While not leaving even a drop of doubt in the mind of anyone, the Apex Court as recently as on October 19, 2023 in a most learned, laudable, landmark and latest judgment titled Initiatives For Inclusion Foundation & Anr vs Union of India & Ors in Writ Petition (Civil) No. 1224 of 2017 and cited in Neutral Citation: 2023 INSC 927 in the exercise of its original civil jurisdiction has issued a slew of directions to the Union Government and all State/UT Governments to ensure the effective implementation of the provisions of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) read with its Rules. It must be noted that the Bench of Apex Court passed these most commendable directions in a writ petition that had been filed under Article 32 of the Indian Constitution by an organization named ‘Initiatives For Inclusive Foundation’ seeking effective implementation of the provisions of the POSH Act. The most significant among these directions is the direction made mandatory by the Court that the States and Union Territories must appoint a “District Officer” as per Section 5 of the Act even though in the Section 5 itself it is not mandatory.
Most significantly, what constitutes the “real backbone” of this learned judgment is then laid bare in para 22 wherein it is postulated that, “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 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 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 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. (Judgment dated 12.05.2023 in Civil Appeal No. 2482/2014.) (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 [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).] , which serves as a useful guide for not just employees seeking information, but also more pertinently those 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. [Judgment dated 12.05.2023 in Civil Appeal No. 2482/2014.] (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.
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.”
Finally, the Bench concludes by holding in para 23 that, “List this matter in the first week of February 2024, for further compliance.”
In sum, the most commendable directions that have been issued by the Apex Court to check brazen and rampant sexual harassment of women in work places must be implemented promptly on a war footing. No doubt, States/UTs must comply with the directions issued by the Apex Court in this leading judgment and comply with accordingly! No denying it!
