1. Writ petition under Article 32 seeking directions for the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and Rules. (Para 1 )
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2023 Supreme(SC) 1062
SUPREME COURT OF INDIA
S. Ravindra Bhat, Dipankar Datta, JJ.
Initiatives for Inclusion Foundation & Anr. – Appellants
Versus
Union Of India & Ors. - Respondents
Writ Petition (Civil) No. 1224 of 2017
Decided On : 19-10-2023
Important Points
The Court held that appointing District Officers under Section 5 of the POSH Act is mandatory for its effective implementation. It issued comprehensive directions to Union and State governments to notify officers, constitute Local Committees, operationalize penalty regimes, and ensure accessible redressal mechanisms, especially for the unorganized sector.
Subject
Civil Law - Women's Rights / Employment Law
Act Referred
CONSTITUTION OF INDIA: Art.32
SEXUAL HARASSMENT AT WORKPLACE PREVENTION, PROHIBITION AND REDRESSAL ACT: S.10, S.11, S.13, S.14, S.2(o), S.26(1), S.29, S.4, S.5, S.6, S.7, S.8
SEXUAL HARASSMENT AT WORKPLACE PREVENTION, PROHIBITION AND REDRESSAL RULES: R.12
SEXUAL HARASSMENT AT WORKPLACE PREVENTION, PROHIBITION AND REDRESSAL ACT: S.10, S.11, S.13, S.14, S.2(o), S.26(1), S.29, S.4, S.5, S.6, S.7, S.8
SEXUAL HARASSMENT AT WORKPLACE PREVENTION, PROHIBITION AND REDRESSAL RULES: R.12
Headnote
SEXUAL HARASSMENT - IMPLEMENTATION OF POSH ACT - Section 4, Section 5, Section 6, Section 7, Section 21, Section 22, Section 23, Section 24, Section 29 - The court addressed the implementation of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. The court discussed the role of the District Officer, the appointment of Nodal Officers and Local Committees, the reporting and collection of annual compliance reports, and the publicizing of the Act. The court also highlighted the need for training and capacity building, as well as efforts towards awareness. The court issued directions to ensure effective implementation of the Act, including the appointment of district officers, the amendment of rules, and the creation of awareness programs. The court emphasized the importance of coordination between the Union Government and State/UT Governments and directed the submission of compliance reports. The court also reiterated directions from a previous judgment regarding the constitution of Internal Complaints Committees in public and private establishments. The court set a date for further compliance.
Fact of the Case:
The writ-petitioner organization sought orders directing the Union government and State/UT governments to implement the provisions of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.Finding of the Court:
The court found that there were gaps and lack of uniformity in the implementation of the Act. Many states had not appointed District Officers or constituted Local Committees. The court also noted the lack of clarity regarding the role of District Officers in collecting annual compliance reports and the enforcement of penalties for non-compliance.Ratio Decidendi:
The court emphasized the pivotal role of the District Officer in the implementation of the Act and the need for coordination between the Union Government and State/UT Governments. The court issued directions for the appointment of district officers, the amendment of rules, training and capacity building, awareness programs, and the collection and publication of annual compliance reports. Final Decision: The court issued directions to ensure the effective implementation of the Act and set a date for further compliance.Legal Category Hierarchy
-
constitutional law
-
writ jurisdiction
- article 32 (Para 1)
-
writ jurisdiction
- administrative law
- labour and employment law
Advocates appeared:
For the Petitioner(s): Mr. Sanjay Parikh, Sr. Adv. Ms. Srishti Agnihotri, AOR Ms. Shobha Gupta, AOR Mr. Aditya Ranjan, Adv. Ms. Jessy Kurian, Adv. Ms. Tarjana Rai, Adv.
For the Respondent(s): Ms. Suhseni Sen, Adv. Ms. Manisha Chava, Adv. Mr. Rustam Singh Chauhan, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Sahil Bhalaik, AOR Mr. Tushar Giri, Adv. Mr. Siddharth Anil Khanna, Adv. Mr. Mahfooz Ahsan Nazki, AOR Mr. Surjendu Sankar Das, AOR Ms. Annie Mittal, Adv. Mr. Vinod Sharma, AOR Mr. Pashupathi Nath Razdan, AOR Ms. Maitreyee Jagat Joshi, Adv. Mr. Astik Gupta, Adv. Ms. Akanksha Tomar, Adv. Mr. Nishe Rajen Shonker, AOR Mrs. Anu K. Joy, Adv. Mr. Abraham Mathew, Adv. Mr. Alim Anvar, Adv. Mr. Pukhrambam Ramesh Kumar, AOR Mr. Aaditya Aniruddha Pande, AOR Mr. Siddharth Dharmadhikari, Adv. Mr. Sourav Singh, Adv. Mr. Aditya Krishna, Adv. Mr. Mrinal Gopal Elker, AOR Mr. Saurabh Singh, Adv. Mr. Siddhesh Shirish Kotwal, Adv. Ms. Ana Upadhyay, Adv. Ms. Manya Hasija, Adv. Mr. Tejasvi Gupta, Adv. Mr. Pawan Upadhyay, Adv. Mr. Nirnimesh Dube, AOR Mr. Shibashish Misra, AOR Mr. Ajay Pal, AOR Mr. Mayank Dahiya, Adv. Ms. Sugandh Rathor, Adv. Mr. Tanmaya Agarwal, AOR Mr. Wrick Chatterjee, Adv. Mrs. Aditi Agarwal, Adv. Mr. Vinayak Mohan, Adv. Mr. Raj Bahadur Yadav, AOR Mr. Shreekant Neelappa Terdal, AOR Mr. Sri Harsha Peechara, Adv. Mr. Duvvuri Subrahmanya Bhanu, Adv. Ms. Pallavi, Adv. Ms. Kriti Sinha, Adv. Mr. Rajiv Kumar Choudhry, AOR Mr. Aravindh S., AOR Mr. Abbas, Adv. Mr. Abhinav Mukerji, AOR Mrs. Bihu Sharma, Adv. Ms. Pratishtha Vij, Adv. Mr. Mohit Prasad, Adv. Ms. Swati Ghildiyal , AOR Mr. Lokesh Sinhal, Sr. A.A.G. Mr. Deepak Thukral, A.A.G. Mr. Samar Vijay Singh, AOR Dr. Monika Gusain, Adv. Mr. Nikunj Gupta, Adv. Mr. Keshav Mittal, Adv. Mr. Tapesh Kumar Singh, AOR Mr. Prashant Bhardwaj, Adv. Mr. Aditya Pratap Singh, Adv. Mr. Priyanshu Malik, Adv. Mr. V. N. Raghupathy, AOR Mr. Manendra Pal Gupta, Adv. Mr. Varun Varma, Adv. Mr. M. Bangaraswamy, Adv. Mr. S. Spandana Reddy, Adv. Mr. Avijit Mani Tripathi, AOR Mr. T.K. Nayak, Adv. Ms. Rekha Bakshi, Adv. Ms. Marbiang Khongwir, Adv. Ms. K. Enatoli Sema, AOR Ms. Limayinla Jamir, Adv. Mr. Amit Kumar Singh, Adv. Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv. Mr. Raghvendra Kumar, AOR Mr. Anand Kumar Dubey, Adv. Mr. Devvrat Singh Naruka, Adv. Ms. Harsha Sharma, Adv. Mr. Maneeshpathak, Adv. Mr. Sabarish Subramanian, AOR Mr. Shuvodeep Roy, AOR Mr. Kabir Shankar Bose, Adv. Mr. Deepayan Dutta, Adv. Mr. Vishwa Pal Singh, AOR Ms. Rachana Gandhi, Adv. Mr. Mukesh Kumar, Adv. Mr. Bharpur Singh, Adv. Mr. Sandeep Kumar, Adv. Mr. Ashish Pandey, Adv. Mr. Akash, Adv. Mr. Gopal Singh, AOR Ms. Rekha Dayal, Sr. Adv. Mr. Akhileshwar Jha, Adv. Mr. Hitesh Kumar Sharma, Adv. Mr. Neeraj Singh, Adv. Ms. Yamini Sharma, Adv. Ritika Raj, Adv. Ms. Niharika Dewivedi, Adv. Ms. Manju Jetley, AOR Mr. Gaurav Agrawal, AOR Mr. Satya Mitra, AOR
For the Petitioner(s): Mr. Sanjay Parikh, Sr. Adv. Ms. Srishti Agnihotri, AOR Ms. Shobha Gupta, AOR Mr. Aditya Ranjan, Adv. Ms. Jessy Kurian, Adv. Ms. Tarjana Rai, Adv.
For the Respondent(s): Ms. Suhseni Sen, Adv. Ms. Manisha Chava, Adv. Mr. Rustam Singh Chauhan, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Sahil Bhalaik, AOR Mr. Tushar Giri, Adv. Mr. Siddharth Anil Khanna, Adv. Mr. Mahfooz Ahsan Nazki, AOR Mr. Surjendu Sankar Das, AOR Ms. Annie Mittal, Adv. Mr. Vinod Sharma, AOR Mr. Pashupathi Nath Razdan, AOR Ms. Maitreyee Jagat Joshi, Adv. Mr. Astik Gupta, Adv. Ms. Akanksha Tomar, Adv. Mr. Nishe Rajen Shonker, AOR Mrs. Anu K. Joy, Adv. Mr. Abraham Mathew, Adv. Mr. Alim Anvar, Adv. Mr. Pukhrambam Ramesh Kumar, AOR Mr. Aaditya Aniruddha Pande, AOR Mr. Siddharth Dharmadhikari, Adv. Mr. Sourav Singh, Adv. Mr. Aditya Krishna, Adv. Mr. Mrinal Gopal Elker, AOR Mr. Saurabh Singh, Adv. Mr. Siddhesh Shirish Kotwal, Adv. Ms. Ana Upadhyay, Adv. Ms. Manya Hasija, Adv. Mr. Tejasvi Gupta, Adv. Mr. Pawan Upadhyay, Adv. Mr. Nirnimesh Dube, AOR Mr. Shibashish Misra, AOR Mr. Ajay Pal, AOR Mr. Mayank Dahiya, Adv. Ms. Sugandh Rathor, Adv. Mr. Tanmaya Agarwal, AOR Mr. Wrick Chatterjee, Adv. Mrs. Aditi Agarwal, Adv. Mr. Vinayak Mohan, Adv. Mr. Raj Bahadur Yadav, AOR Mr. Shreekant Neelappa Terdal, AOR Mr. Sri Harsha Peechara, Adv. Mr. Duvvuri Subrahmanya Bhanu, Adv. Ms. Pallavi, Adv. Ms. Kriti Sinha, Adv. Mr. Rajiv Kumar Choudhry, AOR Mr. Aravindh S., AOR Mr. Abbas, Adv. Mr. Abhinav Mukerji, AOR Mrs. Bihu Sharma, Adv. Ms. Pratishtha Vij, Adv. Mr. Mohit Prasad, Adv. Ms. Swati Ghildiyal , AOR Mr. Lokesh Sinhal, Sr. A.A.G. Mr. Deepak Thukral, A.A.G. Mr. Samar Vijay Singh, AOR Dr. Monika Gusain, Adv. Mr. Nikunj Gupta, Adv. Mr. Keshav Mittal, Adv. Mr. Tapesh Kumar Singh, AOR Mr. Prashant Bhardwaj, Adv. Mr. Aditya Pratap Singh, Adv. Mr. Priyanshu Malik, Adv. Mr. V. N. Raghupathy, AOR Mr. Manendra Pal Gupta, Adv. Mr. Varun Varma, Adv. Mr. M. Bangaraswamy, Adv. Mr. S. Spandana Reddy, Adv. Mr. Avijit Mani Tripathi, AOR Mr. T.K. Nayak, Adv. Ms. Rekha Bakshi, Adv. Ms. Marbiang Khongwir, Adv. Ms. K. Enatoli Sema, AOR Ms. Limayinla Jamir, Adv. Mr. Amit Kumar Singh, Adv. Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv. Mr. Raghvendra Kumar, AOR Mr. Anand Kumar Dubey, Adv. Mr. Devvrat Singh Naruka, Adv. Ms. Harsha Sharma, Adv. Mr. Maneeshpathak, Adv. Mr. Sabarish Subramanian, AOR Mr. Shuvodeep Roy, AOR Mr. Kabir Shankar Bose, Adv. Mr. Deepayan Dutta, Adv. Mr. Vishwa Pal Singh, AOR Ms. Rachana Gandhi, Adv. Mr. Mukesh Kumar, Adv. Mr. Bharpur Singh, Adv. Mr. Sandeep Kumar, Adv. Mr. Ashish Pandey, Adv. Mr. Akash, Adv. Mr. Gopal Singh, AOR Ms. Rekha Dayal, Sr. Adv. Mr. Akhileshwar Jha, Adv. Mr. Hitesh Kumar Sharma, Adv. Mr. Neeraj Singh, Adv. Ms. Yamini Sharma, Adv. Ritika Raj, Adv. Ms. Niharika Dewivedi, Adv. Ms. Manju Jetley, AOR Mr. Gaurav Agrawal, AOR Mr. Satya Mitra, AOR
Table of Contents
2. Petitioner seeks mandatory appointment of District Officers, Local Committees, and Nodal Officers, and the publication of annual compliance reports to ensure effective implementation of the POSH Act. (Para 1 )
3. Implementation is non-uniform across states; the District Officer's role is pivotal for the redressal framework; the penalty regime is currently ineffective due to gaps in the Rules. (Para 12 , 13 , 20 , 21 )
4. Where a public authority's discretion is coupled with an obligation, the word may in a statute must be construed as must or shall based on context. (Para 11 )
5. Directions issued for mandatory appointment of District Officers, LCs, and Nodal Officers, and for the Union Government to amend Rules to operationalize penalty provisions. (Para 22 )
6. Whether the power of the appropriate government to notify a District Officer under Section 5 of the POSH Act is directory or mandatory?
It is mandatory. Although the word may is used, the context of the statute and the pivotal obligations imposed on the District Officer under Section 20 make the appointment a command to ensure the redressal mechanism functions. (Para 11 )
7. What is the significance of the District Officer in the implementation of the POSH Act?
The District Officer is the pivotal functionary responsible for coordinating and ensuring accountability, including appointing nodal officers, constituting Local Committees, monitoring annual reports, and facilitating the recovery of sums as arrears of land revenue. (Para 7 , 8 , 10 , 11 )
8. How does the POSH Act provide redressal for women in the unorganized sector or domestic workers?
Through a horizontal mechanism where Local Committees (LCs) are constituted in every district to handle complaints where no Internal Committee exists, including cases involving domestic workers in dwelling places. (Para 6 , 7 , 14 , 15 )
9. What is the current legal lacuna regarding penalties for non-compliance under Section 26 of the POSH Act?
While Section 26 prescribes penalties for failing to constitute committees or submit reports, the Rules are silent on the specific reporting authority responsible for noting non-compliance and the authority empowered to collect fines. (Para 20 , 21 )
JUDGMENT :
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 claims1[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’] 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;
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 states2[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.] 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 set
