The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, (‘POSH Act’) was introduced in India in 2013 to prevent and redress complaints of sexual harassment made by women in connection with the workplace. While the Act provides for a civil redressal mechanism for sexual harassment, it is limited in its application because of the ‘employer-employee’ nexus. This requires that the respondent in complaints of sexual harassment be a formal employee of the organisation. However, this position is problematic and going forward, the scope of the Act ought to be enlarged and the employee-employer nexus should be relaxed.

The POSH Act provides for the setup of two kinds of quasi-judicial bodies to conduct inquiries regarding cases of sexual harassment of women at the workplace: Internal Committees (‘IC’) at individual organisations and Local Committees (‘LC’) at the district level. However, a key conceptual issue in the Act is that the jurisdiction of ICs and LCs is restricted to cases where the perpetrators of sexual harassment, known as ‘respondents’ under the Act, are formal employees. This means that customers, clients, and contractors, who may be perpetrators of harassment, are excluded as ‘respondents’ under the Act; no inquiry can be conducted against them by an IC or an LC. We illustrate the limitations of this position using the example of gig workers – i.e, workers in non-traditional employment arrangements, including both platform-based and independent workers. While it would be beneficial to include gig workers within the broader labour law regulatory framework in India, we make a limited argument in this piece to at least include them within the fold of ‘employment’ to fulfil the purposes of the POSH Act.

The idea of the ‘workplace’ has changed drastically over the past few years, with the rise of gig work and decentralised employment structures. The POSH Act has struggled to adapt to the realities of ‘employees’ at modern workplaces. A single-judge bench of the Karnataka High Court in India recently acknowledged this gap in a case involving Ola (a ride-sharing aggregator platform). The IC set up at Ola had refused to hear a case of an Ola driver sexually harassing a customer, stating that Ola drivers were not formal employees and were merely ‘partners’ on the aggregator platform. The Court disagreed, observing that such aggregator platforms in fact have effective “control” and management of their contracting drivers. In this case, Ola controlled the onboarding of drivers, registration, revenue-sharing, conditions of work, resolution of disputes, and termination. Therefore, the Court went on to call terms such as “driver-partners” and “driver-subscribers” a mere façade that ought to be scrutinised. The Court, undertaking a purposive interpretation, held that Ola and their drivers would classify as employer and employees respectively under the POSH Act which anyway aims to cast a wide net. Thus, survivors of sexual harassment ought to be able to access the IC set up by Ola to complain against drivers who are perpetrators. However, the decision was subsequently stayed by a division bench, thus leaving the issue unresolved. The Court’s reasoning, we submit, is sound. It highlights the need for the POSH Act to expand its scope to cover varied forms of employment arrangements, even if they do not resemble the traditional employer-employee relationship. Currently, gig workers may not receive protection under the Act either as complainants or as respondents. This leaves out a significant portion of India’s workforce (around 10 million workers) from the coverage of this Act.

The POSH Act was designed to ensure dignity and safety at work, and provide a simple, accessible, civil redressal mechanism for complaints of sexual harassment. Unfortunately, its current framework is too narrow to achieve this goal. The rigid employer-employee nexus limits the scope of complainants and respondents under this Act, thus leaving many people vulnerable and at the mercy of the overburdened criminal justice system in India. Going forward, the POSH Act should be reimagined to reflect the realities of today’s diverse and dynamic workplaces.