Initiatives for Inclusion Foundation v. Union of India

5. In addition to these detailed directions, a few aspects relating to the effective implementation of the POSH Act highlighted in the present writ petition, require our attention. Authorities responsible for the implementation of the POSH Act

6. The POSH Act is comprehensive, and a code in itself, for prevention, punishment and redressal of sexual harassment complaints. It takes the remit of the remedy envisaged in the Vishaka Guidelines beyond the State and public functionaries, to a larger, much wider scope of ‘employee’4 and ‘employer’5

4 Section 2(f) reads as follows: “(f) "employee" means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name”

(i) in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;

(ii) in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace. than any other legislation. As a result, it comes too, with its own challenges for effective implementation. Anticipating this, the Act provides for a tiered-model for its functioning, and in turn for monitoring of its implementation.

7. Each employer is legally mandated to constitute an ICC under Section 4. To address the gaps where there is no ICC (i.e., for those working in a workplace that employs less than 10 workers or where the employer themselves are the respondent), the Act provides for an LC in each district, which is to be constituted by the District Officer under Section 6. The District Officer is also tasked with designating a nodal officer in each block, taluka, and tehsil in rural or tribal area, and ward or municipality in the urban area, to receive complaints and forward the same to the concerned LC.[6] These nodal officers are meant to be the first point of contact in that sense, especially in situations where there is no ICC constituted. The ICC or LC after conducting inquiry (or recording settlement[7] if such is the case), has to in its inquiry report recommend to the employer, or District Officer, respectively, what action is to be taken against the respondent (or in the situation of a false/malicious case[8], against the complainant), in each case.[9]

8. The Petitioner has pointed out that there is a lack of clarity as to the District Officer’s role in relation to the annual reports contemplated under Section 21 and 22. A reading of these provisions together offers some clarity: both the ICC and LC prepare annual reports and submit it either directly (in the case of the LC) or through the employer (here, the ICC), to the District Officer.10 While Section 21(1) does not mention the ICC report being forwarded Explanation. —For the purposes of this sub-clause “management” includes the person or board or committee responsible for formulation and administration of polices for such organisation;

(iii) in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;

(iv) in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;”

10 Section 21(1) of the POSH Act. to the District Officer, Section 22 right after, states that the employer is mandated to mention in its report the number of cases lodged and disposed (if any), and even in the absence of a report it must intimate the numbers to the District Officer.11 Further, it is the District Officer, in turn, who submits a brief report to the State Government.12

9. The appropriate government [defined under Section 2(b)], is responsible at the last level, to monitor the implementation of this Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace.13 It is also obligated to take measures to publicise the Act.14 Another built-in safeguard in the framework is that the appropriate government is empowered to call for information and inspection of records15 wherein it may call upon an employer or District Officer to furnish in writing any information relating to sexual harassment it may require, or produce any record required by an officer authorised to carry out an inspection.

10. What is wholly apparent from this outline of the scheme of the Act, is that the role of the District Officer, is pivotal; they are responsible for numerous aspects in the implementation of the Act. It is where the buck stops, so to say, in terms of coordination and accountability relating to the POSH Act. Even in terms of payment and fees – the District Officer is responsible for payment of allowances to the Chairman and members of the LC16, which it receives from the agency set up by the State Government (ref: Section 8 of the Act). Interestingly, the District Officer also performs a duty in terms of enforcement; under Section 13, if the respondent in any case fails to pay any sum so directed, the ICC/LC can forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.17

11. Section 5 stipulates that:

And Chapter VII, titled ‘Duties and Powers of the District Officer’ states under Section 20:

While the language used in Section 5 is ‘may’, the context of the statute – as elaborated above, and specifically Section 20 (which uses ‘shall’ and obligates the District Officer to perform pivotal functions) makes it quite clear that the District Officer, is the most important functionary in the system, tasked with keeping the redressal and monitoring framework both intact, and smoothly running. In one of the first cases on the interpretation of ‘may’, this court in State of Uttar Pradesh v. Jogendra Singh18 held: “There is no doubt that the word "'may" generally does not mean ‘must’ or ‘shall’. But it is well settled that the word "may" is capable of meaning "must" or ‘shall’ in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word ‘may’ which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive.” Treating Section 5 as directory, would leave a gaping hole in the otherwise clearly delineated workflow and redressal mechanism, and the efficacy of this legislation, as a result, falls flat. 18 [1964] SCR (2) 197

12. We have perused the replies/affidavits filed by numerous states pursuant to receiving notice; seen together, they are marked by a lack of uniformity in terms of implementation of the Act. Numerous states have tried to force-fit the institutional requirements of the Act, within their existing bureaucratic frameworks (for instance, some states have assigned its implementation to departments other than their Women and Child Development Ministry, like the departments dealing with Social Welfare, Social Security, Legislative Affairs, etc.). The affidavit filed by the petitioner in response to the replies by the States, highlights the many lacunae and lack of uniformity in the implementation of the POSH Act, by various state governments. District Officers were in most states notified after notice of this writ petition was served on them, and even among those states that have taken action – they have simply notified a specific post as District Officer, without providing any specific details of the officers, their contact information, etc. Most states have failed to provide documentation on constitution of LCs, and even those who have, many have not constituted one in each district. Only a handful of states have provided any details of ‘nodal officers’– but even among these, the nodal officers are specific posts notified, and not individuals at every taluka, ward, municipality, etc. as contemplated under Section 6(2). The information on annual reports is perhaps most alarming– only three have provided a consolidated report (relying on differing sources, or just the LCs). Each State, has notified a different Ministry as the ‘nodal’ ministry for implementation of the Act – some have notified the Social Welfare Ministry or its allied departments, while others rely on the Women and Child Development department.

13. The general thrust of the affidavits, especially that of the Union of India – has been to highlight the generation of awareness through a massive publicity campaign and issuance of advisories, publication of handbooks, etc. However, it is quite plainly clear that though the generation of awareness is necessary, if a woman suffers sexual harassment at the workplace – the framework for redressal has to in fact exist. The failure to notify district officers specifically, has a snowballing effect on appointment of the LCs and nodal officers, in addition to other aspects. The complaint mechanism, and larger framework - no matter how effective, remain inadequate if the authorities set out in the Act, are not duly appointed/notified. Therefore, the State/UT government must ensure that every district, at all times has a notified District Officer; in case of vacancy caused by retirement, or any other reason, it must be duly remedied, to enable smooth transition between officers, and ensure that there is always someone incharge of this position. Furthermore, effort has to be undertaken to orient, train and sensitise these district officers, with regards to the provisions of the Act and Rules, with an emphasis on their roles and obligations. Similar range of activities must be conducted for the nodal officers appointed and LCs constituted by each district officer. Operationalizing the Act for the unorganized sector

14. This Act is a pioneering legislation with a ‘horizontal’ mechanism and rights framework. A look at some of the definitions - ‘employee’19, ‘employer’20, and ‘workplace’21 drives this point home and demonstrates the scope of its horizontal application. Further, the inclusion of definitions of ‘domestic worker’, and ‘unorganized sector’ in Section 2, which though not expressly referred to in the substantive content of the Act, is telling: “(e) "domestic worker" means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer;” “(p) “unorganised sector” in relation to a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.”

21 Section 2(o) of the Act. The inclusion of these definitions, has greatly expanded the scope of this Act’s application. An aggrieved domestic worker, thus, can take action against a person residing in the house they work at, using the LC framework; see Section 2(o) which defines ‘workplace’ and includes under sub-clause (vi) “a dwelling place or house”: “(o) “workplace” includes—

(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;

(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;

(iii) hospitals or nursing homes;

(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;

(vi) a dwelling place or a house”

15. Consider next, the composition and role of the LC – which is the foundational body in the district, especially so for the unorganized sector. This committee is headed by a nominated chairperson who is an eminent woman in the field of social work and committed to the cause of women; one member is nominated from the women working in a block/taluka/tehsil (rural) or ward/municipality (urban); two more, of which at least one has to be a woman to be nominated amongst NGOs or associations committed to cause of women or a person familiar with the issues relating to sexual harassment. Further one must be with legal background/knowledge of the law, and one must belong to a Scheduled Caste, Scheduled Tribe, or Other Backward Class.22 An LC is

22 As per Section 6 and 7 of the Act. empowered with powers equivalent to a civil court23 to conduct inquiry, issue summons, enforce attendance, etc., which is reflective of its importance in the framework. The inclusion of nominees from such NGOs is also helpful, because in a context where LCs may convey a sense of formality, women find it easier to approach local NGOs; this is one of the finding in a 2015 International Labour Organization (ILO) report.24 However as pointed out, there is no avenue in the law for these NGOs to register or pursue the matter on behalf of such consenting women. Thus, the spreading of awareness relating to LCs and dispelling the air of formality, should form a priority of the highest level State, that seeks to implement the Act.

16. Lastly, it is relevant to note a major limitation of the Act, which depends on the Union Government to disburse funds to the States, which using an agency, can transfer the same to the district officer.25 Similarly Section 20 and 24, which obligate the district officer and appropriate government to take steps to publicise the Act, is limited by Section 24 which states that: “The appropriate Government may, subject to the availability of financial and other resources, — (a) develop relevant information, education, communication and training materials, and organise awareness programmes, to advance the understanding of the public of the provisions of this Act providing for protection against sexual harassment of woman at workplace; (b) formulate orientation and training programmes for the members of the [Local Committee].” (emphasis supplied) In the absence of a delineated budget to pay the concerned officers and conduct events for awareness and training, various LCs are rendered infructuous or remain vacant.26 Therefore, the requirement of setting the budget for the 23 Section 11 of the Act. 24 ILO, Insights into working conditions in India’s garment (2015) <https://ruralindiaonline.org/en/library/resource/insights-into-working-conditions-in-indias-garment-industry/> (accessed on 17.10.2023).

26 See NHRC’s report on status and Functioning of Local Complaints Committees under the Act (2019) https://nhrc.nic.in/sites/default/files/Status_and_Functioning_of_Local_Complaints_Committees_under_the_Se xual_Harassment.pdf (accessed on 17.10.2023). implementation of this Act, at each district level, and thereafter state-level, to ascertain disbursal of grants from the Union Government.

17. In this manner, the Act contemplates a wide scope for both the aggrieved woman, and the respondent, and place a public duty on the employers, or LCs as the case may be, to ensure prevention, prohibition and redressal of complaints of sexual harassment. Operationalizing LCs and ensuring their effectiveness, remains the key to making these remedies accessible to the unorganized sector. Discussion on specific directions sought by the petitioners

18. The directions prayed for in the present writ petition, can be traced directly to the obligations and duties set out in the express provisions of this Act: Prayer Provision under the Act Public functionary in charge/ obligation on (a) Implement the provisions of the POSH Act and Rules - Union of India, State governments, and union territories (b) Notify and appoint district officers Section 5 State and UT governments

(c) Appointing LCs in each district Section 6 and 7 District Officer

(d) Appointing nodal officers Section 6(2) District Officer

(e) Constituting ICCs in all workplaces as defined under s. 2(o) Section 4 To be constituted by each employer (f) Ensure reporting and collection of annual compliance reports from all workplaces Section 21 and 22 District Officers (g) Annual compliance reports are consolidated and the reports are published in the public domain Section 23 Appropriate government (h) Publicising the Act and Rules and organize awareness activities to advance understanding of the provisions of the Act Section 24; Section 20(2) Appropriate government; District Officer to take measures for engaging NGOs for creation of awareness

(i) Gist of important provisions will be displayed at all working places

Section 19(b) Duty of each employer (j) Framing of rules and or Section 29 Union Government direction to clarify aspects not covered under the prevailing Rules

19. Prayer (g) directing the State/UT governments to ensure that the annual compliance reports collected by the District Officers are consolidated and the reports are published in the public domain, requires some consideration. Section 23 of the Act reads as follows:

While the Act does not contemplate such publication in the public domain, there is certainly merit in using this anonymised data on cases lodged and disposed, to consolidate statistics, that will reflect efficacy of the implementation of the Act. Therefore, while there is no need for such an express direction by this court, the Central Government, and State Government, as the case may be, in the interest of transparency and good governance may consider to make these statistics public– the access to which, would certainly have a positive impact on various stakeholders. This in turn will also strengthen the monitoring of the implementation of this Act.

20. Prayer (j) seeking the framing of rules and/or directions as provided in Section 29 of the Act is limited to three lacunae pointed out by the petitioner: (i) to clarify the role of districts in collecting the annual compliance reports from ICCs and LCs; (ii) role of district officers in collecting fines for non-compliance of the Act; and (iii) identify the appropriate authority for collection of fines. This court has considered the Rules, as they stand, closely; there is certainly some gaps. On point (i), this court’s discussion in paragraph 8 clarifies the position – although the required amendment explicitly laying this out in the Rules, would be appropriate. Points (ii) and (iii) are cause for real concern.

21. Section 26(1) of the Act defines penalty to be imposed on the employer for failing to: constitute the ICC under Section 4, conduct inquiries under Section 13 and 14, submit annual compliance reports as per Section 22, or contravention of any other provision of the Act or Rules. Contravention of the Act, attracts a penalty of 50,000. However, the Rules are woefully silent on ₹ the reporting authority actually responsible for taking note of the noncompliance, and the public authority empowered to collect the said fine27. Given the scheme of the Act, it would be recommended that the District Officer itself, be made this authority – however, presently since they are not empowered to take appropriate action against employers for non-compliance of the Act, it renders the framework rather toothless. Similarly under Section 26(2) which provides further penalty (including cancellation of business license or withdrawal of renewal or approval of cancellation of registration by the government or local authority required for carrying on their business/activity) on an employer for continuous violations of the same provisions – does not mention the authority under the Act responsible for carrying out this function. Conclusion and Directions

22. Having regard to the above discussion, it is appropriate for this court to issue the following directions (under the relevant heads) to ensure the effective implementation of the POSH Act, and render it workable:

Governments i. The Women and Child Development Ministry of every State/UT, through its Principal Secretary, should consider identifying a ‘nodal

27 The other provision which contemplates penalty, is Section 17 [Penalty for publication or making known contents of complaint and inquiry proceedings] which states: “17. Where any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed.” Rule 12 of the POSH Rules has set the fine to be Rs. 5000, which is to be collected by the employer. person’ within the Department, to oversee and aid in coordination as contemplated under the POSH Act. This person would also be able to coordinate with the Union Government on matters relating to this Act and its implementation. ii. Each State/UT Government is to submit a consolidated report of its compliance with the below directions to the Union Government within 8 weeks. The latter is hereby directed to consolidate the various reports, identify any lapses in the compliance by the State and try to remedy it, before filing a consolidated affidavit of compliance – detailing the States’ compliance, and the Union Government’s action taken in regard to the direction within 12 weeks from the date of this judgment.

(c) ensure the contact details of these nodal officers, and LCs, shall be forwarded to the nodal person within the State Government Ministry of Women and Child Development within 6 weeks from the date of this judgment. v. Thereafter, a circular/bulletin containing names of all district officers, and their contact details (phone, address, and email), along with a district wise chart of the various nodal officers and their contact details, must be uploaded on the department’s website (or in the absence of one, on the main State government website) in a conspicuous location, along with a compiled version of the Act, Rules, and simple charts/explainers on the basics of the Act, within 6 weeks from the date of this judgment.

29 Government of India, Handbook on Sexual Harassment of Women at Workplace (2015) https://wcd.nic.in/sites/default/files/Handbook%20on%20Sexual%20Harassment%20of%20Women%20at %20Workplace.pdf (accessed on 26.09.2023). who are nominated or appointed as members of the ICs (by the employer) or LCs (by the District Officer). It is hereby directed that a targeted effort be made to share this information with each District Officer, who may in turn disseminate it to their respective LCs, the nodal officers appointed under Section 6(2), and employers who constitute their own ICCs.

30 Judgment dated 12.05.2023 in Civil Appeal No. 2482/2014. xvii. The District Officer must be supplied a list of establishments (compiled by the relevant departments of the State/UT Government) that fall within the scope of Section 2(o), so that they may write to them and ensure that they are well versed with the provisions relating to employers, and their duties (including constitution of ICC under Section 4, duties under Section 19, etc.) and are implementing them in letter and spirit. This will also enable collection of annual reports, as contemplated under Section 21. The consequent direction to all private sector workplaces under Section 2(o)(ii) can be passed once the District Officer is able to discern an exhaustive list of entities.

23. List this matter in the first week of February 2024, for further compliance. ……………….……………..……J. [S. RAVINDRA BHAT] ……………………………....…..J. [DIPANKAR DATTA] NEW DELHI OCTOBER 19, 2023.