The Madras High Court has set an important precedent by expanding the understanding of what “continuing sexual harassment” means, and, in the process, may have created an avenue for relief to survivors of sexual harassment at workplaces across the country. In a judgement delivered on June 11 this year, the court, in R Mohanakrishnan v. The Deputy Inspector General of Police & Ors., relaxed some of the rigid timeframes imposed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH Act”] by interpreting the law in line with its primary objective. The court noted that serious offences of sexual violence should be considered continuing offences until the survivor finds a resolution, and that the time limit of three months from the date of the incident as stipulated in the law ought to be liberally understood.
The judgement was pronounced in the context of a case brought by an alleged perpetrator of sexual violence. An enquiry conducted by the Internal Complaints Committee (ICC), Nilgiris District, had found that the perpetrator had committed acts that amounted to sexual harassment in the workplace within the meaning of the POSH Act.
His challenge to these findings were principally made on the basis that the complaint itself was time-barred: that is, the alleged incident, he said, had occurred in 2018, but the complaint was made only in 2022. He argued that the POSH Act allowed complaints to be filed within three months from an incident (a term extendable by a further three months at the discretion of the ICC) and therefore the complaint made in this case ought not to have been entertained.
This argument was rejected by the court. As the State had argued, the perpetrator had committed not one but a series of violations, and therefore, the act of sexual harassment ought to be seen as continuing in nature. “In cases of serious allegations such as rape or continuous molestation or harassment, the same would be a continuing misconduct,” the court wrote, “and every day until the situation is redressed or brought to the notice of the appropriate authority would give rise to a fresh cause of action. The purpose of the provision of Limitation in Section 9 has to be understood in this context.”
The POSH Act was enacted with a view to providing protection to women against sexual harassment at workplaces and for prevention and redressal of complaints of sexual harassment at workplaces. It was enacted on April 22, 2013, and it came into force on December 9, 2013 — nearly 16 years after the observations of the Supreme Court of India in Vishaka & Ors. v. State of Rajasthan & Ors. The judgement in Vishaka was a product of public interest litigation brought by social activists and NGOs. The court had prescribed norms, which are popularly known as the Vishaka guidelines, which were to be compulsorily followed until Parliament made a legislation.
The POSH Act adopts the guidelines framed in Vishaka and makes it the duty of every employer to prevent and deter the commission of acts of sexual harassment. It also sets in place a broad framework for the resolution and prosecution of acts of sexual harassment. Under the law, as interpreted by courts, any organisation with 10 or more employees has to set up an Internal Committee (IC) — formerly known as the Internal Complaints Committee (ICC) — to look into complaints of sexual harassment at the workplace and to suggest to the management disciplinary action against offenders. Every district must also have a Local Committee (LC), which is more accessible to persons working in the unorganised sector and in smaller organisations.
Despite its intentions, the enforcement of the POSH Act has been largely unsatisfactory as noted by the Supreme Court of India in its 2023 ruling in Auerliano Fernandes v. State of Goa and Others. One of the chief shortcomings of the POSH Act is the limitation period prescribed under the law. The strict procedure imposed by the law has often proven a stumbling block for survivors to initiate proceedings against the accused and courts too have invariably been hesitant to interfere.
A reading of Section 9 of the Act makes this shortcoming clear. It says:
“9. Complaint of sexual harassment – (1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident……… Provided further that the Internal Committee, or as the case may be, the Local Committee may, for the reasons recorded in writing, extend the time limit not exceeding three months, if it satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period..….”
As we can see, the terms used in Section 9 impose a rigid timeline. Until now, courts have been reluctant to extend the timelines prescribed in the law. Some judgements have however pointed out that this limitation may not apply when the act of sexual harassment is of continuing nature. For instance, the Delhi High Court observed in 2010 before the enactment of the POSH Act, that “In a complaint of sexual harassment and sex based harassment or discrimination, which persists over a length of time, the defence of limitation or laches may not find relevance.”
However, following the enactment of the POSH Act, courts have chosen to interpret Section 9 in largely strict fashion. Two examples highlight this issue. The Madurai Bench of the Madras High Court in Manonmaniam Sundaranar University observed that a complaint under the POSH Act, which is beyond the three month period, would be wholly barred by limitation and that an ICC would be barred from so much as entertaining such a petition. Similarly, the Kerala High Court in K Reeja, held that the Local Complaints Committee therein “had no authority or power to act upon” a complaint beyond the time period stipulated under Section 9 of POSH Act.
These judgements indicate what many have long seen as a constraint under the law, that is the fact that the POSH Act does not deal with the manner in which complaints can be given for past incidents. In fact, when the #MeToo movement garnered attention in India in October 2018, Justice Sujata Manohar (Retd.), who was a part of the Bench that delivered the Vishaka ruling, told The Indian Express that the judgement’s guidelines “were recommended for somebody who was harassed in the present”. She further called for revisiting the statute especially with respect to incidents that had taken place in the past.
This has meant that until such time the POSH Act is amended to realise its true purpose, courts will have to necessarily adopt a more expansive interpretation. This is precisely what the Madras High Court has done in its recent judgement in R Mohanakrishnan.
The court was concerned with the question of whether an enquiry report submitted by the ICC ought to be set aside on the ground that the complaint is beyond the limitation period prescribed under Section 9 of the POSH Act. The court placed reliance on the judgement of the Supreme Court of India in Dilip Paul to the extent that courts ought not to be swayed by discrepancies or hyper technicalities in cases of sexual harassment while considering procedural violations.
The court also dealt with the meaning of continuous harassment. It held that when an offence causes great mental trauma and stress to a victim, pushing the survivor to stay silent on account of “fear of secondary or tertiary victimization”, then it would amount to the survivor undergoing continuous sexual harassment. The court also went on to hold that the accused must not be allowed to rely on hyper-technicalities and that the complaint was not barred by limitation or violative of Section 9 of the POSH Act.
The ruling is significant for two reasons. One, the court has expanded the meaning of “continuous sexual harassment”. Two, the court has held that the limitation period prescribed under Section 9 of the POSH Act must be seen in the context of continuous harassment.
Thus far, continuous harassment has been interpreted in a manner that includes only multiple incidents of sexual harassment. However, the interpretation adopted by the Madras High Court makes it clear that harassment can be considered continuing until such time the misconduct in question is effectively resolved.
Although questions on procedural aspects such as limitation will differ from case to case, the Madras High Court’s ruling offers a glimmer of hope for survivors of sexual harassment, particularly in cases where the offence has had a continuing effect on the survivor. That said, the time may have come for a more comprehensive review of the POSH Act, to ensure that perpetrators are not allowed to use procedural loopholes to escape the law’s rigours.
Surasika Parthasarathy is an advocate practising in the Madras High Court.
Views expressed are the author's own.