State/UT Government Must Ensure That Every District Has A Notified District Officer: SC Issues Directions Under POSH Act
The Supreme Court has issued directions under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 i.e., POSH Act. It said that State or Union Territory Government must ensure that every district has a notified District Officer.
The petitioner, an organisation, had approached the court under Article 32 of the Constitution seeking issuance of appropriate orders directing the respondents to take steps for implementing the provisions of POSH Act read with POSH Rules.
The two-Judge Bench comprising Justice S. Ravindra Bhat and Justice Dipankar Datta held, “The failure to notify district officers specifically, has a snowballing effect on appointment of the LCs and nodal officers, in addition to other aspects. The complaint mechanism, and larger framework - no matter how effective, remain inadequate if the authorities set out in the Act, are not duly appointed/notified. Therefore, the State/UT government must ensure that every district, at all times has a notified District Officer; in case of vacancy caused by retirement, or any other reason, it must be duly remedied, to enable smooth transition between officers, and ensure that there is always someone in charge of this position.”
Furthermore, the Bench said that effort must be undertaken to orient, train and sensitise these district officers, with regards to the provisions of the Act and Rules, with an emphasis on their roles and obligations and that similar range of activities must be conducted for the nodal officers appointed and LCs (Local Committees) constituted by each district officer.
Senior Advocate Sanjay Parikh and Advocate Srishti Agnihotri represented the petitioners while Advocates Suhseni Sen, Manisha Chava, and Rustam Singh Chauhan represented the respondents.
Over the course of many hearings, the court, with the assistance of the counsels involved in the matter, undertook an exercise to delineate lacunae in the implementation of the Act, on ground. Further, in compliance with orders of the court, numerous States filed affidavits highlighting steps taken by their respective governments in furtherance of implementing the Act and Rules in letter and spirit. On February 20, 2023, the counsels addressed the 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 Officers in all districts of the country. This judgment pertains to the specific issues and the suggestions made in this regard.
The Supreme Court in view of this noted, “What is wholly apparent from this outline of the scheme of the Act, is that the role of the District Officer, 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 Officer is responsible for payment of allowances to the Chairman and members of the LC16, which it receives from the agency set up by the State Government (ref: Section 8 of the Act). Interestingly, the District Officer 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 forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.”
The Court observed that the District Officer is the most important functionary in the system, tasked with keeping the redressal and monitoring framework both intact, and smoothly running. It said that treating Section 5 as directory, would leave a gaping hole in the otherwise clearly delineated workflow and redressal mechanism, and the efficacy of this legislation, as a result, falls flat.
Having regard to the above analysis, the Court issued the following directions under the relevant heads to ensure the effective implementation of the POSH Act and render it workable:
A. Coordination between Union Government and State/UT Governments
“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”, it mentioned.
B. Appointment of public authorities
The Court under this head observed that the concerned Principal Secretary of the State/UT Ministry of Women and Child (or any other Department, subject to amendment of the Rules), will personally ensure appointment of a district officer in each district within their territorial jurisdiction, as contemplated under Section 5 within four weeks from the date of the judgment.
C. Amendments and gaps in Rules that State must fill
The Court said, “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 fine collecting authority. … 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 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
Under this head, it is mentioned that the District Officers and LCs should be mandatorily trained regarding their important responsibilities.
E. Larger efforts towards awareness
“In furtherance of Section 24, the State/UT Governments, and Union Government are hereby directed to set out the financial resources allocated and or needed, to developing educational, communication and training material for spreading awareness of the provisions of this Act to the public, and formulate orientation and training programmes as elaborated in direction (viii) above”, it ordered.
F. Annual Compliance Reports
It directed under this head that 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/employers (or information where no report is available), and from the LC, and preparation of a brief report to be shared with the State government.
G. Monitoring of ICs and compliance by employers
“The directions passed in Aureliano Fernandes v. State of Goa & Ors. 30 (supra) address most specifically, the constitution of ICs – in public establishments [falling broadly within Section 2(o)(i)] and some private establishments – such as bodies governing professional associations, etc.; those directions are hereby reiterated, to avoid multiplicity or overlap of efforts. It is however further, directed that efforts made must be in line with the scheme of the Act, and through the authorities so designated for the various roles”, clarified the Court.
Accordingly, the Apex Court listed the matter in the first week of February, 2024 for further compliance.
Cause Title- Initiatives for Inclusion Foundation & Anr. v. Union of India & Ors. (Neutral Citation: 2023 INSC 927)