Strengthening the Implementation of the POSH Act – The Critical Role of Data

In February 2013, the Indian Parliament passed the historic Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, (commonly referred to as the POSH Act) to protect women “against sexual harassment of women at [the] workplace and for the prevention and redressal of complaints of sexual harassment”. The Act, which came into effect in December of the same year, marked an important milestone in Indian history. It gave legal recognition to a form of violence that remains for many women routinely experienced but often dismissed. In its definition of what constitutes sexual harassment at the workplace, the act includes a list of unwelcome acts or behaviour that could be either direct or implied. It also has a wide definition of the workplace and covers workers in the unorganised sector, domestic workers, and any place visited by an employee in relation to their work. 

December 2023 marked a decade since the Act came into force, a significant milestone indeed. However, even after ten years, we know little about its effectiveness. A wide range of studies, news and field reports (examples here, here, here and here) have highlighted that compliance with the requirements of the POSH Act remains poor. In 2023, while hearing a case, even the Supreme Court of India lamented that there were “serious lapses in the enforcement of the Act” even after a decade of the law being implemented. 

But we know little about how the act has fared at the macro-level, or as the head of an organisation that specialises in training organisations on POSH compliance recently told me, “What does the national picture of POSH compliance truly look like?” For instance, how many complaints are reported each year? Are employers following its provisions in letter and spirit? Has the act helped in the prevention of sexual harassment? How easy is it for survivors to report cases under the Act? 

This lack of national-level data is particularly striking because the Act includes requirements for the disclosure of data on complaints received by employers in their annual reports. Chapter VIII of the act requires employers “to include in its report the number of cases filed, if any, and their disposal under this Act in the annual report of [their] organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.” Additionally, in 2018 the Securities and Exchange Board of India (SEBI) mandated all listed companies to disclose this data in their annual reports each year.

This mandatory disclosure of data is a valuable inclusion in the law. However, despite this inclusion, we do not have any publicly available repository collating these reported numbers. For listed companies, this data remains scattered across individual company reports, often in difficult-to-use formats, making it challenging to identify industry-wide trends, gaps, and track progress. For non-listed companies, the data reported by organisations to district officers, is again, not available in the form of a national dataset. Thus, beyond disclosures, the data is not being used to track the implementation or strengthen the provisions of the law. 

Earlier this year, we at the Centre for Economic Data and Analysis (CEDA), Ashoka University, compiled some of this data to gain some insights into how some of India’s top companies have fared. We compiled data on reported cases from the annual reports of 300 listed companies on the National Stock Exchange (NSE). As of March 31, 2023, 2,137 companies were listed on the exchange but, 124 were listed as “not available for trading”, leaving the full pool of companies at 2,013. While it would have been ideal to compile the numbers for all companies, manual data collection for 2,000+ companies for ten years would have been an extremely resource-intensive process. However, to ensure a diverse and representative sample of companies, our set of 300 companies included 100 companies with the highest market capitalization (from rank 1 to 100), another 100 in the middle (from rank 957 to 1,056) and the rest of the 100 ranked from 1,914 to 2,013. This was done to go beyond focusing only on a handful of well-known and large corporations. For the purpose of this analysis, the three sets are referred to as Large, Mid-range, and Small respectively. We collected data for 11 years (from FY 2012-13, a year before the act was implemented to FY 2022-23, the latest year for which data for all companies was available at the time). 

Even though it is a limited dataset, it offers some noteworthy insights. First, the number of cases reported by companies in their annual reports has increased over the years. In FY 2013-14, the first year when the POSH Act came into force, the companies in focus together reported 161 cases. Within a year, this number jumped to 465. The numbers have grown in each subsequent year till FY 2020-21, the first year of the Covid-19 pandemic. A total of 586 cases were reported across the 300 companies, as compared to 961 cases a year ago. This number increased to 767 in FY 2021-22, and then jumped by 51.2 percent in the subsequent year to 1,160.

Second, the data reveals that while the number of complaints has been rising, the resolution of cases has not grown at the same pace. Across years, the number of resolved cases, as reported by companies, has been lower than the number of reported complaints. As a consequence, the number of pending complaints as reported by companies has increased from 29 in FY 2013-14 to 202 by FY 2022-23.

The next finding even more striking – the cases are being reported only by a handful of companies. For instance, the 1,160 cases reported in FY 2022-23 were across just 81 companies of the 300 companies in our dataset, implying that 219 companies did not report any case under the POSH Act that year. In fact, 50 percent of the cases were reported across just eight companies. This trend was not specific to 2022-23. Right from FY 2013-14, only a handful of companies have been reporting complaints under the POSH Act. The majority of the companies have been reporting zero complaints, often across years. Further, some companies have not reported any numbers in their annual reports despite the fact that this is a mandatory requirement and can result in financial penalties for companies. Additionally, 98-100 percent of the reported cases came from the “Large” companies in our dataset, while 1-2 percent came from the “Mid-range” companies. The “Small” companies reported no POSH cases in any year.

How does one make sense of these numbers? At the outset, the increasing numbers over the decade can appear alarming, indicating that incidents of sexual harassment at the workplace are growing. While this can be true, the numbers on cases of sexual violence must always be read with caution. Reported cases often reflect only a certain fraction of all cases, since all survivors may not always feel comfortable or safe to report such cases for various reasons –privacy concerns, concerns of social sanction and stigma, and the fear of backlash and retribution, especially if the perpetrator is someone in a position of power.

In principle, a higher number of reported cases could indicate either a higher incidence of harassment or improved awareness and better complaints mechanisms in organizations, or both. However, in this case, it is reasonable to believe that installing transparent mechanisms for safe reporting and resolution would enable better reporting. It is plausible that companies reporting zero cases for multiple years have not made sufficient efforts to comply with the requirements of the POSH Act. In the same vein, companies that have consistently reported complaints across the years may not necessarily be the only ones where such incidents are happening, but could be the ones with more awareness and better reporting mechanisms. More comprehensive data and more research can help us understand this more accurately. 

As the POSH Act enters its second decade, it would be worthwhile to build on some of these lessons as we chart the path forward. 

First, good data is absolutely essential for evaluating the efficacy of any policy. As Tim Harford remarked recently while commenting on the state of statistics in the United Kingdom, official statistics “are the eyes and ears of the state. If we neglect them, waste and mismanagement are all but inevitable”. The importance of credible and robust statistics to inform public policies that can especially address gender-based violence effectively has also been widely recognised by several global institutions. Recommendation 206 of the ILO, which seeks to address violence and harassment at the workplace, calls upon countries to “make efforts to collect and publish statistics on violence and harassment in the world of work disaggregated by sex, form of violence and harassment, and sector of economic activity.”

We must free up the data currently locked in difficult-to-use formats to facilitate more research into identifying broad trends, and gaps and to track progress. The mandatory disclosures by organisations as provided by the POSH Act are an important inclusion. SEBI also enforces penalties on listed companies for non-disclosure of this data. It is now time to think of ways in which this important feature of the act can be leveraged to yield meaningful and usable insights. There is a wealth of data scattered not only across annual reports of India Inc., but also in reports of organisations that are not listed on stock exchanges, and therefore, where such public disclosures are not mandatory. 

Increased scrutiny of the law’s functioning through frequent and widespread use of compliance data will also encourage organizations, especially smaller ones that currently escape the public gaze, to be more vigilant about their practices and the numbers they report. Second, this broad data will need to be supplemented with some deep-dive studies, and employee and employer surveys to understand the experience of employees, survivors as well as organisations in how the act has fared, and how it can be strengthened further. 

Third, it is essential that we do not erroneously villainize companies that show high numbers of cases, and create the right incentives for those who are taking the act seriously. Instead, instances, where companies consistently report zero cases despite having a high number of employees, should be investigated to understand whether these outcomes are the result of high quality of interventions, or poor compliance. Similarly, instances of companies with high numbers of pending cases need to be investigated further to understand where the gaps are. Is it because of apathy in the case of employers, or are they struggling to address cases effectively despite having the right intent? 

Insights derived from these efforts should then be used to evaluate the Act and its design more comprehensively. Sexual harassment at the workplace is a serious concern – it is a violation of one’s rights and dignity, takes a severe toll on the well-being of women, and significantly diminishes their ability to work productively. If not addressed adequately and promptly, sexual harassment can often take the form of routine experiences, impacting women on an everyday basis. Implementing the POSH Act in letter and spirit is critical to enabling women’s participation in organisations, and in cultivating safe and healthy workplaces and work cultures. Collating the reported data on POSH compliance and making it available to researchers, community organisations and policymakers in usable formats can help identify important trends, including gaps, outliers, as well as progress over the years. This evidence should then be used for designing corporate and public policies that can address sexual harassment more holistically. 

This article is based on our analysis ‘A decade of the POSH Act: What the data tells us about how India Inc. has fared’. The original analysis can be accessed here.