On February 2, 2024, a Bill was introduced before the Rajya Sabha, proposing an amendment to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act 2013). This proposed amendment comes more than a decade after the original Act was enacted, reflecting the evolving understanding of workplace safety and the challenges faced by women in reporting harassment.
The proposed amendments primarily focus on two specific areas:
- The timeframe provided for complainants to file sexual harassment complaints
- The informal process for addressing such complaints.
Timeline for filing complaints of sexual harassment
Currently, under the PoSH Act 2013, complainants are required to file a complaint of sexual harassment within 90 days of the date of the incident. The PoSH Act 2013 also provides the Internal Committee (IC) with the power to extend the period to an additional 90 days if the delay was due to circumstances the IC found sufficient.
However, the 90-day limit has often been criticised for being restrictive and insensitive to the psychological and emotional toll that harassment can take on a survivor. For many employees, the experience of sexual harassment is followed by confusion, fear, and concern about workplace repercussions, all of which can delay the decision to report.
The proposed amendment aims to increase the time for a complainant to file one year from the date of the incident, an extension from the current timeline. This proposed change acknowledges the need for survivors to have adequate time to reflect, seek counselling, or consult trusted individuals before deciding to take formal action.
Studies have found that many people facing sexual harassment fear the prospect of recounting a distressing experience. This makes it essential to provide sufficient time for complainants to process and prioritise their mental health before filing a formal complaint of sexual harassment. Extending the limitation period could also encourage more individuals to come forward, especially in workplaces where awareness about the PoSH Act is still limited.
On the flip side, having no timeline for filing a complaint of sexual harassment can also impact the ability of the Internal Committee (IC) to conduct an effective inquiry. Inquiries rely on evidence and delayed reporting can impact the ability to collect evidence. Witness recollection fades over time, and key records such as messages or emails may no longer be available. Therefore, the one-year timeframe attempts to strike a balance between protecting complainants’ rights and ensuring that the inquiry process remains fact-based and effective.
Legal practitioners have suggested that the amendment, if passed, could also lead to the need for organizations to re-evaluate their internal procedures and update their PoSH policy documents to reflect the extended timeline for filing complaints.
Omission of the conciliation process under PoSH Act 2013
The proposed amendment also suggests the removal of the conciliation process or the informal process under Section 10 of the PoSH Act 2013. The informal process is a settlement between the complainant and the respondent.
The conciliation process currently outlined in the PoSH Act 2013 creates numerous checks and balances to ensure that the process is effective and takes into consideration the seriousness of sexual harassment. It serves as an alternative for complainants who do not wish to undergo a lengthy inquiry but still seek acknowledgement or behavioural correction from the respondent.
The PoSH Act 2013 highlights that it is entirely the choice of the complainant as to which process the IC should be taking. Unlike many other jurisdictions, the PoSH Act 2013 specifically outlaws any monetary settlement through this process. This is an important safeguard to ensure that the process does not become a negotiation or transaction, but rather remains focused on restoring a sense of dignity and safety to the complainant.
Envisaging a scenario where the parties may find the outcome ineffective, the PoSH Act 2013 allows the parties to revert to the formal process of redressal. This flexibility has, until now, been viewed as one of the more progressive features of the law, giving agency to the complainant while maintaining procedural integrity.
The conciliation process can be beneficial in complaints where the complainant does not wish to go through the inquiry process but still receives a resolution of the complaint of sexual harassment. However, critics argue that conciliation, even when voluntary, can sometimes lead to subtle coercion, particularly in hierarchical workplaces or smaller organisations where power dynamics are at play. This could be one reason behind the proposed omission of this section.
If the amendment passes, organisations will need to remove any reference to conciliation from their PoSH policies and ensure that their IC members are trained accordingly. This could also lead to a higher volume of formal inquiries, making it essential for IC members to be equipped with strong procedural and documentation skills.
Serein insights
The proposed amendments to the PoSH Act 2013 are still in the early stages and have not yet been implemented. These proposed changes will undergo multiple parliamentary processes before they become law. Therefore, there is currently no immediate action required for compliance with the PoSH Act 2013.
However, organisations would be wise to stay informed about these developments and prepare to adapt their policies once the amendments are finalized. The expansion of complaint timelines and removal of the conciliation process could significantly reshape how workplace sexual harassment cases are managed in India.
At Serein, we continue to track legal updates and translate them into actionable insights for organisations, ensuring compliance while maintaining empathy and fairness in implementation. Reach out to us at hello@serein.inc