anger, the incident may be a case of harassment and deplorable but it would not be termed as sexual harassment.
2.0. Extended Meaning of ‘Sexual Harassment’
High Court of Madhya Pradesh
Global Health Private Limited vs. LCC District Indore & Others, 2020 LLR 40
The terms ‘meaning’ and ‘expressions’ have been defined that when the word ‘includes’ is used in the definition, the legislature does not intend to restrict the definition; it makes a definition’s scope and dimension of term; sexual harassment at workplace’ as per provisions of section 2(n) and 3(2) of the PoSH Act, observing that scope and dimension of this term must not receive narrow and pedantic meaning since it includes an act of violation of human rights. The word ‘includes’ makes a definition of enumerative but not exhaustive. Provision of the Act required to be interpreted broadly and liberally to achieve its aims and objectives.
It is significant to highlight that in this matter, the High Court awarded Rs. 25 lakhs as compensation to the complainant for loss of her reputation, emotional distress and deprivation of right to live with dignity. Such a heavy compensation was owing to the failure on the part of the management to address the Complainant’s case of sexual harassment. Inspite of the Complaint to the Managing Director of the Medanta Hospital, of the harassment and humiliation faced by her from the Medical Superintendent, the Managing Director asked her to bridge the gap with the Medical Superintendent, implying that she should compromise with the Medical Superintendent. The Compensation was awarded for pain and suffering, loss of reputation, emotional distress and loss of salary for 18 months.
3.0. Who is an “aggrieved woman”?
The PoSH Act defines that, unless the context otherwise requires- “aggrieved woman” means-
i. in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
ii. in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;
4.0. Respondent may include the same gender!
“Respondent” means a person against whom the aggrieved woman has made a complaint under section 9; the term respondent does not mean it should be only against a man, but it could as well be the same gender, i.e., woman.
High Court of Calcutta
Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College and Ors, 27th November 2020 (Source: POSH at Work)
The question that arose for consideration was whether a complaint filed against a ‘Respondent’ who is of the same gender as the Complainant is valid. In this case, the gender of the complainant and the respondent was the same.
In the above case, the High Court held that:
✔ A cursory glance at Section 2(m) of the 2013 Act shows that the term
“respondent” brings within its fold “a person”, thereby including persons of all genders.
✔ There is nothing in Section 9 of the 2013 Act (on filing a complaint of sexual harassment) to preclude a same-gender complaint under the Act.
✔ Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized.
✔ Definition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective. Sexual harassment, as contemplated in the 2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act.
✔ A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.
✔ Similarly, if Section 3 (2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se.
5.0. Concept of “Workplace” and jurisprudence
The definition “workplace”, inter alia, includes any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment. The workplace in a practical sense does not remain static, or just confined to a physical workspace and literally revolves around the women who is employed. Therefore, the definition “workplace” has to be considered wide, as has been held by various High Courts.
High Court
Brief interpretation Reference
Delhi HC …“A narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression office”, the court observed”.
In Saurabh Kumar
Mallick v. The CAG of
India & Anr, (2008)
Bombay HC
(Nagpur)
…..”This definition (workplace) is inclusive and again deliberately kept wide by the Parliament to ensure that any area where women may be subjected to Sexual Harassment is not left unattended or unprovoked for. Its Clause (v) highlighted by us above shows even an artificial extension thereof and it may include workplace of other employer. Section 2(p) defining “unorganized sector” in relation to a workplace also brings out this intention. This wide canvass brings to fore the intention to provide protection and Jaya Kodate v/s Rashtrasant Tukdoji Maharaj Nagpur University (2014) prevention at all possible workplaces where either Aggrieved Woman works or may be or visit in connection with her duty or the Respondent is at work. Hence any Woman at her workplace cannot be disrespected by anybody but similarly, she cannot also be disrespected when she is at the workplace of the Respondent. Section 19 dealing with the duties of employer mandates that every employer has to provide a safe working environment for a woman at the workplace which includes even safety from the third persons coming into contact with her at the workplace. Clause (h) of Section 19 is also conducive to this interpretation.
6.0. Respondent has a right to cross examine the complainant denial of such opportunity violates natural justice
Delhi High Court
Manjeet Singh vs. Indraprastha Gas Limited
WP (Cri) 6352/2016 www.bombaychamber.com
…The Complainant’s version of sexual harassment was not corroborated by any witness. Opportunity was not given for proper cross examination of the witnesses. It cannot be reduced to a verbal duel of mutual allegations.
The factual inferences and the conclusions drawn by the ICC were not supported by evidence and hence cannot be sustained. The investigation was carried out in violation of the principles of natural justice. Adherence to natural justice is the foundation of all such investigations.
7.0. Fundamental rights of a Woman
Supreme Court
Civil Appeal No.1809 of 2020 Punjab and Sind Bank & Ors.,
Sexual harassment, being offensive to human dignity, human rights and gender equality, has emerged as a fundamental crisis the world over. … Sexual harassment at the work place is an affront to the fundamental rights of a woman, the Supreme Court remarked in Civil Appeal No 1809 of 2020 titled Punjab and Sind Bank & Ors.
-THE END-
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