Sexual Harassment of Women at Workplace Act: POSH Retribution

Considering their impact on TRP ratings, if sexual harassment didn’t exist, advertisers would have to invent something like it. Hardly a week goes by without one celebrity or another “coming out” as a victim of sexual harassment. Last month, it was singer-actress Meesha Shafi. It’s a buzz so compelling that even actor Ranveer Singh got on the streetcar! A lot of it may well be true, of course, not least because these allegations often pertain to intensely competitive industries with limited opportunities. Nevertheless, no one sees any irony in the idea that the #MeToo movement—originally intended to empower women—has ended up incentivising them to retrospectively redefine themselves as victims. On the subject of the media circus that then ensues, the less said the better.

The problem is not that the media makes a gladiatorial circus out of sexual harassment; it’s that the law itself incentivises this redefinition. In 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, popularly called POSH, was enacted. The legislation’s intention is clear enough. All workplaces must have an Internal Complaints Committee (ICC) to deal with such allegations. They are designed as some sort of combo all-purpose judge, jury and jailor and have been granted powers normally reserved for civil courts to discover evidence and enforce the attendance of witnesses. In culmination, ICCs can order disciplinary action and compensation. For good measure, ICCs have been granted certain powers to enforce interim measures, too.


We need to have this law in context. The Indian Penal Code already specifies a range of offences against women that sends a man to jail for three years for a first offence and seven years for a repeat. These provisions include 354 (outraging the modesty of a woman), 354A (sexual harassment), 354B (assault with intent to disrobe), 354C (voyeurism), 354D (stalking) and 509 (insulting the modesty of a woman).

Civil courts are already empowered to grant compensation in tort law. What this law does is create a new kind of civil court within the workplace and confers on untrained laymen the powers of a court. This is alarming. It is hard enough to get justice from a regular court with an experienced judge: imagine trying to get it from a kangaroo court of corporate czarinas!

But what is objectionable about POSH is the “attitude” that it promotes. It’s a problem of cultures as much as of interpretation of interpersonal human behaviour. All POSH expects of us is that we should set up a supplementary mechanism to achieve a quicker crucifixion. If a grievance ends up as a corporate and media circus, well, we complied with the letter of the law, so what more do you want? Surely, this cannot be a good answer.

To truly address this, it is critical to come to terms with the true nature of the problem. This has several components. At the very outset, we have the problem of interpretation of behaviour. All employees shine up to their bosses or try and get along famously with their colleagues to gain professional advantage. It is easy for the other party to interpret this as an invitation. When it comes to the mating game, one way or another, almost everyone is “trying their luck”. Women have it harder mainly for statistical reasons. Only about 15 percent men are gay and it still being a crime, most of them are truly underground. In the ordinary course, I would not interpret any guy’s behaviour as an invitation to a sleepover. With 85 percent potentially straight men in play at work, women run about six times as much “risk” as men!

That does not mean that the mating call of the male shark is always unwelcome at work. At a Bombay UBS Transformance seminar in March 2018, the audience was polled. How many women had ever propositioned anyone? Eight out of 40 said they had. Perhaps there were more. How many men had never propositioned anyone? No one raised their hands. How many men and women never wanted to be propositioned? No hands went up. It’s obvious. Everyone wants to be in the mating game. It’s a game of whom. The real problem is that the mating game has no agreed rules. It’s easy to get it wrong.


Here is the central rub. There was a time when people had this exotic thing called Work-Life Balance. The mobile phone threatened it with instant messaging. Then the internet eroded it in the 1990s when BlackBerry ushered in the era of emails on handheld phones. WhatsApp has now performed its last rites. Today, everyone works 24/7 and there is little social life outside the workspace. If you want down time, you ask an office colleague to step out for a drink. Men and women are being thrown together as never before, yet society is taking an increasingly antagonistic view of the mating game. Thus, while interaction magnifies, the rules by which it may be conducted progressively narrow. To add to the confusion, the matchmaking aunt is extinct, too. Matrimonial matches win catches at work! Wouldn’t you then expect that familiarity breeds attempt?

And what form should we expect such attempts to take? The cultural scripting that defined this business of wooing decades back was clear: men should woo aggressively and women should succumb reluctantly. A million women around the country still seek out movies featuring the single biggest personification of this cultural construct: Shammi Kapoor (who else!). They thoroughly enjoy what appears to be a very abrasive, and physical, form of conquest. Anybody who came of age in the 1960s and still has a libido knocking on his door would think this is the way to be. Has much changed in the way heroes woo their girls in the movies now?

The thing to understand is that, cultural constructs apart, a range of genetic compulsions drive behaviour. Very briefly, every species seeks immortality by passing down its genes. Extinction stalks those who fail to mate. This is why one in seven people worldwide have a bit of Genghis Khan in them. Not for nothing did Abraham Maslow put sexual union as the most basic of his needs. Sigmund Freud did better, putting it at the heart of the human mind!

To try to understand something does not necessarily mean to become an apologist for it. The truth is that a lot of work spaces exhibit a wide range of mating displays ranging from entirely physical enhancements like lipstick and beard trims through supplementary adornment such as designer wear and accessories to wealth displays like cars and mobiles. Norms of social behaviour that expand contact, enhance mating displays but repress engagement cannot but be a cauldron of unspent raging passions that occasionally boil over. The point here is that sexual harassment, for want of a better word, has to be seen in its overall context.

In the irrationality that is POSH, there remains no space for recognition of the idea that biologically, genetically, indeed, as central to the evolutionary impulse across species, procreation and mating lies at the heart of all animal behaviour. Suppressing it in specific contexts is a process we call “socialisation”. As people may not truly understand the rules of engagement in office, we need merely recognise that the office environment requires another kind of socialisation training.

Bluntly put, I do not believe corporate best practice is achieved by setting up a committee empowered to burn witches at the stake. We need empathy and behavioural training, not judgement. Instead, POSH has restructured our world into one where any proposal you make to a lady results in either a great and memorable relationship or a great tryst with criminal law. In the face of a law that fights instinct using the crudest of tools, retribution cannot kill the brinkmanship any more than AIDS killed promiscuity.

Originally Published on May 27, 2018 in India Legal


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