The Preamble of the The Universal Declaration of Human Rights states: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

Article 1 of the UNHCR states that “All human beings are born free and equal in dignity and rights…”

Article 7 of the UNHCR states that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration…”

-The Universal Declaration of Human Rights

Thus it has been a prerogative of the entire globe, across nations to prevent human right violations and to uphold the dignity of every individual regardless of their origin. These principles of the UNHCR can be aptly applied here to this article since this article tries to manouver around the creation of the POSH Act in India enacted in the year 2013, with the sole aim of protecting working class women from being the inappropriate subject of target of sexual predators in their work spaces.

Thus we come to understand the basic W’s of the Prevention of Sexual Harassment at the Workplace Act, 2013. However, before we dwell further into the act, we need to ascertain as to what was the legislative or the judicial evolution of various acts surrounding the protection of women from sexual harrasment. One needs to understand how and why this act came in place and what incidents preceeding the same were paramount in aiding the formulation of this policy which is very specific act aimed at protecting women in their workplaces.

1. Evolution of Sexual Harassment of Women in Workplace

1.(a) Legislative Evolution

Before the enactment of the POSH Act or the existence of any legislation with regards to prevention of sexual harassment at the workplace, most complaints were filed as Writ Petitions under Article 32 and Article 226 of the Indian Constitution, read with Article 14 and Article 21. However, with regards to Article 32 od the Indian Constitution the Supreme Court in the case of Visaka v. State of Rajasthan observed that each incident of sexual harassment results in violation of the fundamental rights of ‘Gender Equality’ and the “Right to Life and Liberty’. It is a clear violation of the rights under Article 14, 15 and 21 of the constitution and one of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or business’. Therefore, such violations attract the remedy under Article 32 for the enforcement of these fundamental rights of women.

1.(a).1 Criminal Action Under Bhartiya Nyaya Sanhita, 2024

Apart from having a remedy to file writ petitions under article 226 in the High Court and article 32 in the Supreme Court, women also have a few provisions of BNS to file complaints with respect to sexual harassment suffered by them. These are as followed;

1. Section 74 of the BNS

Section 74 of the BNS prescribes that whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine or with both. Most complaint with regards to sexual harassment were filed under Section 354 of the IPC which corresponds to Section 74 of BNS.

2. Section 79 of the BNS

Section 79 of BNS lays down that whoever intending to insult the modesty of any women, utters any word, makes any sound or gesture, or exhibits any object, intending that such work or sound shall be heard or such gesture/object shall be seen by such women or intrudes upon the privacy of such women shall be punished with simple imprisonment for a term which may extend to 1 year or with find or with both. There have been several cases pursuant to Section 509 of the IPC which corresponds with Section 79 of the BNS.

1.(a).2 Criminal Actions Under Other Laws

There are yet another legislation provided as a remedy against sexual harassment: Indecent Representation of Women (Prohibition) Act, 1986, which provides a remedy to a woman if at all she were represented in an indecent manner. Also, Section 582 of BNSS provides for the inherent power to the High court to quash certain complaints. One has to point out here that this power cannot be exercised when there is a code provision for dealing with the grievance of the aggrieved party. It should also be exercised to avoid infringement of the process of any court or otherwise in order to promote the ends of justice. As a legal right, it should not be exercised against the express bar of law engrafted in any other provisions of the BNSS.  This Section has been depended upon several complainants in several cases of sexual harassment at the workplace. 

1.(a).3 Civil Action

An aggrieved woman can file a civil suit under the law of tort, if the grounds for the filing such a case contained elements of mental anguish, physical harassment, loss of income and employment etc. Thus it is held that if an employee is dismissed on unfair grounds or is denied and hindered from any employment benefits owing to rejecting the sexual advances by the respondent, amounts to an unfair labour practice as specified in Schedule II of the Industrial Relations Code, 2020, for which the aggrieved employee can approach the labour court and seek the necessary remedy. Surprisingly there have not been a lot of cases under law of tort where we can see the Courts granting compensation due to mental trauma suffered by a woman as a consequence of sexual harassment. We see that in the case of  Shehnaz Mudbhatkal v. Saudi Arabian Airline, Ms. Shehnaz was subjected to sexual harassment at the hands of her boss and was dismissed from service in the year 1985 when she complained of the same to the higher authorities in her organisation. On approaching the Bombay Labour Court on grounds of unfair dismissal the court upheld her contention and ordered her reinstatement with full back wages and other attendant benefits like promotion etc., in the year 1996.

1.(a).4 Legislative Development Since the 1990’s

The laws discussed above do not narrowly or specifically safe guard the interest of the working women in respect of sexual harassment faced by them at there workplaces. Unfortunately, this laws are very scattered and can provide relief with respect to only certain kinds of harassment and do not in particular have workplace sexual harassment in focus. Thus from the 1990’s it started becoming evident that it was absolutely necessary that the law specifically  dealing with sexual harassment at the workplace and dealing with the procedure to handle such cases was absolutely necessary. Therefore while the legislation to protect women from sexual harassment at workplace was awaiting to be passed by the parliament, from the start of 1990’s, a few legislative development relating to sexual harassment took place in India. Some of this are mentioned as below;

(a). Protection of Human Rights Act, 1993: This act provides that, there ought to be established a National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts in order to enhance protection of human rights. The Protection of Human Rights Act, 1993, has enacted the meaning of “Human Rights” as meanings the rights to life, liberty, equality and dignity enshrined in the Indian Constitution or the International Instruments or enforceable under the laws of India. From this definition, it was necessary and proper that an employer in workplaces should follow some guidelines to prevent cases of sexual harassment of women so as to live with dignity.

(b). Instructions Issued by The Government of India: In the aftermath of the Vishaka & ors. V. State of Rajasthan & ors., the Government of India issued various instructions regarding prevention of sexual harassment of working women. The instructions stipulate the creation of an appropriate complaint mechanism in every organisation, whether in organized or unorganized sector, for redressal of the complaints made by the victims. The Government of India also revealed that they have learned that, in one of

the central government department the committee constituted was headed by

an official of the rank of Upper Division Clerk. The government at the time felt that since the officer was not sufficiently the hired rank then he or she may not be able to voice a view singly especially where the perpetrator was of higher ranking to the said official. Hence it was proposed that in order to provide credibility to the complaints of sexual harassment at workplaces the committee that had been formed to look into the complaints in this regard should preferably be headed by an officer of higher rank.

(c). The Central Civil Services (Classifications, Control and Apple) Rules, 1965: The Central Civil Services Rules apply to every Government servant including those in the defence services but do not apply to certain Government servants such as Railway Employees, Members of all India services or a person with casual employment with the Government etc. This CCS rules deal with the procedure to handle cases of misconduct in the nature of sexual harassment by this Government servents. The CCS rules were amended to provide for procedure to take action against a Government servant who has been allegedly involved in sexual harassment and against whom a complaint of sexual harassment has been filed, after the judgement of Supreme Court in the case of Vishaka v. State of Rajasthan. CCS rules under rule 14 provide that where a course of conduct constituting sexual harassment is alleged according to the provisions of rule 3C of the Central Civil Services (Conduct) Rules (1964), the complaint as such formed in each office/department/ministry for inquiring into such complaint is bound to inquire into the concerned matter and the complaint as hereinbefore referred shall conduct the inquire as per the procedure laid down in these rules.

(d) Circulars Issued by The University Grants Commission: In the year 1998, the University Grants Commission(UGC) had issued circulars to all Universities, in order to provide for the effective enforcement of the basic Human right of gender equality and guarantee against sexual harassment and abuse, advising them to establish a permanent cell and redressal committee with the aim to develop robust guidelines to combat sexual harassment, violence against women and ragging at the universities and colleges across the country. Furthermore, the UGC also advised the universities to be proactive by developing a conducive atmosphere on the campus so that the status of women is upheld, is respected and they are treated with dignity. In this regard the UGC in exercised of the powers conferred to it under Section 26(1) of the UGC Act, 1956, made regulations stating that the grievances under the regulation would include complaints of the aggrieved students including  harassment and victimization of students including sexual harassment. The regulation thus provides for a Grievance Redressal Committee that prescribes constitution of five members for an individual college or a group of colleges. Also, if any institution contravined with the orders of the Grievance Redressal Committee strict action would be taken against them.

(e). Industrial Employment (Standing Order) Act, 1946, (“Standing Orders Act”) and Industrial Employment (Standing Order) Central Rules, 1946 (“Standing Orders Rules”): The Standing Orders Act was enacted with the aim to define ideal conditions of employment of workers employed in industrial establishments. It applies to industrial establishments defined under Section 2(e) of the Standing Orders Act which include industrial establishment under the Payment of Wages Act, 1936, a factory under the Factories Act, 1948, a railway defined under the Railways Act, 1989, or an establishment of a person who employs workmen for fulfilling a contract with the owner of an industrial establishment and which employ 100 or more workmen or as may be prescribed by different states through State amendments to the Standing Orders Act. The model standing Orders list out acts and omissions which all amount to misconduct including that of sexual harassment. Order 14(3A) provides that the complaints committee shall inquire as per the provisions laid down in the Standing Orders Rules. Order 14(3B) provides for the constitution of the complaints committee by the employer and provides that it shall consist of a chairperson who has to be a woman and 2 members from non governmental organisation one of whom has to be a woman and Order 14 (3C & 3D) provides that the complaint committee shall submit an annual report and the employer shall comply with the guidelines provided by the Supreme Court in the case of Vishaka and report to the Government with regards to the same.

(f). Securities and Exchange Board of India (Employe Service) Regulation, 2007: In SEBI, Regulation 17A deals with prohibition of sexual harassment of women employee at workplace and state that any employee shall not indulge in any act of sexual harassment of any women employee at the workplace. It also defines the term sexual harassment. It also says that any complaint violation shall be dealt by the complaints committee setup by the board which shall be chaired by a woman. It also states that the committee should consist of at least one outsider who is familiar with the issue of sexual harassment; and be composed in such a manner that at least one half of its members are women.

(g). Gender Sensitisation and Sexual Harassment at The Supreme Court of India (Prevention, Prohibition, Redressal) Regulations, 2013 (“GS Regulations, 2013”): The Gender Sensitisation and Sexual Harassment regulations, 2013 were published as a comprehensive code for prevention of sexual harassment of women within the precincts of the workplace of the Supreme Court of India and for redressal for complaints of the nature of sexual harassment at workplace that might be lodged in the Supreme Court.

Thus we observe that all the amendments, regulations ect. Those made during this year were made only with respect to government bodies. None of the above amendments, regulations ect. Could have been applied to private companies or private sector in general. Thus except for judicial pronouncement  and the Vishaka guideline, the private sector workplaces were not bound by any specific legislation with respect to workplace sexual harassment. It was only in 2013, that this gap was filled when the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013 was introduced.

1.(b) Judicial Evolution

It’s a quite unfortunate scenario that instances of sexual harassment started getting acknowledgement and recognized in India only after the 1980’s. Thankfully there appeared a shift in approach in the 1990’s The Indian Law Courts witnessed several complaints on sexual harassment and piercing through the stereotype and biases surrounding the women, the Court started taking a different view in some cases, thus diverging from the traditional mindset.

1.(b).1 In State of Maharashtra v. Madhukar N. Mardikar The Supreme Court held that a woman’s lack of chastity does not render her open to every or any person to violate her person on the whims and fancies of the perpetrator.Therefore, merely because she is of easy virtue, her evidence cannot be thrown overboard/discarded and she is entitled to the protection of law and to equality under the law.

1.(b).2 In the case of  Delhi Domestic Working Women v. Union of India The Supreme Court laid down a few guidelines such as;

1. The complainants of sexual assault should be provided with a legal representative.
2. Legal assistance to be provided at police stations and the police should inform the victim of her right to representation.
3. Anonymity of the victim to be maintained.
4. List of advocate in dealing with case of sexual assault to be kept at police station.
5. A “Criminal Injuries Compensation Board” to be established to compensate victims for substantial financial loss which may have been incurred as a result of the crime.

1.(b).3 Over the years, owing to tardy implementation of various guidelines provided via various judgement The Supreme Court of India eventually gave a robust guideline for all of the corporate sector and the public sector to incorporate in their workplaces in the case of Vishaka v. State of Rajasthan, known as Vishaka Guidelines. These Guidelines were laid down by the Supreme Court of India in 1997, in the landmark case of Vishakha and others v. State of Rajasthan. These guidelines were formulated to address sexual harassment at the workplace and were to be implemented until legislation was passed to deal with the issue.

Here are the detailed Vishaka Guidelines laid down by the Supreme Court of India in 1997:

1. Definition of Sexual Harassment
2. Sexual harassment includes any unwelcome sexually determined behavior, such as:
3. Physical contact and advances towards the female colleague.
4. Demand or request for sexual favors from the female colleague.
5. Sexually colored remarks aimed at the female colleague or to male colleagues in presence of a woman co-worker with the intent to make her aware of the content of the discussion.
6. Showing pornography to fellow female colleagues or to male colleagues in presence of a woman co-worker with the intent to make her aware of the content of the audio-visual media.
7. Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
8. Sexual harassment can be committed by anyone, including superiors, colleagues, or third-party visitors.

1. Preventive Measures
2. Constitution of a Complaints Committee: Every employer shall constitute a Complaints Committee to deal with complaints of sexual harassment at workplace.
3. Information Dissemination: Employers shall disseminate information about the prohibition of sexual harassment and the Complaints Committee with the aim to nip-in-the-bud any such tendencies that may develop amongst certain male coworkers.
4. Conducive Work Environment: Employers shall create a conducive work environment that is free from sexual harassment and that’d not violate the privacy and modesty of a woman.
5. Training and Awareness: Employers shall provide training and awareness programs for employees on sexual harassment at Workplaces, the reasons to not resort to such means, the consequences of the same and the remedies as such.

III. Complaint Mechanism

1. Complaint Filing: Any employee who feels aggrieved by sexual harassment shall file a complaint with the Complaints Committee.
2. Complaints Committee Composition: The Complaints Committee shall consist of:
3. A presiding officer (preferably a woman)
4. Not less than two members, one of whom shall be a woman
5. A member from a non-governmental organization or other organizations committed to the cause of women
6. Inquiry Procedure: The Complaints Committee shall conduct an inquiry into the complaint, following the principles of natural justice.
7. Recommendations: The Complaints Committee shall submit its recommendations to the employer, who shall implement them.

1. Prohibition of Retaliation
2. No Retaliation: No employee shall be retaliated against for complaining of sexual harassment or participating in an inquiry into such allegations.
3. Protection of Witnesses: The Complaints Committee shall ensure the protection of witnesses and the complainant during the inquiry.

1. Disciplinary Action
2. Disciplinary Action: Where the Complaints Committee finds that an employee has committed sexual harassment, the employer shall take disciplinary action against the employee.
3. Range of Disciplinary Action: The disciplinary action may range from warning, reprimand, or censure to suspension, dismissal, or any other penalty.

1. Monitoring and Review
2. Monitoring: The Complaints Committee shall monitor the implementation of its recommendations.
3. Review: The employer shall review the complaints and action taken periodically.

These guidelines were a significant step towards addressing sexual harassment at the workplace in India and paved the way for the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, applicable across the entire nation.

Thus these guidelines are summarised as follows-

1. It shall be the duty of the employer or person in charge of the workplace or any other responsible persons in workplaces or other institutions to prevent and deter the commissions of acts of sexual harassments and to provide the procedure for resolution, settlement and prosecution of acts of the nature of sexual harassment at workplace by taking all the necessary steps as may be required. Also, where such conduct amounts to a specific offence under the Bharatiya Nyaya Sanhita or under any other law, the employer is mandated to initiate appropriate action in accordance with law, by making a complaint to the appropriate authority.  
2. The employer should also ensure that the victim or/and witnesses are not victimized or discriminated against while dealing with complaint of sexual harassment at workplace. Thus, where such a conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action has to be initiated by the employer in accordance with those rules.

2. Evolution of Laws pertaining to Sexual Harassment at Workplace at International Level:

2.1 United Nations:

The United Nations General Assembly and regional treaty systems have given recognition to sexual harassment as a form of discrimination and violence against women. The Universal Declaration of Human Rights also set out a general plan on discrimination of any kind including and specifically on the basis of the sex of a person. The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) provides a broad definition of discrimination specifically against women which has now gained international acceptance. General Assembly Resolution on the Declaration and elimination of violence against women defines violence against women as to include sexual harassment which is prohibited at work in education educational institutes and elsewhere and also encourages development of penal, civil or other administrative sanctions as and when needed as an approach to eliminate violence against women.

2.2 International Labour Organization:

In 1958 the ILO adopted the discrimination (Employment and Occupation) Convention, which is also ratified by India. The ILO Committee of Experts on the Application of Conventions and Recommendation has thus confirmed that Sexual Harassment is a form of discrimination covered by the discrimination (Employment and Occupation) Convention 1958. The examples of sexual harassment in employment include insults, remarks, jokes, insinuations and inappropriate comments on a person’s dress or age or their physique, family situation or any such condescending or paternalistic attitude which impair their dignity or any kind of unwelcome invitations or request that are implicit or explicit whether or not they are accompanied by threats, obscene lustful looks or any suggestions associated with sexuality, unnecessary physical contact such as touching,pinching, caressing or assault. The Internation Labour Organisation has the distinction of being the only international body to have adopted an instrument containing protection against sexual harassment at workplace.

Laws preventing Sexual Harassment at Workplace in Foreign Jurisdictions:

2.3 United States of America:

Sexual harassment in the workplace is prohibited under various federal, state, and a few local laws in the United States of America. These laws aim to ensure a safe and respectful working environment for all employees. The Civil Rights Act of 1964 is the cornerstone of workplace anti-discrimination laws in the United States of America. It prohibits employers from discriminating against employees or job applicants based solely on their race, color, religion, sex, or national origin. Thus, sexual harassment is considered a form of sex discrimination under Title VII of the Civil Rights Act, 1964.

2.4 United Kingdom:

In the United Kingdom, the Charter of Fundamental Rights of the European Union explicitly guarantees freedom from discrimination based on sex. Furthermore, Article 23 of the Charter mandates that states promote equality between men and women in all aspects. Consequently, courts in the United Kingdom and Ireland recognize sexual harassment as a form of gender discrimination prohibited by law. The Equality Act of 2010 in the United Kingdom deals with the cases of Sexual Harassment at Workplace and also imposes a liability on the Employers.

2.5 Australia:

Sexual harassment was first recognised as a form of unlawful discrimination by an Australian Adjudicator in the case of O’Callaghan v/s Loder. The Commonwealth Parliament was the first in Australia to pass legislation explicitly identifying sexual harassment as an actionable wrong under anti-discrimination laws. With the enactment of the Sex Discrimination Act of 1984, sexual harassment was officially recognized as a form of sex discrimination in Australia. In Hornam v. Distribution Group Limited  in Australia, it was also held that It may still be sexual harassment if it seems like the person was participating in the behaviour.

3.(a) Prevention of Sexual Harassment at Workplace, 2013.

The Preamble to the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal ) Act, 2013 takes references from Articles 14, 15 and 21 of the Indian Constitution. It states that the “State shall not deny  to any person equality before the law or the equal protection of law in the territory of India”. Therefore article 14 mandates that no person shall be discriminated against based on their ability, gender or any personal attribute for that matter. Article 15 of the Indian Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. In fact article 15(3) goes a step further ahead and mentions that nothing in article shall prevent that state from making any provision for women and children. Thus from a combined interpretation of articles 14 and 15(3) it becomes clear that the Indian Constitution not only strives to grant equality to women but also empowers the state to adopt measures of positive discrimination in favor of women for neutralizing the disadvantages faced by them in their day to day life. Thus the POSH is a legislative measure to uphold the constitutional mandate as described above. Thus this act aims to provide for guideline for a safe working environment for women and thereby securing equal opportunity of them

to work, gain employment  and generate revenue and thereby increase their contribution in the socio-economic fabric of the Country. In the case of Vishaka & ors. V. State of Rajasthan & ors., the supreme court of India laid great emphasis on the aspect of gender equality embodied in the provision of the Indian Constitution that forms a part of basic human rights and natural justice. This right comprehends the preservation of dignity of women at all levels of organized and unorganized sector. A dignified existence is very important in ensuring the right to earn one’s livelihood in conditions that are fair, just and gender neutral. A condition which disadvantages a women worker solely on the ground of gender is unconstitutional. It is observed that the guidelines and norms were set out in the judgement to be mandatorily and strictly applied at all workplaces for the preservation and enforcement of a right of gender equality amongst all working women.

Article 19(1)(g) provides for the freedom to practice any profession or to carry out any occupation, trade or business. Thus when a woman is harassed at her workplace her freedom to carry out any occupation, trade or business is curbed thus violating her fundamental right of freedom to practice in any profession.

Article 21 of the Indian Constitution states that no person shall be deprived of his life and personal liberty except according to the procedure established by the law. Here life does not merely mean the act of existing but more comprehensively or holistically means existence with dignity. Thus the right to gender equality is intrinsic to the right to life under article 21 of the Indian Constitution. An invasion of gender or a woman’s modesty is nothing but the destruction of the right of every woman to live with dignity. Thus in the case of  Vishaka & ors. V. State of Rajasthan & ors.  The Supreme Court of India stated that sexual harassment in the workplace is a violation of articles 14,15 and 21 of the Indian Constitution.

Unfortunately for the eradication of the social evil the preamble of this Act does not find the mention of the following directive principles of State policy-

1. Article 42 Provided in the part IV of The Indian Constitution, provides for just and humane conditions of work and maternity leave.
2. Article 51A of Part IV of the Indian Constitution mandates that every citizen of India has a duty to foster harmony and a sense of common brotherhood among all Indians, transcending religious, linguistic, regional, or sectional differences, and to reject practices that undermine the dignity of women.

India also derives inspiration from the Convention on the Elimination of all Forms of Discrimination against Women, which was ratified by India on June 25, 1993, India is also signatory to the Discrimination Convention, 1958, which was adopted by the International Labour Organization. Thus India has expressly affirmed it’s commitment towards eradicating the evil’s of sexual harassment.