All the gaps, legislative, judicial and implementation in the PoSH Act, should be urgently addressed to make it more effective

The horrifying footage of the Delhi police manhandling the medal-winning women wrestlers on the street is still vivid to many of us. Since January, the protesting wrestlers demanding action against the sitting President of the Wrestlers Federation of India (WFI) for the alleged acts of sexual harassment continued over a decade. A probe committee was set up, but, the findings haven’t yet been made public. On the SC’s prodding, the Delhi Police, filed two FIRs, one under the non-bailable POSCO Act. But, now, the incumbent WFI, Chief, has been charged under the IPC sections, since the minor’s complaint stands withdrawn.

India did make ‘legislative advances’ by enacting the PoSH Act, 2013, as a legal antidote to act against sexual harassment at workplaces, through the form a of Internal Complaint Committees (ICCs) and Local Committees (LCs) for the formal and informal sector employees, respectively. As per the Act ‘any sports institute, stadium, sports complex/ competition/ games venue…’ are workplaces. Sadly, not only the WFI but, as many as 16 of the 30 national sports federations, didn’t have the ICCs in place. Amid the wrestler's protests, the SC, while, deciding on an appeal under the PoSH Act, called out the ‘uncertainties’ in its implementations, and several ‘lacunas’ in the functioning of the ICCs, wherever they exist.

Nevertheless, looking at the formal sector, a recent study (Council of Ethics), vouched for ‘increasing awareness among the employees (76%) about the presence of the ICCs, and also a rise in the percentage of employees, who decided to file complaints to the ICCs’. However, it also flagged the issue of a majority (55.2%) choosing not to reach out to the redressal authorities because of workplace fears’. Some legal experts expressed apprehensions that such in-house committees ‘may find it difficult in conducting a fair enquiry, more so, if the complaint is against the senior management’. Justice Varma committee, while examining the PoSH bill in 2012, forewarned that the ‘structure of the ICCs would dissuade many women from filing legitimate complaints, and promote a culture of suppression’, and suggested for a separate ‘Employment Tribunal’. The Sakhsham committee report on women’s safety on campuses also cautioned that the redressal machinery shouldn’t ‘replicate the power inherent in workplace hierarchies’.

However, the creation of civil bodies at the workplaces has been defended by many socio-legal experts as an alternative redressal mechanism, supposed to be ‘quicker than the long-winded legal routes’. While many others pointed out that it is the ‘lack of legal expertise among the members, clarity in the Act, and Rules, in many areas, that have complicated the entire justice delivery system’, and recommended for ‘inclusion of at least one member with legal background’. On the procedural front, though the Sakhsham committee was categorical that the ‘due process requirement in sexual harassment cases, is distinct from the criminal legal system’, many women rights activists often raise concerns for insistence on ‘concrete’ evidence and contended that it does not necessarily amount to the absence of a crime. In the ongoing wrestler’s case, as the police ask for evidence, the SC lawyer, who defended them in the apex court, takes a dig, saying that ‘now victims should be ready to click on the camera and have someone to record the assault’. While, a Human Rights Watch (HRW) 2020 study highlighted the plight of India’s huge number of women informal workers, who face a persistent onslaught of workplace sexual harassment, and accept them as ‘normal, and a part of life’. A recent survey, though, indicated that there is a hike ( 67.4% in 2021 from 33.3% in 2020) in the number of informal workers who knew how to contact their LCs, but, ground reports reveal that the LCs are ‘either non-existent or non-visible, and out of the 655 districts, only 29% confirmed about their formation(Martha Farrell & PRIA).

The employers, mostly, not registered with any Govt also tend to evade the Act’s provisions, even if they are aware of it. Further, there is no transparency and accountability in the absence of publicly compiled data on the number of complaints and their outcomes at the Central or State level.

Moreover, the ‘huge flaw in the Act is the perspective with which workplace sexual harassment is viewed, considering it as a women’s problem, and not a labour issue.

The informal sector women employees as such, and particularly the domestic workers, not coming under the protection of labour laws and social benefits, remain the most vulnerable, as the PoSH Act says that the LCs must refer their cases to the police, leaving them with no civil remedy.

The Act needs to be amended to ensure that domestic workers get the same access to the LCs, and also India ratifies the ILO’s Convention on domestic workers. As workplace sexual harassment is considered one of the reasons for gender inequality in the workforce, there is also an urgent need for India to adopt the ILO’s Violence and Harassment Convention, 2019. Now, as the women wrestlers’ fight for justice continues against the misuser of official positions, money and muscle powers, all the gaps, legislative, judicial and implementation in the PoSH Act, should be urgently addressed, to put it in practice in letter and spirit.

(The writer is ormer DG, AIR & Doordarshan and former Press Secretary to the President of India . Views expressed are personal)