The Silent Gap in POSH Enforcement: What Happens When the Internal Committee Falters?

[Prem is a student at National Law School of India University.]

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 (PoSH Act or Act) seeks to prevent sexual harassment of women at workplaces. The Act mandates the constitution of an internal committee (IC) in every workplace. It allows a victim of workplace-harassment to complain to this committee to redress instances of harassment. This committee is empowered to take cognizance of such complaints, conduct an inquiry and render binding recommendations to the employer. However, more than a decade after its promulgation, it is known to suffers from some well-documented enforcement issues, such as understaffed, untrained and unrepresentative ICs.

This article focuses one such implementation-gap in the Act. In particular, it argues that the remedial structure of the Act falls short of addressing circumstances where the IC itself fails to perform its duties by not rendering a recommendation. In response, it excavates conflicting recent High Court cases where on the invocation of writ jurisdiction to deal with the IC’s failures. However, it argues that admitting writs may not only be doctrinally incorrect, but also a slippery slope for High Courts. Finally, it proposes certain solutions to address this implementation-gap.

How the Act’s Remedial Framework Falls Short

This section walks through the remedial scheme of the Act to demonstrate that each given remedy falls short of addressing the IC’s failure. While the IC is obligated to render its findings within 10 days of the inquiry (Section 13(1)), the Act provides no remedy where the recommendation is not rendered – either because the complaint is simply not recognized, or the inquiry is unduly delayed.

In this light, the overall structure of the remedial framework in the Act is worth exploring. It offers 4 forms of recourse to a complainant. The first and primary remedy is a complaint to the IC (Section 9). Second, an appeal is allowed from the recommendations of the IC (Section 18). Third, a complaint may be made to the local committee constituted at the district level (if the IC is not required to be constituted in an organisation or if the complaint is against an employer) (Section 6(2)). Finally, a penalty can be levied against the employer under Section 26.

However, all these remedies fail to account for scenarios where the IC simply delays the inquiry, fails to initiate an inquiry, or recognize a complaint. This is because an appeal in Section 18 cannot be availed unless the IC has already rendered a recommendation. It allows appeals only against recommendations made by the IC, or its non-implementation. On the other hand, Section 6(2) allows complaints to the local committee only where the IC has not been constituted or the complaint is against the employer.

Finally, the penalty provision penalizes the employer only where he fails to act on a recommendation of the IC, or report IC cases to the local committee. It does not envisage situations where the IC fails altogether. In any case, penalties are deterrent at best, and do not address the complainant’s concern or the underlying failure of the IC. Where the IC simply delays/fails to render its recommendations, none of these provisions can be resorted to.

To make matters worse, Section 27 expressly bars courts from taking cognizance of offences under the Act except via the appellate route. Thus, it is submitted that the scheme of the Act does not provide viable recourse where the IC itself falters in its investigation.

Can This Issue be Amenable to Writ Jurisdiction?

One emerging response to this implementation gap is the invocation of writ jurisdiction. In 2024, several petitioners took recourse to the High Courts’ writ jurisdiction where the IC failed to perform its duties. At the same time, courts have also refused to admit petitioners through this route.

In July 2024, the Madras High Court admitted a writ petition where it found that the IC failed comply with the principles of natural justice, since the accused was not given witness statements or the right to cross-examine. Just a month later, the MP High Court admitted a writ on the same grounds. On the other hand, the Delhi High Court in 2024 refused to admit a writ on the grounds that the IC of a company falls in the ambit of a “private organization and as such, does not come under the definition of 'state' under Article 12 of the Constitution”. Thus, a conflict emerges on the maintainability of writ petitions against an IC’s dereliction of duties.

However, the failure of the IC most squarely arose in the Ola case before the Karnataka High Court in December 2024 and is thus the most instructive to our understanding of how the IC could be subject to writs. In this case, the petitioner was brought a writ against the inaction of the IC, which refused to exercise its powers on the grounds that it did not have jurisdiction over the complaint. In response, the company contested the maintainability of the writ petition by arguing that it was a “private limited company which did not qualify as an instrumentality of the state”, nor was it performing any public duty, since “there is no statutory obligation cast upon Ola to provide taxis services”. The court ultimately holds that it is maintainable since the entity in question was the IC, which exercises the public function of “protecting the safety and security of women at workplaces.”

It is argued that this admittance is a doctrinally incorrect in the scheme of writ jurisprudence.  On first principles, the text of Article 226 of the Constitution read alongside Article 12 makes it clear that writs under Article 226 can be issued only against persons or bodies having ‘the authority of the state’. Over time however, judicial approaches have gradually expanded Article 226, allowing the admittance of writs based on the public ‘nature’ of the functions exercised by a body. Even purely private bodies have become amendable to writ jurisdiction, as long as they exercise ‘public functions’.  

In this light, the scope of public functions determines whether an ICC is amenable to writs. Evolving judicial approaches have considered ‘public functions’ to be synonymous with those exercised by the State as a sovereign. In G Bassi, a 2-judge bench of the Supreme Court took a narrower view of public functions as being “similar to or closely related to those performable by the State in its sovereign capacity.” Even as recently as 2022, another 2-judge bench of the Supreme Court has held that a function would not qualify as ‘public’ since it was not in “a field connected with functions of the government.” In 2024, the Delhi HC dismissed a writ petition filed against X (formerly Twitter), holding that public functions are those “integral to the State” such that they are “governmental in nature”.

While the objective of preventing sexual harassment is certainly of public importance, it would be difficult to characterize it as being ‘connected with the functions of the government’, particularly since ICs adjudicate private workplace complaints of sexual harassment, not necessarily connected with a governmental function like public welfare. Unlike criminal proceedings which are avowedly concerned with public welfare, IC proceedings are private and civil in nature. Thus, it may be a stretch to argue that ICs perform ‘public functions.’

However, the existence of a ‘public function’ is only one of the elements courts have referred to (among others) in deciding the scope of writ jurisdiction. Two other factors may be relevant here – the exercise of ‘statutory functions’, and the existence of an appellate remedy. The existence of an appellate remedy must be ‘efficacious’, such that they can take recourse to the appellate route first. As we have noted above, the appeal in the Act would not ‘efficacious’ to remedy a dysfunctional IC, since it is limited to circumstances where the IC has already rendered a recommendation.

On the other hand, the exercise of a statutory function is relevant, but not determinative of writ jurisdiction. In Federal Bank, it was argued that since the bank performed duties in pursuance of the regulatory functions of the Banking Regulation Act 1949, it was exercising functions of a statutory nature. The Court held that this does not automatically endow it with a public character – which remains the primary determination. Thus, the mere fact that the IC exercises functions in pursuance of a statute would not make it amenable to writ jurisdiction – the determination of writ jurisdiction is still anchored by the ‘public nature’ of duties to be exercised by the body in question.

It emerges that the factors required to admit a complaint under the strict contours of writ jurisdiction would not be met against ICs which falter in their inquiry and cognizance of complaints. The fallout of making this issue amenable to writ jurisdiction is to open the floodgates for litigating before High Courts what ought to be handled by the mechanisms provided for in the POSH Act.

Thus, while the applicability of writ jurisdiction has seen some discordant notes with courts swinging in both ways, it is submitted that the maintaining writs in response to the failures of the IC is both doctrinally and normatively undesirable.

Way(s) Out

The most natural response to this issue would be an amendment of the Act. Such an amendment may allow the appellate court to take cognizance of delayed inquiries. Indeed, there is no reason why the appellate court should be disempowered to handle situations where the IC fails in rendering a recommendation. As it stands however, their jurisdiction under the Act simply does not extend to adjudicating the failure of the IC's duties.

Besides a legislative amendment, another viable route is the rule-making power in Section 30. This is called a ‘Henry VIII’ provision – a broad power granted to the government to ‘remove any difficulty’ to ‘give effect’ to the provisions of the Act. For immediate redressal, the government may promulgate such amendments through this provision. However, it is important to point out some challenges in resorting to this route. The Supreme Court has held that where an exercise of power under Henry VIII clauses could “in substance amount to exercise of legislative authority, [which] cannot be delegated to an executive authority.” It is possible that using this power to address deficiencies with the IC would effectively tread into the legislative field.

Despite this, resorting to the power to remove difficulties is still a viable route. This is because the power to remove difficulties was historically crafted to deal with scenarios where a legislation suffered from a gap which it ideally ought to have provided for. In Gammon India, a Constitution Bench of the Supreme Court upheld the use of a Henry VIII provision since it was used to “give effect to the provisions of the Act.”  Notably, it did so despite the existence of an appellate remedy in the Act. In any case, the existence of such a remedy would not bar the use of this power, since it is now settled that the exercise of this power is valid as long as it gives effect to the provisions of the Act. Thus, an order made to remedy a gap such as this in the POSH Act would safely fall within the contours of this power, since it would be in pursuance of the scheme and objects of the Act.

In any case, the provision mandates the government to table the amendments made in the order before Parliament (Section 30(2)). Once Parliament ratifies such an order, any concerns of excessive delegation or executive overreach are put to rest. As such, it is unlikely to be classified as legislative overreach. Thus, this power may be used to speedily promulgate such an amendment before the next session of Parliament.

Regardless of the route eventually adopted, a problem exists. Fortunately, simply tweaking the Act can put it to rest. Such an amendment would promote the objects of the Act by allowing victims to access speedy and cost-effective resolution before courts of the first instance, while also ensuring that the legal strictness of the High Court’s writ jurisdiction is maintained.