Necessary alignment

The purpose of legal provisions is to promote justice. Thus, timespans should not come in the way of punishing a gross misconduct like sexual harassment. The time period for making a complaint under The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013—also known as the PoSH Act—often dilutes the intent of the Act.

Currently, as per Section 9 of the PoSH Act, an aggrieved woman may file a complaint in writing about sexual harassment at the workplace with the Internal Committee constituted in the organisation or the Local Committee within three months from the date of the incident, and in the case of a series of incidents, within three months from the date of the last incident. The provisions further state that the Internal Committee or the Local Committee may, for reasons to be recorded in writing, extend the time limit by an additional three months if it is satisfied that circumstances were such that prevented the woman from filing a complaint within the said period.

In February 2024, a Bill was introduced in the upper house of Parliament proposing to amend certain provisions of the PoSH Act, including modifying the time limit to file a complaint to one year from the date of the incident or last incident. This part of the proposed Bill merits consideration. The Bill also seeks to omit the extension provision. Whether the time limit should be one year or any other timeline is debatable, but the current stipulated time period is definitely too short.

Many times, a victim needs to gather the courage to file such a complaint. Risks of power games, stigma, spoiled image, impact on reputation, loss of job, fear of complaint being termed malicious, etc. remain prevalent. In Aureliano Fernandes vs. State of Goa and Others (2023), the Supreme Court observed certain lapses. The Court noted that however salutary the enactment may be, it will not succeed in providing the dignity and respect that women deserve at the workplace unless there is strict adherence to the enforcement regime and a proactive approach by all State and non-State actors. Furthermore, if the working environment continues to remain hostile, insensitive, and unresponsive to the needs of women employees, the Act will remain an empty formality.

Currently, Section 10 of the PoSH Act outlines that the Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry and at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation. The Amendment Bill of 2024 seeks to eliminate Section 10, thereby removing the conciliation process. Completely deleting this part should be avoided. Given India's vast population and other relevant circumstances, conciliation may be a viable solution that provides peace of mind to the victim rather than prolonging the issue. Additionally, facing a complaint can itself act as a deterrent. While some cases may involve genuine confusion, there is also the argument that undue influence on the woman could occur, which is cited as a reason for deletion. Therefore, as a middle path, conciliation could be considered for deletion only in cases where offenses are repeated.

The PoSH Act upholds women’s fundamental rights to equality and non-discrimination as guaranteed under Articles 14 and 15 of the Indian Constitution, as well as the right to practice any profession or carry on any occupation, trade, or business as provided under Article 19(1)(g), which includes the right to a safe working environment free from sexual harassment and the protection of life and liberty under Article 21. Section 75 of the Bharatiya Nyaya Sanhita (BNS) 2023, a new criminal law equivalent to Section 354A of the Indian Penal Code, also addresses sexual harassment. Parallel proceedings under the PoSH Act and criminal laws can coexist.

The Constitution of India guarantees the protection of life and personal liberty to all at all times. To achieve the objectives of any Act, its provisions need to be made commensurate with actual conditions at the ground level.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal