The author, Lavanya G, is a 3rd year law student at Narsee Monjee Institute of Management Studies (NMIMS) School of Law Bengaluru.
Featured Image: IIHR
“It is time when women have to be capable of feeling free and liberated of what might be essentially oppressive conditions in which an independent decision of freedom can be made and available by women.” This is sexual autonomy at its full sense”. This observation made by Justice J.S Verma underscores one of the key facts: sexual harassment is not just an isolated act of misconduct, but rather a structural and systemic violation of women’s right to dignity and equal participation in employment.
Against this backdrop that the Supreme Court in Sohail Malik v. Union of India has devised a stronger judicial examination on matters concerning institutional responses to work place harassment by establishing that a victim to work place harassment can make a complaint before the Internal Committee (IC) at her place of work despite the respondent being in a different organization. Alongside this, the SC also directed that the Companies (Accounts) Second Amendment Rules 2025 must mandate companies to disclose PoSH compliance details in their annual financial statements.
Despite these developments, the recent parliamentary finding reveals that at least 254 women have filed complaints of sexual harassment at the workplace through the government’s SHe-Box portal. Although this statistic reflects that there is an increased awareness and willingness to report incidents among women, it also critically gestures towards the deeper institutional failure: ‘what happens after a complaint is made?’
Background
Given the historically limited participation of women in India’s formal employment sector, the creation of a workplace that is safe, equal and dignified was not merely a matter of regulatory requirement, but rather a foundational necessity for an inclusive and empowered economy. The development of a framework to further this cause was primarily marked by significant institutional resistance, though progressively sustained and furthered by the judiciary and later on by the legislature. Therefore, it can be assessed that the recognition of workplace sexual harassment as a distinct criminal offence was brought through judicial efforts and not legislative foresight. This could be seen in the earlier legal frameworks such as the IPC or the labour codes, that had no coherent mention about workplace harassment, thereby failing to provide a structural remedy for women to address the realities of workplace abuse.
The year of 2013 marked a significant shift in the Legal history of India. In the absence of any defined legislation to curb sexual harassment at workplaces, the Supreme Court in the case of Vishaka v. State of Rajasthan laid down the legal recognition of the Vishaka guidelines or the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) while acknowledging that any kind of harassment, especially sexual in nature, is a serious violation of women’s fundamental rights that impairs their right to livelihood, dignity and life. Significantly, this Act also reflects India’s commitment to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which emphasizes the dire need to establish dignity, equality and a safe working space for women along with proper mechanisms for access to justice.
Conciliation and Inquiry under PoSH Act
The Act introduces conciliation as an optional route that may be initiated only at the behest of the aggrieved woman, reflecting the statute’s intent to preserve her autonomy. The IC or the LC must preliminarily assess whether the complaint is suitable to being dealt with under Section 10, by simultaneously ensuring neutrality and anonymity.
However, when the preliminarily assessments reveal that the allegations are of serious nature, the Act prescribes Sections 11 to 15 to conduct a formal inquiry and investigation procedure. The Delhi HC in Ruchika Singh Chhabra v. Air France India (2018) emphasised the importance of strict procedural compliance during the investigation that includes appointment of an external member and a woman senior officer of the organization to head the inquiry, preserving the principles of natural justice and that the findings of the inquiry must be based on reasoned evaluations and not on prejudicial presumptions.
Institutional Power and the Risk of Coerced Settlement
With this, conciliation can thus be viewed as a restorative justice–inspired mechanism, that seeks to enable dialogue and consensual resolution, when such an approach is deemed to be in the best interest of the complainant. While section 10 formally characterises conciliation as a voluntary and survivor-driven mechanism, it raises concerns about the authenticity and practicality of the implementation and its effectiveness in ensuring justice to the aggrieved woman and preventing the relapse of any such acts again. In a corporate setting, often, either implicitly or otherwise, the need to protect the organisation’s reputation from being tarnished, and not safeguarding the victim, is regrettably the primary concern. While there have been judicial decisions such as Medha Kotwal Lele v. Union of India, affirming that conciliation must remain optional and not the mandate, the practical functioning of workplaces in accordance with this principle has perhaps remained uncertain, marked by power asymmetries.
The Act stipulates a dual redressal mechanism that begins with the optional conciliation stage that can only be initiated at the behest of the aggravated woman, followed by the mandatory inquiry only when conciliation is either inadequate or declined. However, the actual adherence to this structure remains weak, and raises significant concerns regarding its voluntariness and fairness. . [RP1] [LG2] This is because in cases of allegation against influential senior officials, the complainant may be pushed to a vulnerable position, thereby exposing her to further intimidation and negative retaliation.
Furthermore, the actual effectiveness and the factual adequacy of the IC is questionable as the PoSH Act does not specifically require the IC members to be trained mediators in dispute resolution nor specify the necessity of such members to be proficient in handling sensitive matters such as sexual harassment, which critically compromises the entire process resulting in the compromise of neutrality. Moreover, the conciliation process, while intended to be a faster mechanism of dispute resolution mechanism, has on a few occasions played the role of substituting a formal inquiry. This has restricted the bounds of responsibility and investigative scrupulousness leaving structural problems unsolved and undermined.
Digital Harassment and Legislative Gaps
Another critical gap in the PoSH framework is the very definition of workplace, where it is still traditionally understood as physical office environments. While the Act does define workspace, it does not however interpret virtual environments or digital platforms. By doing so, it fails to adequately recognise the evolving nature of digital workspaces that extends beyond the conventional understanding of the same.
This regulatory gap was seemingly more widened during and post Covid-19 era, where there was a rapid expansion in the remote and hybrid forms of work culture that resulted in a significant portion of women interacting through email, workplace messaging platforms, video-conferencing tools, and social media networks. These new avenues have only resulted in the widening of the regulatory grey areas due to the emerging possibility of the occurrence of harassment that fall outside the purview of both the traditional understanding of workplaces as well as the statute itself.
This limitation could be attributed to the absence of any explicit guidance on identifying and investigating sexual advances and harassment occurring digitally, within the existing redressal mechanism. Instances such as sexually suggestive gestures or comments, sharing of inappropriate digital or pornographic content, cyber-stalking through professional communication channels or any act of such sort have become the norm for most of the women who chose to work remotely.
This ambiguity is additionally intensified by the blurred boundaries between professional and personal online spaces, where harassment may either occur through the official organization’s messaging platform or through personal communication channels either during the worktime or beyond. The concern further arises due to the absence of any designated working hours during remote work, thereby resulting in a situation where interactions between workers and colleagues may extend beyond the conventional worktime.
Therefore, due to the absence of clear spatial and temporal boundaries and a constrained definition of workspaces, the IC more often than not has suffered interpretative challenges while determining and assessing whether or not digital interactions that occur either beyond the formal working hours or through online platforms fall within the scope of workplace harassment.
The Constitutional Cost of Institutional Silence
These structural deficiencies within the PoSH framework have transcended from being mere administrative inadequacies to constitutional failures of the highest order. Institutional prejudice coupled with untrained mediators as adjudicating authorities often result in arbitrary treatment of complaints, and a serious violation of Article 14. Similarly, Article 15, that forbids discrimination based on sex, is also undermined in situations where patriarchal power structure deeply embeds not only the institutional settings, but also the mindsets of people. Collectively, these factors result in the creation of a serious form of chilling effect, where women are compelled, either to withdraw their complaints or refrain from reporting at all, leading to the impairment of Article 19(1)(a) and 19(1)(g). Amongst these, perhaps the most severe manifestation of this structural deficiency is the violation of Article 21. An environment that exposes women to harassment without any recourse, is an environment where dignity is stripped and body integrity is not secured, which is what targets the very fabric of the principles enshrined in Article 21.
The persistence of these issues has underscored the State’s role as parens patriae, where the State bears an increased duty to protect women from such violence and neglect. Guaranteeing fundamental rights must not be viewed merely as a negative duty, but rather a necessary obligation to ensure a functional and an unbiased workplace environment for women.
Conclusion
The Act, to ensure that there is no malicious use of these sections, attempts to balance accountability with access to justice. The Act, while offering a safe and secured remedial action to the victim, simultaneously safeguards complainants by explicating that the mere failure to substantiate allegations does not amount to misconduct. In doing so, Section 14 prevents abuse of the redressal mechanism without undermining the confidence of women in reporting workplace sexual harassment. Therefore, in essence, the PoSH Act aims at a calibrated approach to address workplace sexual harassment. While the conciliation process offers a survivor-centric and a consensual space for dialogue in appropriate cases, the investigation process remains indispensable in addressing serious violations. This dual mechanism ensures that redressal is neither coercive nor superficial, but grounded in fairness, accountability, and institutional responsibility.
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