Author: Avni Tripathi, Student of National Law University and Judicial Academy, Assam
ABSTRACT
This article offers a critical look at the gaps within India’s legal system when it comes to tackling sexual harassment in informal, gig, and digital workspaces. Although landmark cases like Vishaka v. State of Rajasthan and the 2013 POSH Act have played key roles in advancing women’s protections at work, both are primarily designed around traditional, formal employment settings. As a result, gig workers, digital freelancers, domestic helpers, and street vendors often find themselves left outside the reach of these protections. By referencing constitutional guarantees under Articles 14 and 21, the article simplifies ongoing widespread issues, such as the inadequacy of Local Committees and the lack of effective redress mechanisms available on many digital platforms. Eventually, it advocates for legal reforms to broaden the definition of ‘workplace’ and develop more comprehensive enforcement strategies that better reflect the changing environment of work in India.
While the landmark judgment in Vishaka v. Rajasthan remains an important point in advancing workplace rights for women, the Indian legal framework has not kept pace with the changing nature of employment relationships. Given that more than 90% of women in India work in the informal sector, the protections offered by the Vishaka Guidelines, later embedded in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the POSH Act), are increasingly inadequate for the modern Indian woman. Whether she is a gig worker, domestic helper, content creator, or someone working remotely, the existing laws do not fully address her needs or protect her rights effectively.
The Vishaka judgment arose by the tragic gang rape of Bhanwari Devi, a community worker who courageously tried to prevent child marriage, only to face retaliation from men belonging to the dominant caste. The Supreme Court, interpreting Articles 14, 15, 19, and 21 of the Indian Constitution, declared that sexual harassment at work fundamentally violates a woman’s rights. It issued clear guidelines to address this issue until Parliament could pass formal legislation. This landmark decision signalled a major shift, recognizing that ensuring safety at the workplace is a matter of constitutional importance, not just employment regulation.
However, both Vishaka and the POSH Act are based on the idea of a traditional workplace, with clear boundaries and established employer-employee relationships. Section 2(o) of the POSH Act describes a “workplace” so that, even with some expansion, still leaves out decentralized, digital, and home-based work environments. Section 4 also mandates the formation of an Internal Complaints Committee (ICC) by the “employer,” a term that assumes a hierarchical employment structure, something that does not really exist in gig and informal economies.
This gap becomes especially clear when looking at domestic workers. For example, a worker cleaning five homes often has no formal employer, no HR department to turn to, and may not even have a written contract. While the law establishes Local Complaints Committees (LCCs) under Section 6 to address such issues, their actual implementation is inconsistent, often non-existent, and frequently underfunded. Human Rights Watch’s research found that in several Indian states, many LCCs either had not been set up or were practically inaccessible to women in rural and migrant communities. In the case of Medha Kotwal Lele v. Union of India, the Supreme Court clarified that all workplaces, whether officially registered or not and must follow Vishaka Guidelines. Unfortunately, this clarification has not led to a strong, widespread approach that effectively tackles the realities of informal employment.
The exclusion of platform-based work from existing protections is an important concern. Consider a woman working for a food delivery app who encounters inappropriate comments from a customer or faces harassment from her supervisor through app messaging, she cannot file a complaint with the ICC because she is not a traditional employee of the company. Similarly, content creators and freelancers operating from home, who interact with clients online, experience workplace-like situations without a clear legal pathway under current definitions of ‘workplace’. While Section 2(o)(v) does attempt to broaden protection to include “any place visited by the employee arising out of or during the course of employment,” courts have yet to clarify whether virtual spaces like WhatsApp groups or Zoom calls qualify under this provision.
The case of Smt. Hira Devi v. State of Bihar, where a female Anganwadi worker accused her supervisor of ongoing sexual harassment. The Patna High Court pointed out that, under the Integrated Child Development Scheme (ICDS), these workers are technically considered ‘volunteers’ rather than formal employees. This classification meant they were not covered by the protection offered under the relevant law. This decision emphasizes a concerning issue: how interpreting legal definitions too narrowly can actually deepen the vulnerabilities faced by women in the workplace, especially those most at risk of harassment.
The POSH Act does not really provide effective solutions for digital harassment. Issues like online stalking, persistent sexually explicit messages, or harassment during virtual meetings are all common forms of workplace abuse today. Unfortunately, the law is not well-equipped to handle such behaviours unless they are taken up under criminal laws like Section 354A or Section 509 of the Indian Penal Code, 1860. These sections involve police intervention and require the filing of formal FIRs options that many women in unstable or insecure jobs are hesitant or unable to pursue due to fears of retaliation, losing their jobs, or social stigma.
This lacuna is especially problematic for women who are self-employed or working independently. A female customizes operating from her home who faces harassment from a supplier or middleman has no employer to turn to for support or reporting. The POSH Act’s current framework doesn’t account for economic relationships outside the typical employment setup. Without updates in legislation, these kinds of workers remain legally overlooked and unprotected.
India’s hesitance to ratify International Labour Organization Convention No. 190, which directly addresses violence and harassment in the workplace beyond just formal settings suggests a lack of political willingness to adapt to changing labour realities. While the Supreme Court has previously referenced India’s commitments under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in the Vishaka case, this judicial stance has yet to be reflected in concrete legal reforms. As India’s economy shifts towards greater decentralization and digitalization, clinging to a rigid legal framework risk undermining both constitutional protections and international commitments.
To effectively address this, it is important to revise the definition of “workplace” in Section 2(o) of the POSH Act to encompass virtual environments, platform-mediated settings, and home-based workplaces. Besides, the term “employer” needs to be broadened to include entities that assist or benefit from the work, even if they are not directly employing the workers. This change is critical for holding app companies, online platforms, and intermediaries accountable, as they shape these relationships. We should consider establishing a model of “economic enabler liability,” similar to the idea of “platform responsibility,” to clarify legal responsibilities. In sectors like domestic work, the government must actively fund and implement decentralized, community-based grievance redressal systems to protect workers effectively.
Judicial interpretation needs to keep pace with societal changes. In the case of Deepika Singh v. Central Administrative Tribunal, the Supreme Court expanded the definition of ‘family’ to encompass more diverse arrangements beyond traditional ones. Similarly, it is important for the Court to adopt a purposive and comprehensive approach when applying the POSH Act, guaranteeing that protections are not limited by technicalities in contracts. The principle of substantive equality, as outlined in Article 14, requires laws to address underlying structural and intersectional inequalities, promoting fair treatment for all.
The quiet stance of the law when it comes to accommodating flexible work arrangements raises serious constitutional questions about access to justice. As the Indian judiciary clarified in A.S. Narayana Deekshitulu v. State of A.P., access to justice is not just about following procedures; it is a fundamental right guaranteed by Articles 14 and 21 of the Constitution. If the available remedies are out of reach or simply don’t exist for a large number of women workers, the entire justice framework becomes inherently exclusionary. Sexual harassment is not just an isolated problem that happens in workplaces; it reflects a deeper, widespread form of gender-based violence, intertwined with issues of caste, economic status, and social dependency. For those working in informal sectors or gig roles, the lack of solid protections often means harassment goes unchallenged, instead becoming something, people tolerate silently or resolve through informal and sometimes coercive settlements, which only deepen their vulnerability.
Besides, the failure of the state’s regulatory framework reveals a concerning blind spot when it comes to the actual economic environment. According to data from the 2022–23 Periodic Labour Force Survey, over half of women in urban India are either self-employed or working in informal jobs. The gig economy, supported by platforms like Uber, Zomato, and UrbanClap, depends heavily on female workers for customer-facing roles, yet it offers no social security or mechanisms for workplace protection. This creates a troubling paradox: women’s labour is important to the economy, but legally, their contributions are often invisible. Without legislative intervention, this divide risks cementing a two-tiered legal system: where protections under the POSH Act only extend to urban women employed in corporate settings, leaving others vulnerable to uncertainty and insecurity.
Reconsidering the approach from a jurisprudential perspective goes beyond advisable but essential. As the Supreme Court emphasized in People’s Union for Civil Liberties v. Union of India, constitutional rights should be understood considering changing social realities. In this light, protecting individuals from sexual harassment extends beyond employment law; it is a fundamental aspect of the right to live with dignity. Overlooking the protection of women workers in non-traditional employment setups breaches the principles of substantive equality outlined in Article 14 and the dignity clause of Article 21. The mark of a progressive society lies not in formal declarations of equality, but in its ability to adapt legal frameworks to reflect and respond to the actual experiences of its most vulnerable members.
To effectively bridge this protection gap, coordinated action from both the legislative and executive branches is essential. First, the Ministry of Women and Child Development should update and issue new model rules under the POSH Act, explicitly broadening the definition of “workplace” to include online platforms, digital environments, home offices, and public-facing gig work. Second, establishing a publicly accessible central registry for Local Complaints Committees is essential. This registry should provide real-time updates on their composition, operational status, and outcomes of complaint resolutions. Third, gig economy platforms and aggregators need to be required to embed anti-harassment policies within their terms of service. These policies should include clear reporting mechanisms and defined disciplinary procedures to ensure swift action against harassment incidents.
Finally, the pursuit of gender justice should not be limited to the traditional frameworks of employment hierarchies. As Justice D.Y. Chandrachud has emphasized, the Constitution should be interpreted so that “bridges the gap between law and life.” When viewed through this revolutionary perspective, the POSH Act calls for a reimagining not just in its wording, but also in its underlying spirit. Any form of sexual harassment, regardless of the economic or technological platform through which work occurs, must be acknowledged as a violation of constitutional dignity. Protecting women in today’s workplace is not just about regulation; it is a matter of upholding our constitutional commitments.
FREQUENTLY ASKED QUESTIONS (FAQs)
Does the POSH Act, 2013 apply to informal workers or gig workers?
While the POSH Act defines “workplace” broadly, in practice, its enforcement mechanisms are not adequately designed to cover informal and gig workers. Many such workers do not have a fixed employer or organization that can form an Internal Complaints Committee (ICC), leaving them reliant on under-functioning Local Complaints Committees (LCCs), which are either absent or inaccessible in many districts.
How does Vishaka v. State of Rajasthan continue to influence sexual harassment law today?
Vishaka laid down binding guidelines under Article 141 of the Constitution until Parliament enacted legislation, which it did in 2013. The case is foundational as it recognized sexual harassment as a violation of Articles 14, 15, and 21. However, the judgment’s framework was based on conventional office structures, making it less responsive to newer forms of employment.
Are online forms of sexual harassment covered under the current law?
Technically, yes. The POSH Act includes “virtual workplace” within its scope. However, there is little clarity on jurisdiction and procedural remedies when harassment occurs over social media, video calls, or digital platforms with no centralized employer, leaving victims in limbo.
Can freelancers or online content creators file a complaint under POSH?
They can theoretically approach the Local Complaints Committee in their district. However, the absence of awareness, functioning LCCs, and procedural hurdles severely limit access. Moreover, there is no obligation on digital platforms (e.g., Instagram, YouTube) to provide redressal under POSH.
Is there any judicial push to reinterpret the POSH Act in light of the gig economy?
As of now, there has been limited judicial engagement with this issue. Courts have upheld the Act in formal settings, but the judiciary has not yet robustly interpreted its scope to include informal and digital sectors. However, public interest litigations and policy reports are pushing for a broader interpretation.
What is the role of state governments in ensuring protection in informal sectors?
Under the POSH Act, state governments are obligated to constitute Local Committees and raise awareness. However, compliance remains poor. Greater decentralization, regular audits, and resource allocation are essential for meaningful implementation at the local level.
