[Amendment, Sexual Harassment, Constitution, Corporate Law, Criminal Law, Corporate Crime, Human Resources]

On February 2, 2024, a bill was introduced before the Rajya Sabha, which proposed an amendment to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act 2013). This Amendment aims at making justice more accessible. The PoSH act is a piece of protective legislation, it aims at preserving the dignity of women and protecting the fundamental rights. The legislation collectively wants to achieve the goals of Article 21, as well as, extend equal opportunities to all at their workplace, which is in essence a key and vital component of Article 14 & Article 16 of the Indian constitution.

The PoSH act which was implemented in 2013 by following the Vishakha guidelines that were addressed in the case Vishakha and Others vs. the State of Rajasthan in 1997. This act was introduced to address the cases of continuous sexual harassment, non comfortable communication, visual and mental torture at workplaces. The act provided proper guidelines for preventing Sexual Harassment and also to mandate the employers to conduct awareness programs and sensitization training. The enactment of the act not only ensured a safe and respectful environment, but also aimed at improving productivity and outlining the correct remedies and redressal to the victims.

The recent proposal to amend the PoSH act highlighted two important issues:

1. Three month timeline within which a complaint should be raised under section 9 of the PoSH act.
2. Aggrieved woman having an option to opt for a conciliation process prior to inquiry under section 10.

The Amendment bill proposes to amend the 3 month timeline to a period of 1 year. The extension of timeline may prove to be beneficial to an aggrieved woman. Several studies have found that many people facing sexual harassment fear the thought of recounting their experiences immediately after their traumatic experience. The extension aims at prioritising the aggrieved women's mental health before filing a formal complaint. An issue which may arise due to the extension would be the difficulty in conducting an inquiry on the situation which might have taken place over a year ago. This would make collecting evidence and taking testimony more difficult than it actually is, as memories may fade and the efficiency of evidence may get compromised over time.

The Amendment Bill 2024 also aims at omitting section 10 of the act which refers to the conciliation process. The informal process aims at amicably settling the complaint between the aggrieved woman and the respondent. The removal seems like an ideal option is the pressure the aggrieved woman may face and being influenced or coerced into conciliating the matter. This would be important in preserving the integrity of the complaint resolution process. The conciliation process, however, does not allow for monetary settlement through this process, it's aim is to find a resolution for the complaint of sexual harassment without going through a socially, mentally and physically straining process. This would also make the process extremely lengthy and minor complaints would undergo a full inquiry, causing severe delays in getting justice.

These amendments are progressive in nature and will make the corporate field a safe and respected space in the coming years, A revolutionary addition to the PoSH Act would be incorporating a Gender-neutral policy and including an inclusive nature of the act, which does not simply limit the act to women but includes people irrespective of their gender identity.

The SC in the recent order in the Supreme Court of India in the case of Binu Tamta & Anr. Versus High Court Of Delhi & Ors., refused the request made to direct that "sexual harassment" be defined in gender-neutral terms to bring within its ambit acts of sexual harassment committed by respondents of the same sex. It was contended that addressing sexual harassment with a gender inclusive language, the PoSH law will be made gender neutral and applicable to the LGBTQIA+ community and cater to the needs of a larger part of society.

The rejection of the said request not only prevents access to justice to the LGBTQIA+ community, but also is in clear violation of Article 14 of the Indian Constitution, preventing the constitutional right to equality and equal protection under the law. The act should aim to protect all the employees, regardless of their gender identity or expression, from sexual harassment. This would highlight a commitment of the policy to maintain a safe and respectful environment for everyone.

A lot would depend on the parliament for the proposed Amendment Bill to pass the legislative scrutiny and become a law. The PoSH act has played a crucial role in raising awareness and providing remedies for victims of sexual harassment in India. Even if the proposed amendments do not come to fruit, they still suggest the willingness of the government to bring in certain changes in the POSH Act to make it more relevant for the organisations or workplaces to create a safer workplace environment for women.

Written By: Arya Mitkari