2023 INSC 927 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 1224 OF 2017

INITIATIVES FOR INCLUSION FOUNDATION ...APPELLANT(S)

& ANR.

VERSUS

UNION OF INDIA & ORS. ...RESPONDENT(S)

J U D G M E N T

S. RAVINDRA BHAT, J.

1.The writ-petitioner organisation, approaches this court under Article 32 of

the Constitution, seeking issuance of appropriate orders directing the

respondents [Union government, and each State/UT government – collectively

referred to as ‘respondent-state’] to take steps for implementing the provisions

of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal)

Act, 2013 read with the Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Rules, 2013 [hereafter “Act/POSH Act”

or “Act” and “Rules/POSH Rules” respectively]. The detailed claims

1

are

extracted verbatim:

“1. To issue a writ in the nature of mandamus or an appropriate writ,

order or direction as may be necessary:-

a.Directing all the Respondents, i.e. Union of India, States and UTs to

implement the provisions of the Sexual Harassment of Women at

Workplace (Prevention, Prohibition, Redressal) Act, 2013 and the Sexual

Harassment of Women at Workplace (Prevention, Prohibition, Redressal)

Rules, 2013 without any further delay;

b.Directing all the States/UTs to notify and appoint the District Officers as

per Section 5 of the Act;

1 The following abbreviations have been used in the writ petition, as well as in this judgment hereafter: “LCC”

or “LC” mean ‘Local Committee’ (as per Act 23/2016 which amended ‘local complaints committee’ to ‘local

committee’); and “ICC” or “IC” to mean ‘Internal Complaints Committee’.

2

c.Directing all the States/UTs to constitute LCCs in all the districts as per

Section 6 & 7 of the Act;

d.Directing all the States/UTs to appoint Nodal Officers as per Section 6 of

the Act;

e.Directing all the States/UTs to constitute ICCs as per Section 4 of the Act

in all the workplaces defined in Section 2(o) of the Act;

f.Directing all the States/UTs to ensure reporting and collection of Annual

Compliance Reports from all workplaces by all the District Officers of

respective States as per Section 21 and 22 of the Act;

g.Directing all the States/UTs to ensure that the Annual Compliance Reports

collected by District Office[r]s, containing information on the number of

cases filed and their disposal, are consolidated and the reports are

published and put in public domain;

h.Directing all the States/UTs to give due publicity to the Acts and Rules in

all the Districts – block, talukas, tehsil in rural or tribal area and ward or

municipality in the urban area and that awareness activities will be

organized to advance the understanding of the provisions of this Act;

i.Directing all the States/UTs that the gist of important provisions will be

displayed at all working places in all the States/UTs.

j.Directing Respondent No.1 to frame rules and/or directions as provided in

Section 29 of the Act, to clarify role of Districts in collecting annual

compliance reports from ICCs and LCCs, role of District Officers in

collecting fines for non-compliance of the Act and appropriate authority

for collection of fines;

2. Issue any other writ/order/direction as this Hon’ble Court may deem fit

and proper in the circumstances of the case.”

2.Over the course of many hearings, this court, with the able assistance and

cooperation of learned counsels involved in the matter – on both sides –

undertook an exercise to delineate lacunae in the implementation of the Act, on

ground. Further, in compliance with orders of this court, numerous states

2

filed

affidavits highlighting steps taken by their respective governments in

furtherance of implementing the Act and Rules in letter and spirit.

3.On 20.02.2023, learned counsels addressed this court on certain questions

regarding the setting up of Nodal Cells in the concerned Central Union Ministry

and also with respect to setting up of Local Committee and appointment of

2 Including Nagaland, Madhya Pradesh, Meghalaya, Goa, Puducherry, Dadra & Nagar Haveli, Karnataka,

Manipur, Haryana, Telangana, Gujarat, Assam, Rajasthan, Himachal Pradesh, Chandigarh UT, Andaman and

Nicobar, Uttarakhand, Uttar Pradesh, Sikkim, Punjab, Odisha, Maharashtra, Jharkhand, NCT Delhi, Bihar,

Tamil Nadu, Kerala, and Tripura.

3

Nodal Officers in all districts of the country. This judgment pertains to these

specific issues and the suggestions made in this regard.

4.Recently, this court in another bench composition, in Aureliano

Fernandes v. State of Goa & Ors.

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had occasion to pass directions regarding the

implementation of the POSH Act. These directions are comprehensive with

regards to seeking compliance of the Act by the appropriate government [as

defined under Section 2(b)] and its many departments, authorities, institutions,

etc.; the High Courts and the courts it supervises; specific non-state

authorities/organisations such as – statutory bodies of professionals (at the apex

and state level), universities and other educational institutions, hospitals/nursing

homes, etc. It specifically directed NALSA and SLSAs, and the National

Judicial Academy and State Judicial Academies, to develop modules for

workshops and awareness programmes, in their capacities. Given that the

directions passed overlap with the scope of the present writ petition that is

before this court, they merit emphatic reiteration:

“77. To fulfil the promise that the PoSH Act holds out to working women

all over the country, it is deemed appropriate to issue the following

directions:

(i) The Union of India, all State Governments and Union Territories are

directed to undertake a timebound exercise to verify as to whether all the

concerned Ministries, Departments, Government organizations,

authorities, Public Sector Undertakings, institutions, bodies, etc. have

constituted ICCs/LCs/ICs, as the case may be and that the

composition of the said Committees are strictly in terms of the

provisions of the PoSH Act.

(ii) It shall be ensured that necessary information regarding the

constitution and composition of the ICCs/LCs/ICs, details of the e-mail

IDs and contact numbers of the designated person(s), the procedure

prescribed for submitting an online complaint, as also the relevant rules,

regulations and internal policies are made readily available on the

website of the concerned

Authority/Functionary/Organisation/Institution/Body, as the case may be.

The information furnished shall also be updated from time to time.

3 Judgment dated 12.05.2023 in Civil Appeal No. 2482/2014.

4

(iii) A similar exercise shall be undertaken by all the Statutory

bodies of professionals at the Apex level and the State level (including

those regulating doctors, lawyers, architects, chartered accountants, cost

accountants, engineers, bankers and other professionals), by Universities,

colleges, Training Centres and educational institutions and by government

and private hospitals/nursing homes.

(iv) Immediate and effective steps shall be taken by the

authorities/managements/employers to familiarize members of the

ICCs/LCs/ICs with their duties and the manner in which an inquiry ought

to be conducted on receiving a complaint of sexual harassment at the

workplace, from the point when the complaint is received, till the inquiry

is finally concluded and the Report submitted.

(v) The authorities/management/employers shall regularly conduct

orientation programmes, workshops, seminars and awareness

programmes to upskill members of the ICCs/LCs/ICs and to educate

women employees and women's groups about the provisions of the Act, the

Rules and relevant regulations.

(vi) The National Legal Services Authority (NALSA) and the State Legal

Services Authorities (SLSAs) shall develop modules to conduct workshops

and organize awareness programmes to sensitize

authorities/managements/employers, employees and adolescent groups

with the provisions of the Act, which shall be included in their annual

calendar.

(vii) The National Judicial Academy and the State Judicial Academies

shall include in their annual calendars, orientation programmes, seminars

and workshops for capacity building of members of the ICCs/LCs/ICs

established in the High Courts and District Courts and for drafting

Standard Operating Procedures (SOPs) to conduct an inquiry under the

Act and Rules.

(viii) A copy of this judgment shall be transmitted to the Secretaries of all

the Ministries, Government of India who shall ensure

implementation of the directions by all the concerned Departments,

Statutory Authorities, Institutions, Organisations etc. under the

control of the respective Ministries. A copy of the judgment shall also be

transmitted to the Chief Secretaries of all the States and Union Territories

who shall ensure strict compliance of these directions by all the concerned

Departments. It shall be the responsibility of the Secretaries of the

Ministries, Government of India and the Chief

Secretaries of every State/Union Territory to ensure implementation of the

directions issued.

(ix) The Registry of the Supreme Court of India shall transmit a

copy of this judgment to the Director, National Judicial Academy, Member

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Secretary, NALSA, Chairperson, Bar Council of India and the Registrar

Generals of all the High Courts. The Registry shall also transmit a

copy of this judgment to the Medical Council of India,

Council of Architecture, Institute of Chartered Accountants,

Institute of Company Secretaries and the Engineering Council of India for

implementing the directions issued.

(x) Member-Secretary, NALSA is requested to transmit a copy of this

judgment to the Member Secretaries of all the State Legal Services

Authorities. Similarly, the Registrar Generals of the State High Courts

shall transmit a copy of this judgment to the Directors of the State Judicial

Academies and the Principal District Judges/District Judges of their

respective States.

(xi) The Chairperson, Bar Council of India and the Apex Bodies

mentioned in sub-para (ix) above, shall in turn, transmit a copy of this

judgment to all the State Bar Councils and the State Level Councils, as the

case may be.

78. The Union of India and all States/UTs are directed to file their

affidavits within eight weeks for reporting compliances. List after eight

weeks.”

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”

5 Section 2(g) reads as follows:

“(g) "employer" means—

(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.

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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;”

6 Section 6(2) of the POSH Act.

7 Section 10 of the POSH Act.

8 Section 14 of the POSH Act and Rule 10 of the Rules.

9 Section 13 of the POSH Act and Rule 9 of the Rules.

10 Section 21(1) of the POSH Act.

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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 records

15

-

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 LC

16

, 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 22 of the POSH Act.

12 Section 21(2) of the POSH Act.

13 Section 23 of the POSH Act.

14 Section 24 of the POSH Act.

15 Section 25 of the POSH Act.

16 Rule 5 of the POSH Rules

17 Second proviso to Section 13(3) of the POSH Act.

8

11.Section 5 stipulates that:

“5. The appropriate Government may notify a District Magistrate or

Additional District Magistrate or the Collector or Deputy Collector as a

District Officer. for every District to exercise powers or discharge

functions under this Act.”

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

Section 20:

“20. The District Officer shall, -

(a) monitor the timely submission of reports furnished by the Local

Committee;

(b) take such measures as may be necessary for engaging non-

governmental organisations for creation of awareness on sexual

harassment and the rights of the women.”

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 Singh

18

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

9

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

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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 in-

charge 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.”

19 Section 2(f), extracted above in fn 4.

20 Section 2(g) extracted above in fn 5.

21 Section 2(o) of the Act.

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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.

12

empowered with powers equivalent to a civil court

23

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).

25 Section 8 of the Act.

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).

13

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 districtSection 6 and 7District 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 22District 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

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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:

“23. Appropriate Government to monitor implementation and maintain

data.- The appropriate government shall 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 workplaces.”

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.

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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 non-

compliance, and the public authority empowered to collect the said fine

27

. 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:

A.Coordination between Union Government and State/UT

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.

16

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.

B.Appointment of public authorities

iii.The concerned Principal Secretary of the State/UT Ministry of Women

and Child [or any other Department, subject to amendment of the

Rules as per direction (vii) below], will personally ensure appointment

of a district officer in each district within their territorial jurisdiction,

as contemplated under Section 5 within four weeks from the date of

this judgment.

iv.Thereafter, each appointed district officer

(a)must in compliance of Section 6(2) appoint nodal officers in

every block, taluka and tehsil in rural or tribal area and ward

or municipality in the urban area;

(b)must constitute a LC, as contemplated under Section 6 and 7

of the Act; and

(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

17

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.

C.Amendments and gaps in Rules that State must fill

vi.The Union Government ought to consider amending the Rules, so as

to operationalise Section 26 of the Act, by recognising a reporting

authority, and/or a fine collecting authority. This direction must be

read in light of the discussion in paragraph 8 (role of district officer

with regards to annual compliance reports) and paragraph 21 (on the

penalty regime contemplated in the Act and resulting lacunae in the

Rules) above.

vii.The Union Government may also consider amending the Rules so as

to identify one Department (preferably the Women and Child

Department), and creating a ‘nodal person’ post within the said

Department to be responsible for the coordination required in the

implementation of the Act [see direction (i)]. This will ensure greater

uniformity in the implementation of the Act across the country.

D.Training and capacity building

viii.The District Officers and LCs should be mandatorily trained regarding

their important responsibilities. Given their position in the redressal

framework contemplated in the Act, they must first be sensitised to the

nature of sexual harassment, the gendered interactions that occur in

the workspace, etc. The State Governments, must organise periodic,

and regular training sessions at the District level which are to be

attended by the District Officer, members of the LC, and nodal

officers [ref: Section 24(b)].

E.Larger efforts towards awareness

ix.In furtherance of Section 24, the State/UT Governments, and Union

Government are hereby directed to set out the financial resources

allocated and or needed, to developing educational, communication

18

and training material for spreading awareness of the provisions of this

Act to the public, and formulate orientation and training programmes

as elaborated in direction (viii) above. This plan of action, must form

part of the compliance affidavit filed by each State. The discussion in

paragraph 16 is to be read along with this direction.

x.The District Officers, once nominated by the State are hereby directed

to identify the non-governmental organisations working with women

and their protection within the district, and take action pursuant to

their duty under Section 20(b) for creation of awareness.

xi.The appropriate government or district officers in question, must also

undertake effort to spread awareness on the existence of LCs, and

make them approachable for the unorganized sector – thus

operationalizing the horizontal import of this Act.

xii.The directions (iv) and (v) passed in Aureliano Fernandes v. State of

Goa & Ors.

28

(supra) cover specifically the direction to authorities,

management and employers to familiarize the members of the ICCs

and LCs of their duties and detailed step-wise manner in which an

enquiry ought to be conducted on receiving a complaint of sexual

harassment; conduct orientation programmes, workshops, seminars,

awareness programmes, etc. and to educate women employees and

women groups about the Act, Rules, and regulations are reiterated.

The modules prepared by NALSA [as per direction (vi) in Aureliano

Fernandes] to conduct workshops and organize awareness

programmes to sensitise authorities, managements, employers could

be used in this regard.

xiii.It is relevant to add here that the Ministry of Women and Child

Development, Government of India, has prepared a Handbook for

implementation of POSH Act

29

, which serves as a useful guide for not

just employees seeking information, but also more pertinently those

28 Judgment dated 12.05.2023 in Civil Appeal No. 2482/2014.

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).

19

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.

F.Annual Compliance Reports

xiv.Due compliance with Section 21(1) and (2), and Section 22, must be

undertaken by each District Officer, of the State – including collecting

the reports from the IC/employers (or information where no report is

available), and from the LC, and preparation of a brief report to be

shared with the State government. The State/UT Governments is

hereby directed to create a Standard Operating Procedure (SOP)

including the procedure, and timelines for this process, so as to enable

it to, in turn, comply with Section 23 of the Act, i.e., monitoring

implementation and maintaining data. This direction may be read in

light of the discussion contained in paragraph 18 above.

G.Monitoring of ICs and compliance by employers

xv.The directions passed in Aureliano Fernandes v. State of Goa & Ors.

30

(supra) address most specifically, the constitution of ICs – in public

establishments [falling broadly within Section 2(o)(i)] and some

private establishments – such as bodies governing professional

associations, etc.; those directions are hereby reiterated, to avoid

multiplicity or overlap of efforts. It is however further, directed that

efforts made must be in line with the scheme of the Act, and through

the authorities so designated for the various roles.

xvi.Similarly, directions are hereby made to hospitals, nursing homes,

sports institutes, stadiums, sports complex, or competition or games

venues [as defined in Section 2(o)(iii) and (iv)] to establish ICs, and

report compliance as per the duties under this Act.

30 Judgment dated 12.05.2023 in Civil Appeal No. 2482/2014.

20

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.