PoSH Act: 11 Key Notes From Judgments In Sexual Harassment Cases Since 2013

Written by: Pallavi Pareek

In its five years of implementation, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, has provided fascinating insights into how Indian workplaces manage, control, and often ignore gender-based conflicts.

This relatively new piece of legislation has ample room for improvement. Like any other law, its jargonistic text does not allow for everyone to understand all the layers of its intent and application in various scenarios in real-life situations. As the adoption of the law and its guidelines increase, so does the opportunity to have a better understanding of its various provisions.

In this article, I have put together 11 important judgments that have provided clarity on the intent and aspects of this law that every Committee and Employer must comply with.

What Constitutes As Sexual Harassment

1) When Court clarified that not all physical forms of contact from a man towards a woman can be construed as sexual harassment. It went on further to state that it is crucial to gauge the undertone and intent of sexual nature to qualify a physical contact/advance as sexual harassment (in comparison with mere harassment). Read further on Shanta Kumar v. Council of Scientific and Industrial Research (CDIR) & Ors, Delhi High Court ((2018) 156 FLR 719)

2) When Court clarified that a verbal statement from a man towards a woman with a negative undertone alone cannot suffice as a complaint of sexual harassment. It further stated that if such complaints are entertained by the Committee then it will be difficult for performance reviews to happen fairly and eventually between a male supervisor and his female colleagues. Read further on K.P. Anil Rajagopal v. State of
Kerela, Kerela High Court ((2018) 1 KLJ 106)

3) When the Court stated that sexual harassment at the workplace can also mean a hostile and oppressive work environment for a woman employee when power and authority from a male member of the organization are being used to force her to accompany him on his outstation travels and late-night meetings. Read further on Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust and Ors. (2015 SCC OnLine Del 11026)

What The Internal Committee Can/Cannot Do

4) When the Court clarified that a Committee can initiate an investigation on the basis of a complaint forwarded/received by other sources of authority as long as the Complainant agrees to take the matter forward with them. Read further on Shital Prasad Sharma v. State of Rajasthan and Ors. (2018 SCC OnLine Raj 1676)

5) When the Court clarified that a Committee must not halt or end its investigation if the Complainant chooses to initiate parallel proceedings with any other forum for redressal. The Committee has to independently conduct its investigation as per the due process of the law. Read further on Sarita Verma v. New Delhi Municipal Corporation & Ors, (2016 LLR 785 (2))

How To Go About A PoSH Investigation

6) When the Court provided further clarity on the qualification of the External Member of a Committee and the qualifications of the internal members from the organization. It stated that an external member is not qualified by a degree of belonging to a profession or an organization working in a related field but must possess expertise in the field of workplace sexual harassment. Read further on Ruchika Singh Chhabra v. Air France India and Anr. (2018 SCC Online Del 9340)

7) When the Court provided clarity on the approach towards preliminary inquiry and formal investigation. Several Internal Committee upon receipt of a complaint does not take note of various guidelines of the investigation such as documentation, quorum, timeliness, confidentiality and more. The Court through this judgment stated that the preliminary inquiry must follow all the guidelines of the formal investigation. Read further on Sibu v. Air India Limited, ((2016) 2 KLJ 434)

Justice, Compensation and Documentation In PoSH

8) When the Court emphasized the importance of adherence to principles of natural justice – being applicable to both parties (Complainant and Respondent). At times Committee members become biased and extend a partial and biased behavior towards a specific party. Under this, cross-examination is a right provided to both parties and committees must ensure adherence to this. Read further on Avinash Mishra v Union of India (Delhi High Court, 2014 (215) DLT 714)

9) When the Court upheld the misuse of the rights provided to women under this law and levied a fine of INR 50,000 on the Complainant for filing a false complaint. A very important element provided in the law to ensure the prevention of misuse under this law. Several organizations fail to educate their employees on this and various Internal Committees do not initiate investigations when they conclude a frivolous complaint. Read further on Anita Suresh vs. Union of India & Ors in W.P.(C) 5114/2015

10) When the Court provided clarity on the importance of a detailed Final Report prepared by the Committee members. It further stated that a Committee’s report should not contain mere decisions of the members in the investigation but must also provide the basis and rationale for the same. Read further on Ashok Kumar Singh v. University of Delhi (Delhi High Court WP 7371 of 2016)

11) When the Court provided clarity on maintaining the impartial and unbiased investigation approach during the proceedings. It further stated that individual members of the Committee investigating a certain matter if and when are under the supervision or direct authority of either of the parties, an impartial and fair investigation is difficult to achieve. Read further on M. Rajendran v. Daisyrani and Others ((2018) 3 MLJ 84)

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