State/UT Obligations: Appointing ‘District Officers’ under POSH Act
The Supreme Court has issued a comprehensive set of directives to both the Union and State/UT governments. These instructions aim to enforce the Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) and its associated Rules effectively.
A notable directive from the Court emphasizes the compulsory appointment of a “District Officer” as per Section 5 of the Act. While Section 5 allows the appropriate Government to designate a District Magistrate, Additional District Magistrate, Collector, or Deputy Collector as a District Officer, the Court interprets this as an obligatory requirement.
“Considering Section 5 as non-mandatory would create a significant gap in the well-defined process and redressal structure, ultimately undermining the effectiveness of this legislation,” noted a panel comprising Justices S Ravindra Bhat and Dipankar Datta.
This panel issued these directives in response to a writ petition filed under Article 32 of the Indian Constitution. The petitioner, ‘Initiatives For Inclusion Foundation,’ sought the efficient enforcement of the POSH Act.
The District Officer plays a crucial role in the implementation of the POSH Act.
Every employer must establish an Internal Complaints Committee under Section 4. To bridge the gaps in cases where no ICC exists (such as workplaces with fewer than 10 employees or where the employer is the accused), the Act specifies the creation of a Local Committee in each district. This committee is to be formed by the District Officer.
Highlighting the expanded responsibilities of the District Officer, the Court pointed out that the Officer is additionally responsible for appointing a nodal officer in rural or tribal areas, including blocks, talukas, and tehsils, as well as in urban areas, covering wards and municipalities. These nodal officers are designated to receive complaints and transmit them to the respective Local Committee.
The Court emphasized that the District Officer’s role is central and encompasses various responsibilities in executing the POSH Act. They serve as a focal point for coordination and accountability regarding the POSH Act. The District Officer is also in charge of disbursing allowances to the Local Committee’s Chairperson and members, which it receives from the State Government’s designated agency.
Referring to the affidavits submitted by the Union of India, the petitioner emphasized that these affidavits underscored the importance of creating awareness through an extensive publicity campaign and the issuance of advisories, as well as the publication of handbooks, among other efforts.
However, it is evident that while raising awareness is crucial, the actual framework for addressing workplace sexual harassment must be in place when a woman experiences such harassment.
The Court noted that the failure to promptly appoint and notify District Officers has a cascading impact on the establishment of Local Committees and nodal officers, along with various other elements. The complaint mechanism and the broader framework, regardless of their effectiveness, fall short when the authorities outlined in the POSH Act are not duly appointed or notified.
Hence, it is imperative that State/UT governments maintain a continuous presence of a designated District Officer in every district. In cases of vacancies due to retirements or other reasons, prompt action should be taken to ensure a seamless transition between officers, guaranteeing the uninterrupted functioning of this position. Additionally, comprehensive efforts should be made to educate, train, and sensitize these District Officers concerning the POSH Act and its accompanying Rules, with a strong focus on their roles and responsibilities. A similar array of activities must be undertaken for the nodal officers appointed and the Local Committees constituted by each District Officer.
In this regard, the Court has issued the following directives:
- The concerned Principal Secretary of the State/UT Ministry of Women and Child (or any other relevant Department) shall personally oversee the appointment of a district officer in each district within their jurisdiction, as mandated by Section 5, within four weeks from the date of this judgment.
- Following the appointment, each designated district officer shall:
- Comply with Section 6(2) by appointing nodal officers in every block, taluka, and tehsil in rural or tribal areas, as well as in wards or municipalities in urban areas.
- Establish a Local Committee (LC), as specified in Section 6 and 7 of the POSH Act.
- Ensure that the contact details of these nodal officers and LCs are forwarded to the designated authority within the State Government’s Ministry of Women and Child Development within six weeks from the date of this judgment.
Every District Officer in the State must ensure full adherence to the requirements of Section 21(1) and (2), as well as Section 22. This includes gathering reports from the Internal Committee (IC) or employers (or relevant information in cases where no report is available) and the Local Committee (LC). Subsequently, they are responsible for compiling a concise report to be shared with the State government.
Implementing the POSH Act for the Unorganized Sector
The petitioner emphasized that the Act’s inclusion of definitions for ‘domestic worker’ and the ‘unorganized sector’ has broadened the extent of its applicability.
Moreover, the structure and function of the LC, which serves as the cornerstone in the district, are of particular significance for the unorganized sector. This committee is led by an appointed chairperson, an esteemed woman with a strong dedication to women’s causes and expertise in the field of social work. One member is nominated from the female workforce in a rural block, taluka, or tehsil, and from urban wards or municipalities. Two additional members, with at least one being a woman, are selected from NGOs or associations actively engaged in women’s causes or individuals well-versed in matters concerning sexual harassment.
The involvement of nominees from these NGOs is beneficial, as LCs may sometimes appear formal, making it more comfortable for women to reach out to local NGOs. This finding is highlighted in a 2015 report from the International Labour Organization (ILO).
However, it was noted that the law lacks a provision for these NGOs to formally register or advocate for the concerns of consenting women. Consequently, it is imperative that spreading awareness about LCs and dispelling the perception of formality should be a top priority for state authorities at the highest level, especially when striving to effectively implement the POSH Act.
The directives issued in this regard are as follows:
Coordination between Union Government and State/UT Governments
Regarding the coordination between the Union Government and State/UT Governments, it was mandated that the Women and Child Development Ministry of each State/UT, led by its Principal Secretary, should assess the possibility of designating a ‘nodal person’ within the Department. This nodal person’s role would encompass facilitating and supervising the coordination stipulated under the POSH Act, including interactions with the Union Government concerning POSH Act and its execution.
Furthermore, each State/UT Government is required to furnish a comprehensive report demonstrating their adherence to the aforementioned instructions to the Union Government within a period of 8 weeks.
Amendments and Rule Gaps Requiring State Action
The Union Government should contemplate making amendments to the Rules, with the aim of implementing Section 26 of the Act effectively. This would involve establishing the roles of a reporting authority and/or a fine collecting authority. This directive should be interpreted in the context of the discussions in paragraph 8, which pertains to the district officer’s responsibilities regarding annual compliance reports, and paragraph 21, which addresses the penalty system outlined in the POSH Act and the existing gaps in the Rules, as outlined in the Judgment.
Training and capacity-building
It is imperative to provide mandatory training to District Officers and Local Committees (LCs) concerning their pivotal roles. Given their essential positions in the redressal structure outlined in the POSH Act, they should undergo initial sensitization on aspects such as the nature of sexual harassment and gender dynamics in the workplace. Moreover, State Governments are instructed to conduct regular and periodic training sessions at the district level, which must be attended by District Officers, LC members, and nodal officers.
Larger efforts towards awareness
In alignment with Section 24, both State/UT Governments and the Union Government have been instructed to delineate the financial resources earmarked or required for the creation of educational, communication, and training materials aimed at promoting awareness of the POSH Act’s provisions among the public. Additionally, they are tasked with devising orientation and training programs.
Annual Compliance Reports
Every District Officer within the State must ensure full adherence to the requirements of Section 21(1) and (2), as well as Section 22. This includes gathering reports from the Internal Complaints Committee (IC) or employers (or relevant information when no report is available) and from the Local Committee (LC). Subsequently, they are responsible for compiling a concise report to be shared with the State government.
Monitoring of ICs and compliance by employers
In accordance with the directives outlined in the case of Aureliano Fernandes v. State of Goa & Ors., which particularly pertain to the formation of Internal Complaints Committees (ICs) in public and certain private establishments, it is mandated that all efforts align with the POSH Act’s framework and are carried out through the designated authorities for their respective roles.
Likewise, hospitals, nursing homes, sports institutes, stadiums, sports complexes, and competition or games venues are instructed to establish ICs and promptly report their compliance with the obligations defined in POSH Act.
Title of the Case: Initiatives For Inclusion Foundation vs. Union of India