The Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the POSH Act, represents one of the most significant pieces of workplace legislation in independent India. Its roots trace back to the landmark 1997 Supreme Court judgment in Vishaka and Others v. State of Rajasthan, where a bench headed by Chief Justice J.S. Verma laid down binding guidelines to address sexual harassment at work. For nearly sixteen years, these Vishaka Guidelines served as the sole legal framework until Parliament enacted the POSH Act, which received presidential assent on 23 April 2013 and came into force on 9 December 2013.
Historical Context — The Vishaka Guidelines (1997): The Vishaka case arose from the brutal gang-rape of Bhanwari Devi, a social worker in Rajasthan who had attempted to prevent a child marriage. When the trial court acquitted the accused, women's rights organisations filed a public interest litigation before the Supreme Court. The Court, exercising its power under Article 32 read with Articles 14, 15, 19(1)(g), and 21 of the Constitution, held that sexual harassment at the workplace violates the fundamental right to gender equality and the right to life and livelihood. It laid down detailed guidelines that every employer was mandated to follow, including the establishment of a Complaints Committee, the definition of sexual harassment, and the obligation to take preventive steps. These guidelines functioned as binding law under Article 141 until the POSH Act superseded them.
Who Must Comply — Scope and Applicability: The POSH Act applies to every workplace, both in the organised and unorganised sectors, across public and private domains. Section 2(o) defines "workplace" expansively to include government departments, private sector organisations, NGOs, hospitals, educational institutions, sports bodies, dwelling places, and any place visited by an employee during the course of employment, including transportation provided by the employer. Crucially, under Section 4, every employer of a workplace with ten or more employees must constitute an Internal Complaints Committee (ICC). For workplaces with fewer than ten employees, or where the complaint is against the employer himself, the District Officer is required under Section 6 to constitute a Local Complaints Committee (LCC) at the district level.
Section 4 — Formation of the Internal Complaints Committee (ICC): The ICC is the cornerstone of the POSH framework. Section 4 prescribes that the ICC must consist of: (a) a Presiding Officer who must be a woman employed at a senior level in the workplace — if no senior woman employee is available, the Presiding Officer must be nominated from another office or administrative unit of the same employer; (b) not less than two members from amongst employees who are committed to the cause of women or have experience in social work or legal knowledge; and (c) one external member from an NGO or association committed to the cause of women, or a person familiar with issues relating to sexual harassment. At least one-half of the total members must be women. Members serve a term not exceeding three years. The external member is entitled to fees or allowances as prescribed. This composition ensures both internal accountability and external oversight, preventing any possibility of the employer unduly influencing outcomes.
What Constitutes Sexual Harassment — Section 2(n): The Act defines sexual harassment broadly under Section 2(n) to include any one or more of the following unwelcome acts or behaviour: physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; and any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. The Act also specifies implied or explicit circumstances that constitute harassment, such as a promise of preferential treatment in employment, a threat of detrimental treatment, interference with work, or creating an intimidating, offensive, or hostile work environment. This definition aligns with and expands upon the Vishaka definition.
The Complaint and Inquiry Process — Sections 9 to 14: An aggrieved woman may file a written complaint with the ICC within three months of the date of the last incident, extendable by a further three months if the ICC is satisfied that circumstances prevented timely filing. Section 10 provides for conciliation at the request of the aggrieved woman before initiating an inquiry, though no monetary settlement is permitted during conciliation. If conciliation fails or the woman does not request it, the ICC must proceed with an inquiry under Section 11, which must be completed within ninety days. During the inquiry, the ICC has the powers of a civil court under the Code of Civil Procedure, 1908 in respect of summoning and examining witnesses, discovery and production of documents, and any other prescribed matter. Upon completion, the ICC submits its findings and recommendations to the employer within ten days. If the allegation is proved, the ICC recommends action in accordance with the service rules, or where no service rules exist, action including written apology, warning, reprimand, withholding promotion, termination, or counselling.
Employer Obligations Beyond the ICC: Employers have sweeping obligations under Section 19, including: providing a safe working environment; displaying at conspicuous places the penal consequences of sexual harassment and the order constituting the ICC; organising workshops and awareness programmes at regular intervals; treating sexual harassment as misconduct under service rules; and ensuring that the ICC submits an annual report to the District Officer containing prescribed information. The annual report must include the number of complaints received, the number disposed of, the number pending for more than ninety days, the number of workshops conducted, and the nature of action taken by the employer.
Penalties for Non-Compliance — Section 26: Under Section 26, if an employer fails to constitute an ICC or does not comply with any provision of the Act, a penalty of up to fifty thousand rupees may be imposed for a first offence. For any subsequent offence, the penalty can be doubled, and in addition, the employer's licence or registration under any applicable law may be cancelled. This penalty provision underscores the legislative intent to ensure compliance is not treated as merely optional. Despite this, a 2023 study by FICCI and EY found that nearly 30 percent of Indian companies still lacked a properly constituted ICC, highlighting the gap between law and practice.
Practical Steps for Compliance — How Law Forum India Helps: Law Forum India, based in Bengaluru, works with organisations across Karnataka and beyond to establish end-to-end POSH compliance. Our services include: helping constitute a properly composed ICC that meets Section 4 requirements; conducting intensive training for ICC members covering inquiry procedures, natural justice principles, evidence handling, and report writing; running awareness workshops for all employees tailored to the organisation's sector and workforce profile; drafting and reviewing internal POSH policies that align with the Act and applicable rules; assisting with the preparation and filing of annual reports to the District Officer; and providing ongoing advisory support for complex cases. We firmly believe that compliance is not merely a legal checkbox but a cultural commitment to dignity at work.