Initiatives for Inclusion Foundation & Anr. v. Union of India & Ors

Supreme Court of India · 2023 INSC 927 · 2023

Coram: S. RAVINDRA BHAT, DIPANKAR DATTA

JUDGMENT S. RA VINDRA BHAT, J. 1. The writ-petitioner organisation, approaches this court under Article 32 of the Constitution, seeking issuance of appropriate orders dire cting the respondents [Union government, and each State/UT gover nment – collectively referred to as ‘respondent-state’] to take steps for implementing the provisions of the Sexual Harassment at Workplac e (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 claims 1 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 (Preven tion, Prohibition, Redressal) Rules, 2013 without any further delay; 1 The following abbreviations have been used in the writ peti tion, 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 commi ttee’); and “ICC” or “IC” to mean ‘Internal Complaints Committee’. INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. b. Directing all the States/UTs to notify and appoint the Distri ct Oﬃ cers 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 Oﬃ cers 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 deﬁ ned in Section 2(o) of the Act; f. Directing all the States/UTs to ensure reporting and coll ection of Annual Compliance Reports from all workplaces by all the District Oﬃ cers 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 Oﬃ ce[r]s, containing information on the number of cases ﬁ led 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 prov isions 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 Distric ts in collecting annual compliance reports from ICCs and LCCs, role of District Oﬃ cers in collecting ﬁ nes for non-compliance of the Act and appropriate authority for collection of ﬁ nes; 2. Issue any other writ/order/direction as this Hon’ble Court m ay deem ﬁ t 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, 681 on ground. Further, in compliance with orders of this court, numerous states 2 ﬁ led aﬃ davits 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 setting up of Nodal Cells in the concerned Central Union Ministry and also with respect to setting up of Local Committee and appointment of Nodal Oﬃ cers in all districts of the country. This judgment pertains to these speciﬁ c issues and the suggestions made in this regard. 4. Recently, this court in another bench composition, in Aureliano Fernandes v. State of Goa & Ors . 3 had occasion to pass directions regarding the implementation of the POSH Act. These directions are comprehensive with regards to seeking compliance of the Act by the appropriate government [as deﬁ ned under Section 2(b)] and its many departments , authorities, institutions, etc.; the High Courts and the courts it supervises; speciﬁ c non- state authorities/organisations such as – statutory bodies of pr ofessionals (at the apex and state level), universities and other educational institutions, hospitals/nursing homes, etc. It speciﬁ cally directed NALSA and SLSAs, and the National Judicial Academy and State Judicial Academies, to develop modules for workshops and awareness programmes, in their capacities . Given that the directions passed overlap with the scope of the present writ petition that is before this court, they merit emphatic reiteration: “77. To fulﬁ l the promise that the PoSH Act holds out to working women all over the country, it is deemed appropriate to issue t he following directions: (i) The Union of India, all State Governments and Union Territories are directed to undertake a timebound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have 2 Including Nagaland, Madhya Pradesh, Meghalaya, Goa, Puducherry, Dad ra & Nagar Haveli, Karnataka, Manipur, Haryana, Telangana, Gujarat , Assam, Rajasthan, Himachal Pradesh, Chandigarh UT, Andaman and Nicobar, Uttara khand, Uttar Pradesh, Sikkim, Punjab, Odisha, Maharashtra, Jharkhand, NCT Delhi, Bihar, Tamil Nadu, Kerala, and Tripura. 3 Judgment dated 12.05.2023 in Civil Appeal No. 2482/2014. INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] constituted ICCs/LCs/ICs, as the case may be and that the composition of the said Committees are strictly in terms of the provis ions of the PoSH Act. (ii) It shall be ensured that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relev ant rules, regulations and internal policies are made readily availa ble on the website of the concerned Authority/Functionary/Organisation/ Institution/Body, as the case may be. The information furnished shall also be updated from time to time. (iii) A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State le vel (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals) , by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes. (iv) Immediate and eﬀ ective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/LC s/ ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, ti ll the inquiry is ﬁ nally concluded and the Report submitted. (v) The authorities/management/employers shall regularly conduc t orientation programmes, workshops, seminars and awa reness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women’ s groups about the provisions of the Act, the Rules and relevant regulations. (vi) The National Legal Services Authority (NALSA) and the State Legal Services Authorities (SLSAs) shall develop mo dules to conduct workshops and organize awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar. 683 (vii) The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation program mes, seminars and workshops for capacity building of members of the ICCs/ LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules. (viii) A copy of this judgment shall be transmitted to the Se cretaries of all the Ministries, Government of India who shal l ensure implementation of the directions by all the concerned Depart ments, Statutory Authorities, Institutions, Organisations etc. under the control of the respective Ministries. A copy of the judgment shall also be transmitted to the Chief Secretaries of all the States and Union Territories who shall ensure strict compliance of these di rections by all the concerned Departments. It shall be the responsibilit y of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued. (ix) The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transm it a copy of this judgment to the Medical Council of India, Council o f Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implem enting the directions issued. (x) Member-Secretary, NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Serv ices Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States. (xi) The Chairperson, Bar Council of India and the Apex Bodie s mentioned in sub-para (ix) above, shall in turn, transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be. INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] 78. The Union of India and all States/UTs are directed to ﬁ le the ir aﬃ davits within eight weeks for reporting compliances. Lis t after eight weeks.” 5. In addition to these detailed directions, a few aspects relating to the eﬀ ective implementation of the POSH Act highlighted in the present writ petition, require our attention. Authorities responsible for the implementation of the POSH Act 6. The POSH Act is comprehensive, and a code in itself, for prevention, punishment and redressal of sexual harassment complaints. It takes the remit of the remedy envisaged in the Vishaka Guidelines beyond the State and public functionaries, to a larger, much wider scope of ‘employee’ 4 and ‘employer’ 5 than any other legislation. As a result, it comes too, with its own challenges for eﬀ ective implementation. Anticipating this, th e Act 4 Section 2(f) reads as follows: “(f) “ employee ” means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either d irectly or through an agent, including a contractor , with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary ba sis or otherwise, whether the terms of employment are express or implied a nd includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name” 5 Section 2(g) reads as follows: “(g) “employer” means— (i) in relation to any department, organisation, under taking, establishment, enterprise, institution, oﬃ ce, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, und ertaking, establishment, enterprise, institution, oﬃ ce, branch or unit or such other oﬃ cer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf; (ii) in any workplace not covered under sub-clause (i), any p erson responsible for the management, supervision and control of the workplace. Explanation. —For the purposes of this sub-clause “manage ment” includes the person or board or committee responsible for formulation and adminis tration of polices for such organisation; (iii) in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees; (iv) in relation to a dwelling place or house, a pers on or a household who employs or beneﬁ ts from the employment of domestic worker , irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;” 685 provides for a tiered-model for its functioning, and in turn for monitoring of its implementation. 7. Each employer is legally mandated to constitute a n ICC under Section 4. To address the gaps where there is no IC C (i.e., for those working in a workplace that employs less than 10 work ers or where the employer themselves are the respondent), the Act pr ovides for an LC in each district, which is to be constituted by the Di strict Oﬃ cer under Section 6. The District Oﬃ cer is also tasked with de signating a nodal oﬃ cer in each block, taluka, and tehsil in rural or tribal area, and ward or municipality in the urban area, to receive complain ts and forward the same to the concerned LC 6 . These nodal oﬃ cers are meant to be the ﬁ rst point of contact in that sense, especially in situations where there is no ICC constituted. The ICC or LC after conducting inquiry (o r recording settlement 7 if such is the case), has to in its inquiry report recommen d to the employer, or District Oﬃ cer, respectively, what action is to be taken against the respondent (or in the situation of a false/malicious case 8 , against the complainant), in each case 9 . 8. The Petitioner has pointed out that there is a lack of clarity as to the District Oﬃ cer’s role in relation to the annual reports contemplated under Section 21 and 22. A reading of these provisions together oﬀ ers some clarity: both the ICC and LC prepare annual reports and subm it it either directly (in the case of the LC) or through the employer (here, the ICC), to the District Oﬃ cer 10 . While Section 21(1) does not mention the ICC report being forwarded to the District Oﬃ cer, Section 22 right after, states that the employer is mandated to mention in its report the number of cases lodged and disposed (if any), and even in the absence of a report it must intimate the numbers to the District Oﬃ cer 11 . Further, it is the District Oﬃ cer, in turn, who submits a brief report to the State Government 12 . 6 Section 6(2) of the POSH Act. 7 Section 10 of the POSH Act. 8 Section 14 of the POSH Act and Rule 10 of the Rules. 9 Section 13 of the POSH Act and Rule 9 of the Rules. 10 Section 21(1) of the POSH Act. 11 Section 22 of the POSH Act. 12 Section 21(2) of the POSH Act. INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] 9. The appropriate government [deﬁ ned under Sectio n 2(b)], is responsible at the last level, to monitor the imple mentation of this Act and maintain data on the number of cases ﬁ led and disposed of in respect of all cases of sexual harassment at workplace 13 . It is also obligated to take measures to publicise the Act 14 . Another built-in safeguard in the framework is that the appropriate government is empow ered to call for information and inspection of records 15 - wherein it may call upon an employer or District Oﬃ cer to furnish in writing any information relating to sexual harassment it may require, or produce any record required by an oﬃ cer authorised to carry out an inspection. 10. What is wholly apparent from this outline of the schem e of the Act, is that the role of the District Oﬃ cer, is pivotal; they are responsible for numerous aspects in the implementation of the Act. It is where the buck stops, so to say, in terms of coordination and accountability relating to the POSH Act. Even in terms of payment and fees – the District Oﬃ cer is responsible for payment of allowances to the Chairman and members of the LC 16 , which it receives from the agency set up by the State Government ( ref: Section 8 of the Act). Interestingly, the District Oﬃ cer also performs a duty in terms of enforcement; under Section 13, if the respondent in any case fails to pay any sum so directed, the ICC/LC can fo rward the order for recovery of the sum as an arrear of land revenue to the concerned District Oﬃ cer 17 . 11. Section 5 stipulates that: “5. The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Oﬃ cer. for every District to e xercise powers or discharge functions under this Act.” And Chapter VII, titled ‘Duties and Powers of the District Oﬃ cer’ states under Section 20: 13 Section 23 of the POSH Act. 14 Section 24 of the POSH Act. 15 Section 25 of the POSH Act. 16 Rule 5 of the POSH Rules 17 Second proviso to Section 13(3) of the POSH Act. 687 “20. The District Oﬃ cer shall, - (a) monitor the timely submission of reports furnished by the Local Committee; (b) take such measures as may be necessary for engaging non- governmental organisations for creation of awareness on sexual harassment and the rights of the women.” While the language used in Section 5 is ‘may’, the context of the statute – as elaborated above, and speciﬁ cally Section 20 (which uses ‘shall’ and obligates the District Oﬃ cer to perform pivotal functions) makes it quite clear that the District Oﬃ cer, is the most important functionary in the system, tasked with keeping the redressal and monitoring framework both intact, and smoothly running. In one of the ﬁ rst cases on the interpretation of ‘may’, this court in State of Uttar Pradesh v. Jogendra Singh 18 held: “There is no doubt that the word “’may” generally does not mean ‘must’ or ‘shall’. But it is well settled that the word “may” is capable of meaning “must” or ‘shall’ in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word ‘may’ which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word “may” out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive.” Treating Section 5 as directory, would leave a gaping hole in th e otherwise clearly delineated workﬂ ow and redressal mechanism, and the eﬃ cacy of this legislation, as a result, falls ﬂ at. 12. We have perused the replies/aﬃ davits ﬁ led by numerous states pursuant to receiving notice; seen together, they are marked by a lack of uniformity in terms of implementation of the Act. Numerous states have tried to force-ﬁ t the institutional requirements of th e Act, within their existing bureaucratic frameworks (for instance, some states have assigned its implementation to departments other than their Women and Child 18 [1964] SCR (2) 197 INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] Development Ministry, like the departments dealing with So cial Welfare, Social Security, Legislative Aﬀ airs, etc.). The aﬃ davit ﬁ led by the petitioner in response to the replies by the States, highlights the many la cunae and lack of uniformity in the implementation of the POSH Act, by various state governments. District Oﬃ cers were in most states notiﬁ ed after notice of this writ petition was served on them, and even among those states that have taken action – they have simply notiﬁ ed a speciﬁ c post as District Oﬃ cer, without providing any speciﬁ c details of the oﬃ cers, their contact information, etc. Most states have failed to provide documentation on constitution of L Cs, and even those who have, many have not constituted one in each district. Only a handful of states have provided any details of ‘nodal oﬃ cers’– but even among these, the nodal oﬃ cers are speciﬁ c posts notiﬁ ed, and not individuals at every taluka, ward, municipality, etc. as contemplated under Section 6(2). The information on annual reports is perhaps most alarming– only three have provided a consolidated report (relying on diﬀ ering sources, or just the LCs). Each State, has notiﬁ ed a diﬀ erent Ministry as the ‘nodal’ ministry for implementation of the Act – some have notiﬁ ed the S ocial Welfare Ministry or its allied departments, while others rely on the Women and Child Development department. 13. The general thrust of the aﬃ davits, especially that of the Union of India – has been to highlight the generation of awareness through a massive publicity campaign and issuance of advisories, publication of han dbooks, etc. However, it is quite plainly clear that though the generation of awareness is necessary, if a woman suﬀ ers sexual harassment at the workplace – the framework for redressal has to in fact exist. The failure to notify di strict oﬃ cers speciﬁ cally, has a snowballing eﬀ ect on appointment of the LCs and nodal oﬃ cers, in addition to other aspects. The complaint mechanism, and larger framework - no matter how eﬀ ective, remain inadequate if the authorities set out in the Act, are not duly appointed/notiﬁ ed. Therefore, the State/UT government must ensure that every district, at all t imes has a notiﬁ ed District Oﬃ cer; in case of vacancy caused by retirement, or any other reason, it must be duly remedied, to enable smooth transition between oﬃ cers, and ensure that there is always someone in-charge of this position. Furthermore, eﬀ ort has to be undertaken to orient, train and sensitise these district oﬃ cers, with regards to the provisions of the Act and Rules, with an emphasis on their roles and obligations. Similar range of activities must 689 be conducted for the nodal oﬃ cers appointed and LCs constituted by each district oﬃ cer. Operationalizing the Act for the unorganized sector 14. This Act is a pioneering legislation with a ‘horizontal’ mechanism and rights framework. A look at some of the deﬁ nitions - ‘emplo yee’ 19 , ‘employer’ 20 , and ‘workplace’ 21 drives this point home and demonstrates the scope of its horizontal application. Further, the inclusion of deﬁ nitions of ‘domestic worker’, and ‘unorganized sector’ in Section 2, which though not expressly referred to in the substantive content of the Act, is telling: “(e) “domestic worker” means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer;” “(p) “unorganised sector” in relation to a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any ki nd whatsoever , and where the enterprise employs workers, the number of such workers is less than ten.” The inclusion of these deﬁ nitions, has greatly expanded the scope of this Act’s application. An aggrieved domestic worker, thus, can take action against a person residing in the house they work at, using the LC framework; see Section 2(o) which deﬁ nes ‘workplace’ and includes under sub-clause (vi) “a dwelling place or house”: “(o) “workplace” includes— (i) any department, organisation, undertaking, esta blishment, enterprise, institution, oﬃ ce, branch or unit which is esta blished, owned, controlled or wholly or substantially financ ed by funds provided directly or indirectly by the appropriate Government or the 19 Section 2(f), extracted above in fn 4. 20 Section 2(g) extracted above in fn 5. 21 Section 2(o) of the Act. INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] local authority or a Government company or a corporation or a co- operative society; (ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, i ndustrial, health services or ﬁ nancial activities including production, supply, sale, distribution or service; (iii) hospitals or nursing homes; (iv) any sports institute, stadium, sports complex or comp etition or games venue, whether residential or not used for training, sport s or other activities relating thereto; (v) any place visited by the employee arising out of or dur ing the course of employment including transportation by the employer for undertaking such journey; (vi) a dwelling place or a house” 15. Consider next, the composition and role of the LC – which is the foundational body in the district, especially so for the unorganized sector. This committee is headed by a nominated chairperson who is an eminent woman in the ﬁ eld of social work and committed to the cause of women; one member is nominated from the women working in a block/taluka/tehsil (rural) or ward/municipality (urban); two more, of which at least one has to be a woman to be nominated amongst NGOs or associations committed to cause of women or a person familiar with the issues relating to sexual harassment. Further one must be with legal background/knowledge of the law, and one must belong to a Scheduled Caste, Scheduled Tribe, or Other Backward Class 22 . An LC is empowered with powers equivalent to a civil court 23 to conduct inquiry, issue summons, enforce attendance, etc., which is reﬂ ective of its importance in the framework. The inclusion of nominees from such NGOs is also helpful, because in a context where LC s may convey a sense of formality, women ﬁ nd it easier to approach local NGOs; 22 As per Section 6 and 7 of the Act. 23 Section 11 of the Act. 691 this is one of the ﬁ nding in a 2015 International Labour Organization (ILO) report 24 . However as pointed out, there is no avenue in the law for these NGOs to register or pursue the matter on behalf of such consenting women. Thus, the spreading of awareness relating to LCs and dispelling the air of formality, should form a priority of the highest level State, that seeks to implement the Act. 16. Lastly, it is relevant to note a major limitation of the Ac t, which depends on the Union Government to disburse funds to the States, which using an agency, can transfer the same to the district oﬃ cer 25 . Similarly Section 20 and 24, which obligate the district oﬃ cer and appropriate government to take steps to publicise the Act, is limited by Section 24 which states that: “The appropriate Government may, subject to the availability of ﬁ nancial and other resources, — (a) develop relevant information, education, commun ication and training materials, and organise awareness programmes, to advance the understanding of the public of the provisions of this Act providing for protection against sexual harassment of woman at workplace; (b) formulate orientation and training programmes for the members of the [Local Committee].” (emphasis supplied) In the absence of a delineated budget to pay the concerned oﬃ cers and conduct events for awareness and training, various LCs are rendered infructuous or remain vacant 26 . Therefore, the requirement of setting the budget for the implementation of this Act, at each district level, and thereafter state-level, to ascertain disbursal of grants from the Union Government. 24 ILO, Insights into working conditions in India’s garment (201 5) <https:// ruralindiaonline.org/en/library/resource/insights-into-w orking-conditions-in-indias- garment-industry/> (accessed on 17.10.2023). 25 Section 8 of the Act. 26 See NHRC’s report on status and Functioning of Local Com plaints Committees under the Act (2019) https://nhrc.nic.in/sites/default/ﬁ les/Status and Functioning of Local Complaints Committees under the Sexual Harassment.pdf (accessed on 17.10.2023). INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] 17. In this manner, the Act contemplates a wide scope for both the aggrieved woman, and the respondent, and place a public dut y on the employers, or LCs as the case may be, to ensure prevention, prohibiti on and redressal of complaints of sexual harassment. Operationalizing LCs and ensuring their eﬀ ectiveness, remains the key to making these remedies accessible to the unorganized sector. Discussion on speciﬁ c directions sought by the petitioners 18. The directions prayed for in the present writ petition, can be traced directly to the obligations and duties set out in the express p rovisions of this Act: Prayer Provision under the Act Public functionary in charge/ obligation on (a) Implement the provisions of the POSH Act and Rules - Union of India, State governments, and union territories (b) N o t i f y a n d appoint district oﬃ cers Section 5 State and UT governments (c) Appointing LCs in each district Section 6 and 7 District Oﬃ cer (d) A p p o i n t i n g nodal oﬃ cers Section 6(2) District Oﬃ cer (e) Co ns ti tu ti ng I C C s i n a l l workplaces as deﬁ ned under s. 2(o) Section 4 To be constituted by each employer (f) Ensure reporting and collection o f a n n u a l c o m p l i a n c e reports from all workplaces Section 21 and 22 District Oﬃ cers 693 (g) A n n u a l c o m p l i a n c e r e p o r t s a r e consolidated and the reports are published in the public domain Section 23 Appropriate government (h) Publicising the Act and Rules and organize a w a r e n e s s a c t i v i t i e s t o a d v a n c e understanding of the provisions of the Act S e c t i o n 2 4 ; Section 20(2) Appropriate government; District Officer to take measures for engaging NGOs for creation of awareness (i) Gist of important provisions will be displayed at all working places Section 19(b) Duty of each employer (j) Framing of rules and or direction to clarify aspects n o t co v e r ed u n d e r t h e prevailing Rules Section 29 Union Government 19. Prayer (g) directing the State/UT governments to ensure that the annual compliance reports collected by the District Oﬃ cers are consolidated and the reports are published in the public domain, requires some consideration. Section 23 of the Act reads as follows: “23. Appropriate Government to monitor implementation and maintain data. - The appropriate government shall monitor the implementation of this Act and maintain data on the number of cases ﬁ led and disposed of in respect of all cases of sexual harassment at workplaces.” INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] While the Act does not contemplate such publication in the pu blic domain, there is certainly merit in using this anonymised data on ca ses lodged and disposed, to consolidate statistics, that will reﬂ ect eﬃ cacy of the implementation of the Act. Therefore, while there is no need for such an express direction by this court, the Central Govern ment, and State Government, as the case may be, in the interest of transparency a nd good governance may consider to make these statistics public– the ac cess to which, would certainly have a positive impact on various stakeholders. This in turn will also strengthen the monitoring of the implementation of this Act. 20. Prayer (j) seeking the framing of rules and/or directions as provided in Section 29 of the Act is limited to thr ee lacunae pointed out by the petitioner: (i) to clarify the role of districts in collecting the annual compliance reports from ICCs and LCs; (ii) role of district oﬃ cers in collecting ﬁ nes for non-compliance of the Act; and (iii) identify the appropriate authority for collection of ﬁ nes. This court has considered the Rules, as they stand, closely; there is certainly some gaps. On point (i), this court’s discussion in paragraph 8 clariﬁ es the position – although the required amendment explicitly laying this out in the Rules, would be app ropriate. Points (ii) and (iii) are cause for real concern. 21. Section 26(1) of the Act deﬁ nes penalty to be imposed on the employer for failing to: constitute the ICC under Section 4, conduct inquiries under Section 13 and 14, submit annual compliance reports as per Section 22, or contravention of any other provision of the Act or Rules. Contravention of the Act, attracts a penalty of ₹ 50,000. However, the Rules are woefully silent on the reporting authority actually responsible for taking note of the non-compliance, and the public authority empowered to collect the sa id ﬁ ne 27 . Given the scheme of the Act, it would be recommended that the 27 The other provision which contemplates penalty, is Sec tion 17 [Penalty for publication or making known contents of complaint and inquiry proceedings] which states: “17. Where any person entrusted with the duty to handle or deal w ith the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, h e shall be liable for penalty in accordance with the provisions of the service rules app licable to the said person or where no such service rules exist, in such manner as may be prescribed.” Rule 12 of the POSH Rules has set the ﬁ ne to be Rs. 500 0, which is to be collected by the employer. 695 District Oﬃ cer itself, be made this authority – however, presently since they are not empowered to take appropriate action against employe rs for non- compliance of the Act, it renders the framework rather toothless. Similarly under Section 26(2) which provides further penalty (including cancellation of business license or withdrawal of renewal or approval of cancel lation of registration by the government or local authority required for carr ying on their business/activity) on an employer for continuous violations of the same provisions – does not mention the authority under the Act responsible for carrying out this function. Conclusion and Directions 22. Having regard to the above discussion, it is appropriate for t his court to issue the following directions (under the relevant heads) to ensure the eﬀ ective implementation of the POSH Act, and render it workable: A. Coordination between Union Government and State/U T Governments i. The Women and Child Development Ministry of every State/ UT, through its Principal Secretary, should consider identifying a ‘nodal person’ within the Department, to oversee and aid in coordination as contemplated under the POSH Act. This person would also be able to coordinate with the Union Government on matters relating to this Act and its implementation. ii. Each State/UT Government is to submit a consolidated report of its compliance with the below directions to the Union Government within 8 weeks. The latter is hereby directed to consolidate the various reports, identify any lapses in the compliance by the State and try to remedy it, before ﬁ ling a consolidated aﬃ davit of compliance – detailing the States’ compliance, and the Union Government’s action taken in regard to the direction within 12 weeks from the date of this judgment. B. Appointment of public authorities iii. The concerned Principal Secretary of the State /UT Ministry of Women and Child [or any other Department, subject to amendment of the Rules as per direction (vii) below], will personally ensure INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] appointment of a district oﬃ cer in each district within their territorial jurisdiction, as contemplated under Section 5 within four weeks from the date of this judgment. iv. Thereafter, each appointed district oﬃ cer (a) must in compliance of Section 6(2) appoint nodal oﬃ cers in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area; (b) must constitute a LC, as contemplated under Section 6 and 7 of the Act; and (c) ensure the contact details of these nodal oﬃ cers, and LCs, shall be forwarded to the nodal person within the State Government Ministry of Women and Child Development within 6 weeks from the date of this judgment. v. Thereafter, a circular/bulletin containing names of all district oﬃ cers, and their contact details (phone, address, and email) , along with a district wise chart of the various nodal oﬃ cers and their contact details, must be uploaded on the department’s website (or in the absence of one, on the main State government website) in a conspicuous location, along with a compiled version of the Act, Rules, and simple charts/explainers on the basics of the Act, within 6 weeks from the date of this judgment. C. Amendments and gaps in Rules that State must ﬁ ll vi. The Union Government ought to consider amending the Rules, so as to operationalise Section 26 of the Act, by recognising a reporting authority, and/or a ﬁ ne collecting authority. This direction must be read in light of the discussion in paragraph 8 (role of district oﬃ cer with regards to annual compliance reports) and paragraph 21 (on the penalty regime contemplated in the Act and resulting lacunae in the Rules) above. vii. The Union Government may also consider amending the Rules so as to identify one Department (preferably the Women and Child Department), and creating a ‘nodal person’ post within the said Department to be responsible for the coordination required in the 697 implementation of the Act [see direction (i)]. This will ensure greater uniformity in the implementation of the Act across the country. D. Training and capacity building viii. The District Officers and LCs should be manda torily trained regarding their important responsibilities. Given their position in the redressal framework contemplated in th e Act, they must first be sensitised to the nature of sexu al harassment, the gendered interactions that occur in the workspa ce, etc. The State Governments, must organise periodic, and regular training sessions at the District level which are t o be attended by the District Officer, members of the LC, and nod al officers [ref: Section 24(b)]. E. Larger efforts towards awareness ix. In furtherance of Section 24, the State/UT Gove rnments, and Union Government are hereby directed to set out the financial resources allocated and or needed, to developing ed ucational, communication and training material for spreading a wareness of the provisions of this Act to the public, and fo rmulate orientation and training programmes as elaborated i n direction (viii) above. This plan of action, must form part o f the compliance affidavit filed by each State. The discu ssion in paragraph 16 is to be read along with this directio n. x. The District Officers, once nominated by the Sta te are hereby directed to identify the non-governmental organisat ions working with women and their protection within the distr ict, and take action pursuant to their duty under Sectio n 20(b) for creation of awareness. xi. The appropriate government or district officers in question, must also undertake effort to spread awareness on th e existence of LCs, and make them approachable for the unorgani zed sector – thus operationalizing the horizontal impor t of this Act. INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] xii. The directions (iv) and (v) passed in Aureliano Fernandes v. State of Goa & Ors. 28 (supra) cover specifically the direction to authorities, management and employers to familia rize the members of the ICCs and LCs of their duties and det ailed step-wise manner in which an enquiry ought to be conduc ted on receiving a complaint of sexual harassment; cond uct orientation programmes, workshops, seminars, awaren ess programmes, etc. and to educate women employees and women groups about the Act, Rules, and regulations are reiterated. The modules prepared by NALSA [as per d irection (vi) in Aureliano Fernandes] to conduct workshops a nd organize awareness programmes to sensitise authorit ies, managements, employers could be used in this regard . xiii. It is relevant to add here that the Ministry of Women and Child Development, Government of India, has prepared a Ha ndbook for implementation of POSH Act 29 , which serves as a useful guide for not just employees seeking information, b ut also more pertinently those who are nominated or appoint ed as members of the ICs (by the employer) or LCs (by the District Officer). It is hereby directed that a targeted eff ort be made to share this information with each District Officer, who may in turn disseminate it to their respective LCs, the nodal of ficers appointed under Section 6(2), and employers who con stitute their own ICCs. F. Annual Compliance Reports xiv. Due compliance with Section 21(1) and (2), and Section 22, must be undertaken by each District Officer, of the State – including collecting the reports from the IC/employ ers (or information where no report is available), and from the LC, and preparation of a brief report to be shared with the State 28 Judgment dated 12.05.2023 in Civil Appeal No. 2482/2014.R 29 Government of India, Handbook on Sexual Harassment of Women at Workplace (2015) https://wcd.nic.in/sites/default/ﬁ les/Handbook%20on%20Sexual%20Harassment%20 of%20Women%20at%20Workplace.pdf (accessed on 26.09.2023). 699 government. The State/UT Governments is hereby dire cted to create a Standard Operating Procedure (SOP) includi ng the procedure, and timelines for this process, so as to enable it to, in turn, comply with Section 23 of the Act, i.e., m onitoring implementation and maintaining data. This direction may be read in light of the discussion contained in par agraph 18 above. G. Monitoring of ICs and compliance by employers xv. The directions passed in Aureliano Fernandes v. State of Goa & Ors. 30 (supra) address most specifically, the constitutio n of ICs – in public establishments [falling broadly wit hin Section 2(o)(i)] and some private establishments – such as bodies governing professional associations, etc.; those di rections are hereby reiterated, to avoid multiplicity or overlap of efforts. It is however further, directed that efforts made m ust be in line with the scheme of the Act, and through the au thorities so designated for the various roles. xvi. Similarly, directions are hereby made to hospi tals, nursing homes, sports institutes, stadiums, sports complex, or competition or games venues [as defined in Section 2(o)(iii) and (iv)] to establish ICs, and report compliance a s per the duties under this Act. xvii. The District Officer must be supplied a list of establishments (compiled by the relevant departments of the State/ UT Government) that fall within the scope of Section 2 (o), so that they may write to them and ensure that they ar e well versed with the provisions relating to employers, a nd their duties (including constitution of ICC under Section 4, duties under Section 19, etc.) and are implementing them i n letter and spirit. This will also enable collection of annu al reports, as contemplated under Section 21. The consequent dir ection to all private sector workplaces under Section 2(o) (ii) can 30 Judgment dated 12.05.2023 in Civil Appeal No. 2482/2014. INITIATIVES FOR INCLUSION FOUNDATION & ANR. v. UNION OF INDIA & ORS. [S. RAVINDRA BHAT, J.] be passed once the District Officer is able to disc ern an exhaustive list of entities. 23. List this matter in the first week of February 2024, for further compliance.