This document provides a critical analysis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 in India. It summarizes the key differences between the guidelines established in the Vishaka judgment and the provisions of the 2013 Act. It also outlines some drawbacks of the Act, including the fear of retaliation preventing many women from reporting harassment, limited recourse for those in the informal sector, and a lack of compliance audits and governmental scrutiny to properly enforce the Act.

1. SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE (PREVENTION,
PROHIBITION AND REDRESSAL) ACT
2013- CRITICAL ANALYSIS
Name: Isha
Class: BBA LLB 7
Enrollment No.: 02519103519

2. INTRODUCTION
◦ Sexual harassment is widely recognized as an emotional misbehaviour that creates an
atmosphere of unhealthy, unproductive results in the workplace, and has long been recognized
around the world as the most horrific form of violence.
◦ Defining all forms of sexual harassment is not easy. As according to the PoSH Act, Sexual
harassment includes “any one or more” of the following:
◦ “Unwelcome acts or behaviour” committed directly or by implication- Physical contact and
advances.
A demand or request for sexual favours
Sexually coloured remarks
Showing pornography
Any other unwelcomed physical, verbal or non-verbal conduct of sexual nature.

3. ◦ Additionally, the POSH Act mentions five circumstances that amounts to sexual harassment:
Implied or explicit promise of preferential treatment in her employment;
Implied or explicit threat of detrimental treatment;
Implied or explicit threat about her present or future employment status;
Interference with her work or creating an offensive or hostile work environment;
Humiliating treatment likely to affect her health or safety.

4. BACKGROUND
◦ Before the bill was introduced, in 1992, Bhanwari Devi, a rural reform advocate, was hired as a
satin (friend) by the state of Rajasthan to work to prevent the practice of child marriage.
◦ In the course of her work, she prevented the marriage of an-year-old girl in the community.
◦ Her work met with anger and harassment from men in that community.
◦ Bhanvari Devi reported this to local authorities but nothing was done.
◦ This omission came at a great price, and she was subsequently raped by those men.
◦ Based on the facts of the Bhanwari Devi case, her PIL against Rajasthan and the Union of India
was filed by Vishaka and other women's groups in the Supreme Court of India.

5. ◦ As a result, in 1997, three judges of the Supreme Court of India issued a landmark judgment
commonly referred to as the Vishaka judgment.
◦ This ruling must be followed by all foundations when it comes to preventing and correcting
sexual harassment.
◦ The ruling was the first to recognize and define sexual harassment of women in the workplace.

6. Vishaka Guidelines vs. The Sexual Harassment of
Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013
Vishaka Guidelines The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act,
2013
Preventive Steps - Duty of the Employer or other
responsible persons in work places and other
institutions to prevent or deter the commission of acts
of sexual harassment and to provide the procedures
for the resolution, settlement or prosecution of acts of
sexual harassment.
As regards private employers steps should be taken to
include the aforesaid prohibitions in the standing
orders under the Industrial Employment (Standing
Orders) Act, 1946.
An Act to provide protection against sexual
harassment of women at workplace and for the
prevention and redressal of complaints of sexual
harassment and for matters connected therewith or
incidental thereto.

7. Definition: For this purpose, sexual harassment includes
such unwelcome sexually determined behavior (whether
directly or by implication) as:
1. Physical contact and advances;
2. A demand or request for sexual favours;
3. Sexually coloured remarks;
4. Showing pornography;
5. Any other unwelcomed physical, verbal or non-
verbal conduct of sexual nature.
Section 2 (n) Sexual Harassment includes any one or more
of the following unwelcome acts or behaviour (whether
directly or by implication) namely: -
1. Physical contact and advances; or
2. A demand or request for sexual favours; or
3. Making sexually coloured remarks; or
4. Showing pornography; or
5. Any other unwelcome physical, verbal or non-verbal
conduct of sexual nature.
Any of these acts is committed in circumstances where
under the victim of such conduct has a reasonable
apprehension that in relation to the victim's employment
or work in Government, public or private enterprise such
conduct can be humiliating and may constitute a health
and safety problem.
Section 3(2) The following circumstances, among
other circumstances, if it occurs or is present in relation
to or connected with any act or behaviour of sexual
harassment may amount to sexual harassment: -
1. Implied or explicit promise of preferential treatment in
her employment; or
2. Implied or explicit threat of detrimental treatment in
her employment: or
3. Implied or explicit threat about her present or future
employment status; or
4. Interference with her work or creating an intimidating
or offensive or hostile work environment for her; or
5. Humiliating treatment likely to affect her health or
safety

8. Workplace
While the “workplace” in the Vishaka Guidelines is
confined to the traditional office set-up where there is
a clear employer-employee relationship
“Workplace” in the Vishaka Guidelines is confined to
the traditional office set-up where there is a clear
employer-employee relationship while in Section 2 (o)
& 2 (p) of Act "workplace" and unorganized sector
goes much further to include organisations,
department, office, branch unit etc. in the public
and private sector, organized and unorganized,
hospitals, nursing homes, educational
institutions, sports institutes, stadiums, sports
complex and any place visited by the employee
during the course of employment including the
transportation.
Complaint Mechanism:
Should ensure time bound treatment of complaints.
Section 9 (1): Any aggrieved woman may make, in
writing, a complaint of sexual harassment at
workplace to the Internal Committee if so constituted,
or the Local Committee, in case it is not so
constituted, within a period of three months from
the date of incident
Section 11 (4) Internal Committee or the Local
Committee is required to complete the inquiry within
a time period of 90 days.

9. Complaints Committee:
The Complaints Committee should be headed by a
woman and not less than half of its member
should be women.
Further, to prevent the possibility of any undue
pressure or influence from senior levels, such
Complaints Committee should involve a third
party, either NGO or other body who is familiar
with the issue of sexual harassment.
Section 4 (2) of Act the Internal Committee shall
consist of the following members to be
nominated by the employer, namely: -
1. A Presiding Officer who shall be a
woman employed at a senior level at
workplace from amongst the
employees.
2. Not less than two Members from
amongst employees preferably
committed to the cause of women or
who have had experience in social
work or have legal knowledge.
3. One member from amongst
nongovernmental organisations or
associations committed to the cause of
women or a person familiar with the
issues relating to sexual harassment
Provided that at least one-half of the total Members
so nominated shall be women

10. DRAWBACKS OF THE ACT
Fear of Retaliation:
◦ Women tend to refrain from reporting incidences of workplace harassment in fear of retaliation
by the harasser or the organization. Most feel that raising their voice against the perpetrator
may lead to social stigma, embarrassment and even further harassment.
◦ The Act is silent on the aspect of preventing such retaliation. Section 12 lists a set of actions that
may be taken by the employer during the pendency of the inquiry. These include transfer of the
aggrieved woman, granting her leave for a period up to three months or any other relief
suggested. However, there seems to be a lack of measures to promote a healthy environment
and secure the working conditions of the woman in case she chooses to continue her tenure in
the same place as the incident.
◦ Section 19 of the Act lays down an extensive list of duties of the employer, but fails to establish
a responsibility to ensure that the complainants are not stigmatized or harassed.

11. Limited Recourse for the Informal Sector
◦ A study published by Human Rights Watch in 2020 extensively lists out how the Act has failed women
in the informal sector. The 62-page report details how these employees (domestic workers,
agricultural workers, factory workers etc.) feel like their incidences of sexual harassment are ‘trivial’
and are better ignored rather than participate in a drawn out justice process that often tends to fail
them. This is especially disheartening considering that the Act has made provisions to accommodate
for complaints made by women working in the informal sector.
◦ The State Government, though its district officer or collector is required to form a local committee at
the district level or the block level that will deal with such complaints. The failure thus lies in the
implementation of these provisions in a fair manner. Workers complain that there is a lack of access to
remedies and limited awareness amongst employees as to the different avenues available for
redressal of issues.
◦ Even if one is aware of the process, they are fearful of the social stigma, embarrassment and
harassment they may face from employers, local authorities and even committee members. In the
event that they are successfully able to raise the issue, they are often threatened with false complaints
from the employer, threats and pressure from the police.
◦ In most of these cases, the women are the bread-winners and cannot afford to lose their job for fear
of not being able to support their families. Hence, they choose to stay silent and bear the lewd
comments, invasive questions and propositions of sexual favors in fear that the cost of speaking out
may be too much to bear.

12. Compliance Audit and Governmental Scrutiny
◦ Sections 21, 23, 24 and 25 of the Act place a responsibility on the Government to monitor the
working of the Internal Committees, Local Committees, Employers as well as all aspects of the
implementation of the Act.
◦ They are required to encourage awareness and maintain data on the number of cases filed and
disposed with relations to sexual harassment at the workplace.
◦ Monitoring is a critical yardstick to measure the compliance of the involved pasties as well as
highlighting the grey areas that may require further introspection.
◦ In the absence of such scrutiny, it is possible that the responsible parties that fail to abide by
their obligations may face no penalty for doing so.
◦ It also eliminates the ability to analyze the shortcomings of the law, thereby reducing its
efficiency.
◦ Therefore, it may be fair to attribute some part of the failure of the Act to the lack of review and
supervision of the Government agencies.

13. Procedural and Technical Drawbacks of the Act
◦ The Act also contains certain technicalities that prevent the true realization of the intent of the Act.
For instance, Section 9 prescribes that a victim of sexual harassment has to make a complaint within a
period of three months from the date of the incident.
◦ This may be extended to a further 3 months if the Committee is convinced of the existence of certain
instances that prevented the victim from filing the complaint within the prescribed time period.
◦ The Act also fails to provide for an option to make anonymous complaints. These provisions create an
uneasy atmosphere that does not sufficiently accommodate for the gravity of the instances of sexual
harassment.
◦ Such acts are an insult to dignity and may require time to sufficiently understand and comprehend.
The victim may require strength and time to muster the courage to speak out against the perpetrator
which may take days, weeks or months. Even if the victim is ready to complain, there is a high chance
that the fear of being named prevents them from coming forward due to the shame, embarrassment
and stigma that they may face.
◦ A strict interpretation of these provisions, as is the trend followed by Courts, prevents the delivery
justice on the grounds of mere procedural inconsistences. This defeats the purpose of the Act which
is to encourage safe reporting, social protection and accurate redressal of issues. Therefore, it is the
need of the hour for these technicalities to be addressed to be made more lenient.

14. SOME RECENT IMPORTANT
DEVELOPMENTS
In sexual harassment cases, courts should not apply service rules in a hyper technical
manner
◦ In a recent case, which involved allegations of sexual harassment of a Junior colleague by a BSF
constable, the Security Force Court (Internal Committee) of the BSF, had found the constable
guilty of sexual harassment. The High Court, in appeal, invalidated the entire proceedings
because it found that the original enquiry report had mentioned the wrong date of the
occurrence of the event. Asking for an additional enquiry report was beyond the BSF Rules.
◦ In this context, the Supreme Court said that as it takes a lot of courage for a subordinate to file a
complaint of sexual harassment against their superior, courts should not apply the
organization’s service rules in a hyper-technical manner and invalidate sexual harassment
proceedings. The Supreme Court restored the punishment of the constable. It said that courts
should interpret rules about sexual harassment at the workplace in a manner that provided
substantive justice to the parties.

15. Confidentiality of sexual harassment proceedings does not mean that perpetrators will not
be held responsible
◦ A few months ago, the Bombay High Court laid down guidelines on conducting hearings,
passing orders, and reporting of sexual harassment cases. The High Court said that they would
hear such cases either “in camera” (without the press or the general public) or in the judge’s
chamber. Media can only report on such cases with the judge’s permission.
◦ They also stated that any violation of the guidelines would amount to contempt of court. An
appeal challenging these guidelines is pending before the Supreme Court. The intention behind
these guidelines was to protect the identities of the survivors of sexual harassment.
◦ However, the restrictions on accessing the orders and judgements in a case of sexual
harassment, and the blanket ban on any kind of reporting about the case end up benefitting the
perpetrator more than the survivor of sexual harassment. Granting secrecy to the perpetrator
even after the court case has finished and they have been found guilty (or allowing media to
report on it only with the Court’s permission) prevents exposure of perpetrators. They can
continue their pattern of abuse and harassment.

16. POSH Act applies to girl students of a school
◦ In the most recent case the Calcutta High Court held that female students in a school are
included in the definition of “aggrieved woman” as per Section 2(a) of the POSH Act.
◦ Complaints of such students related to sexual harassment should be heard by an Internal
Complaints Committee set up by the school. While schools and universities may not be the
workplace of girl students, they are certainly the workplace of teachers. The POSH Act requires
every organization, public or private, to set up an Internal Complaints Committee (ICC).
◦ So, once there is a sexual harassment complaint, it has to be dealt with by the ICC, irrespective
of whether the “aggrieved woman” (in this case the student) is employed at the workplace or
not.
◦ This broad interpretation of the application of the POSH Act creates more avenues for sexual
harassment survivors to seek redressal.

17. If a workplace has a gender-neutral policy, both the aggrieved person and the respondent
could be either women or men
◦ The Calcutta High Court has said that same-gender complaints are permitted under the law on
sexual harassment at the workplace. The Court held that people of the same gender can
complain of sexual harassment against each other. A person of any gender can commit acts of
sexual harassment at the workplace.

18. CONCLUSION
“Safe workplaces are a right, not a privilege.”
Almost 24 years ago, the Supreme Court issued guidelines to prevent sexual harassment of women in
the famous Vishakha judgement. In 2013, the Parliament enacted the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Yet, even now, it is not clear
how effective it has been to combat the evil of sexual harassment, especially for women in the informal
sector. The world is changing and so must the laws for women.
Many incidents of sexual harassment at workplaces never see the light of day despite the availability of
legal recourse, for multiple reasons. To encourage better reporting, the legislation must provide clarity
regarding better applicability, accountability, implementation and monitoring.
Employers and authorities stand to benefit from high workplace productivity; however, this is only
possible by adapting, implementing and encouraging best practices for detecting and responding to
workplace harassment. At the end of the day, all parties must actively support initiatives to increase
awareness and encourage efforts to prevent such unfavourable working conditions.