The POSH Act, 2013:what it requires and how a complaint works

Who and what the Act covers

The Act protects any woman at the workplace. That is deliberately wider than “employee”. It takes in permanent staff, contract and daily-wage workers, probationers, trainees, apprentices, interns, and women who are present at the workplace in any other capacity, whether or not there is a written contract and whether or not they are paid.

“Workplace” is correspondingly wide. It is not limited to the office floor. It extends to any place visited by the employee arising out of or during the course of employment, including transport provided by the employer. Offsites, client premises, work travel and — in practice — work-related conduct on digital channels all fall within it.

What amounts to sexual harassment

The Act defines it to include unwelcome physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. The common thread is that the conduct is unwelcome, which courts generally judge from the perspective of the woman subjected to it.

The Act also recognises circumstances that may amount to harassment, such as an implied or explicit promise of preferential treatment, a threat of detrimental treatment, or conduct that creates an intimidating or offensive work environment.

POSH full form, and where the law came from

POSH stands for Prevention of Sexual Harassment. It is not a term used in the statute itself — the Act's full name is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. “POSH” is the shorthand that compliance teams, trainers and lawyers settled on, and it is now how almost everyone refers to the law and to the policy, committee and training built around it.

Before the Act: the Vishaka Guidelines

For sixteen years before this statute existed, the governing rules came from a judgment. In Vishaka v. State of Rajasthan (1997), the Supreme Court held that sexual harassment at the workplace violated fundamental rights, and — in the absence of any legislation — laid down binding guidelines that employers were required to follow until Parliament legislated.

The practical significance is that what was once a judicial direction is now a statutory duty with a penalty attached. An employer who has an informal grievance process but no properly constituted Internal Committee is not in a grey area — they are in contravention.

Why the Act covers women only, and what applies to everyone else

This is one of the most searched questions about the law, and it deserves a straight answer rather than a deflection.

The Act, as Parliament drafted it, protects women at the workplace. The statutory machinery — the Internal Committee, the three-month window, the ninety-day inquiry, the recommendations and the penalty — is available to a complaint by a woman. A man cannot file a complaint under this Act and have an Internal Committee inquire into it under these provisions.

That is a statement about this statute, not about whether the conduct is actionable. Where a man or a person of any gender is harassed at work, several routes exist:

• A gender-neutral internal policy. Most well-run organisations extend equivalent protection and an equivalent process to all employees, voluntarily. This is now standard practice in large Indian employers and is strongly advisable.
• Service rules and the disciplinary process. Harassment is misconduct under most service rules regardless of who it is directed at, and can be dealt with accordingly.
• Criminal law. Conduct amounting to assault, criminal intimidation, stalking or outraging modesty is an offence under the general criminal law, pursued independently of any workplace process.
• Civil remedies for defamation or for breach of the employment contract, depending on the facts.

The POSH policy, the committee and the training

Three artefacts sit around the statute, and employers are judged on all three.

The POSH policy

A written policy is what translates the Act into something an employee can actually use. At minimum it should set out what conduct is prohibited, with examples; who may complain and against whom; the names and contact details of the Internal Committee; how to complain and in what form; the timelines at each stage; what interim relief is available during an inquiry; the confidentiality obligations; the consequences of a finding; and the appeal route.

The Act requires the penal consequences of sexual harassment and the order constituting the Internal Committee to be displayed at a conspicuous place in the workplace (Section 19), and the 2013 Rules require the employer to formulate and widely disseminate a written policy (Rule 13). A policy that exists only in an intranet folder nobody has opened does not meet that requirement.

The committee, in practice

Beyond the prescribed composition, three operational points decide whether an IC works:

• The external member must be genuinely external and must attend. An external member named on paper who never sits is a defect visible on the face of the record.
• Members need orientation. The Act requires the employer to organise it. An IC that does not understand the difference between an inquiry and an investigation, or that allows lawyers to appear before it (the Rules bar legal practitioners), exposes its findings to challenge.
• Composition must be refreshed. Terms do not exceed three years, and an IC whose members have left the organisation is defective until the vacancies are filled.

Training

The Act requires awareness programmes at regular intervals for employees, and orientation for IC members. Beyond compliance, training is what determines whether people recognise conduct as reportable and know where to take it. An organisation with a perfect policy and no awareness programme will see very few complaints — and that is not the same as having no problem.

The annual report, and the records to keep

The Internal Committee must prepare an annual report for each calendar year and submit it to the employer and to the District Officer. The employer in turn includes the number of cases filed and disposed of in its own annual report, or forwards the information to the District Officer where no such report is published.

The report sets out the number of complaints received, the number disposed of, the number pending beyond ninety days, the awareness programmes carried out, and the nature of the action taken by the employer. It names nobody — confidentiality applies to the report as much as to the inquiry.

Records worth keeping, beyond the report

• The constitution order of the Internal Committee, with dates and the term of each member
• Evidence of display of the policy and the IC composition at the workplace
• Attendance records for awareness programmes and IC orientation
• The inquiry file for each complaint, held confidentially and with restricted access
• Dated proof of when the report was forwarded and when action was taken, against the ten-day and sixty-day limits

The Internal Committee

Every employer with ten or more workers must constitute an Internal Committee. This is not optional and it is not satisfied by an HR grievance process or an ethics helpline. The composition is prescribed:

Where a workplace has fewer than ten workers, or where the complaint is against the employer itself, the forum is the Local Committee constituted by the District Officer for that district.

How a complaint moves, start to finish

1. Complaint is filed — within three months A written complaint is made to the Internal Committee within three months of the incident, or of the last incident in a series. The Committee may extend this by a further three months for reasons recorded in writing. Where the woman is unable to make the complaint herself, the Act allows it to be made on her behalf in prescribed circumstances.
2. Conciliation, if she asks for it Before inquiry begins, the Committee may at her request attempt to settle the matter. Money cannot be the basis of that settlement. If it succeeds, the terms are recorded and no inquiry follows — unless the terms are not complied with, in which case the Committee proceeds to inquire.
3. Inquiry — completed within ninety days The Committee conducts the inquiry in accordance with the service rules or the prescribed rules, and has the powers of a civil court for summoning and document production. Both parties are heard. No lawyer represents either side before the Committee.
4. Interim relief during the inquiry On her written request the Committee may recommend transfer of either party, leave for the woman of up to three months in addition to her entitlement, or restraining the respondent from reporting on her work performance.
5. Report to the employer — within ten days The Committee's report of findings is forwarded to the employer or District Officer within ten days of the inquiry's completion, and is made available to both parties.
6. Action — within sixty days The employer must act on the recommendation within sixty days of receiving the report. Action may run from a written apology or warning to withholding increments, to termination, and the Committee may also recommend that compensation be deducted from the respondent's salary.
7. Appeal — within ninety days A person aggrieved by the recommendation or by non-implementation may appeal to the appropriate authority within ninety days.

What the employer must do, beyond the committee

Constituting an IC is the visible obligation. The Act imposes several others, and these are the ones that tend to go unmet:

• Display the penal consequences of sexual harassment and the order constituting the IC at a conspicuous place, and circulate a written policy
• Display the IC's composition — names and contact details — where employees can actually see them
• Organise awareness programmes at regular intervals for employees, and orientation for IC members
• Provide the Committee with facilities to conduct the inquiry, including assistance in securing attendance
• Assist the woman if she chooses to file a criminal complaint about the same conduct
• Treat harassment as misconduct under the applicable service rules and act accordingly
• Report case numbers — include the number of complaints filed and disposed of in its own annual report, or send them to the District Officer if it publishes none

Confidentiality

The identity of the woman, the respondent, the witnesses, and the contents of the complaint and the inquiry are not to be published or made known to the public or the press. Breach of confidentiality attracts a penalty on the person responsible under the applicable service rules or, where there are none, a sum of ₹5,000 recovered by the employer (Section 17 and Rule 12).

Malicious complaints

The Act provides that where the Committee concludes that an allegation was malicious, or that the complainant knowingly made a false complaint or produced forged or misleading evidence, it may recommend action against that person under the service rules.

Two safeguards sit alongside that provision and are frequently overlooked. First, a mere inability to substantiate the complaint or to provide adequate proof does not attract this consequence. Second, malicious intent must be established through an inquiry before any action is recommended. The provision exists to address deliberate abuse, not to penalise a complaint that could not be proved.

Frequently asked questions