Psychological Safety at the Workplace: Examining Whether Mental Distress Constitutes Harassment under the POSH Act
-Manjishtha Callen
ABSTRACT
POSH Act,2013 also known as the “Sexual Harassment of women at workplace (Prevention, prohibition and redressal) Act” was introduced to secure a sexual harassment free working environment, but still its provision are mere texts anchored to the act which are applicable only on acts of physical or sexual in nature. This article steps forward to ask whether the act is equipped well enough to acknowledge psychological safety at workplace (freedom from anxiety, mental distress, emotional trauma, etc) which arises from workplace conduct as a separate cognizable harm? rather than merely some downstream consequence of primarily established physical or sexual harassment. Considering the definitions under section 2(n) and 3(2) of the act, the compensation mechanism under section 15, cases including Vishakha v. State of Rajasthan, Apparel Export Promotion Council v. A.K. Chopra, Malabika Bhattacharjee v. Internal Complaints Committee, and Areliano Fernandes v. State of Goa, the article says that continuously, the jurisprudence has expanded the core idea of ‘sexual harassment’ while the framework of psychological harm is still underdeveloped. The act acknowledges mental trauma but at remedial stage not at the threshold stage, or as an act of harassment itself, which brings us to a gap termed as the “recognition-remedy mismatch” according to this article. The article is concluded with recommendations for clarification of statute and procedural reform based on trauma informed.
INTRODUCTION
Harm at workplace isn’t always is as boldly visible as a raised hand or an explicit demand. It often slips in quietly, like the anxiety comes right before a one-on-one meeting, feeling drained from constant anticipation of whatever your coworker is going to say next, or the sudden decrease of confidence from consistent and unwanted attention. Workplace harassment laws in India are majorly built around acts which are identifiable like, physical touch, exhibition of pornography, sexually colored remarks, etc. such acts are enlisted under the provisions of POSH Act and these remain the primary lens for the ICs (Internal committees) to assess complaints. Lived experiences of harassment is rarely confined to a single incident, these experiences are usually cumulative and the major injury is often psychological instead of physical. That’s not a unique overview of India but a comparative survey of harassment at workplace in the form of psychological abuse which often goes unrecognized covered the predominant acts like physical abuse or abuse through sexual abuse.
This article determines whether framework of the POSH act is able to acknowledge sustained mental distress as a form of harassment and not just a consequence of the main act (physical or sexual abuse).
STATUTORY FRAMEWORK
Section 2(n) of the act defines the term “sexual harassment” as illustrative not exhaustive list, ‘demand or request for sexual favors, physical contact and advances, sexually colored remarks, showing pornography or any other type of unwelcomed physical, verbal or non-verbal conduct which is of sexual nature’. The category of unwelcomed sexual conduct is pretty broad, actually. It can include stuff like constant innuendo, subtle threats, or being shut out because you turned someone down. The problem isn’t that the law doesn’t cover it, but that it’s not clear how you prove or measure the psychological impact.
Section 3(2) offers a clearer path. It says that if certain things like threats affect your job, create a hostile environment, or mess with your work or your health and safety, it counts as sexual harassment when tied to Section 2(n). The phrase “health or safety” is a big deal here. The WHO says health includes mental and social well-being, not just absence of disease. So, Section 3(2) actually has what we need to include psychological harm under the Act. What’s missing is someone in the legislature or courts saying that out loud. More importantly, they need a real way for the Internal Committee to look at psychological harm the same way they check physical evidence or documents. It bites a little that the framework isn’t there.
Elements of a Hostile work environment finding under section 3(2)
JUDICIAL JOURNEY
The Vishaka v. State of Rajasthan case is still the foundational text. Nobody had written laws about it, so the Court found the right to a safe workplace in the Constitution, under Articles 14, 19, and 21, the last one guaranteeing a life with dignity. The Vishaka Guidelines said employers had to make sure the workplace was “free of hostility.” This goes beyond just bad actions to the general vibe of the place, and it definitely affects how an employee feels.
Judicial Widening of the Dignitary Core of Sexual Harassment
Then, a couple years later, in Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court said sexual harassment happened even though the person didn’t actually get physically touched. The Court figured that trying something and acting really humiliatingly could be considered harassment too, because hurting someone’s dignity doesn’t need a completed physical act. Chopra is important for this article because it moves the focus from the physical act itself to how it messes with the person’s dignity and feeling of safety. That’s a psychological experience, by its nature.
MALABIKA BHATTACHARJEE V. INTERNAL COMPLAINTS COMMITTEE, VIVEKANANDA COLLEGE (2020)
In Malabika Bhattacharjee, the Calcutta High Court had to figure out if you could bring a case under the POSH Act when both the person complaining and the person being complained about were the same gender. The petitioner argued that this law, which was based on Vishaka and meant to protect women, assumed a male accuser and a female victim. So, they said, a same-gender complaint shouldn’t count.
Justice Sabyasachi Bhattacharyya didn’t agree. He said the definition of “sexual harassment” in Section 2(n) isn’t fixed. It needs to be understood with how we currently think about dignity, gender, and sexuality. The Court decided that someone of any gender can feel threatened and sexually harassed when their dignity, as part of that gender, is hurt, no matter the gender of the person doing it.
What’s really useful about Malabika Bhattacharjee, for us right now, isn’t so much its conclusion on gender-neutrality. It’s more about how the Court got there. The main thing for them was dignity and how someone felt threatened. It wasn’t about the physical details of what happened. Really, it’s a psychological standard. What counts is how the behaviour affected the complainant’s sense of safety and self-respect, not just what it looked like on the outside. So, this ruling helps show that Section 2(n) can and should cover harm that’s mostly felt as psychological pain, as long as that pain comes from behaviour that’s sexual or has to do with gender.
AURELIANO FERNANDES V. STATE OF GOA
Aureliano Fernandes v. State of Goa feels like the human price you pay when they’re enforcing the rules. It was about a university lecturer accused of harassing female students, part of a POSH-related investigation. The Internal Committee just rushed through it, according to the Supreme Court, passing an ex-parte order without letting him actually defend himself. They said he kept missing meetings for medical reasons or something. The Supreme Court sent it back for a new investigation, saying they messed up the basic rules of fairness.
People usually focus on the procedural stuff and the Court’s follow-up orders later in 2024, telling all the states to set up these committees properly. But this case also shows how the process itself can really mess with people’s heads, and that’s something you don’t see talked about much. If you’re the one complaining, and the inquiry drags on, or it’s handled badly, or keeps getting postponed, you’re stuck in a really awful, re-traumatizing situation for longer. And if you’re the one accused, and you’re not even really heard, you’ve got the stress of facing big trouble without a real chance to fight back. The law has a three-month limit for filing a complaint, which makes sense for getting things started quickly. Aureliano Fernandes just proves that sticking to that speed and fairness needs to happen through the whole thing, or the process itself becomes another layer of hurt on top of whatever happened in the first place.
EVIDENTIARY AND DOCTRINAL CHALLENGES
The POSH Act, when you really look at it, shows this mismatch between recognizing something and what you do about it. Section 15 says the Internal Committee should think about “mental trauma, pain, suffering and emotional distress” when figuring out compensation for a woman who’s been wronged. So, psychological harm is definitely acknowledged, but only after harassment is already proven, usually through more obvious evidence. The Act doesn’t really say much about how psychological harm itself can be used as proof of harassment, or on its own, to say the workplace is hostile like Section 3(2) talks about.
This creates real problems. Courts often decide harassment based on whether the behaviour would cause a “reasonable person” serious mental pain, focusing more on how it affected someone than what the harasser meant. But Internal Committees, which are usually just employees without legal training and don’t have the same legal power as a real court, aren’t really set up to judge psychological harm as well as they can evidence like documents or witness statements about physical actions. Victims trying to prove they’ve suffered ongoing psychological injury hit another snag: getting proof from doctors or psychiatrists means sharing very personal stuff. Lots of people don’t want to do that because of shame, cost, or just feeling weird about making something so private official. Someone else pointed out that the idea of a hostile work environment is still stuck on cases involving clear or repeated physical actions, so subtler psychological harms don’t get enough attention. This failure to enforce things evenly is made worse by general issues with how the Act is put into practice, which people have also brought up when looking at the Act’s first ten years.
TODAY’S EXPRESS RECOGNITION
The Recognition-Remedy mismatch under the POSH Act
This whole recognition-remedy mismatch thing, yeah, it’s best sorted by making clear what’s already there, not ditching the Act’s whole setup. Three small changes could work.
First, the Ministry of Women and Child Development need to say, or maybe the Supreme Court when it comes up again, that “health” in Section 3(2) means the WHO’s idea of health. That way, it’s clear sustained mental distress from a bad workplace counts under the Act, even if there isn’t always a direct physical or verbal attack.
Second, Internal Committees should get proper training on how to do inquiries that understand trauma. This isn’t to make it easier to prove things for either side, but so that if someone talks about how they’re feeling mentally, it’s handled with the same care as the whole inquiry demands, just like in the Aureliano Fernandes case. We’ve got to acknowledge psychological harm without messing up the basic fair process that case was meant to protect. A trauma-informed process respects everyone’s dignity and mental state, complainant and respondent.
Third, that annual report employers file, and the audits from Aureliano Fernandes, could show more than just how many complaints there were and what happened to them. They could track things like how psychologically safe the workplace feels – data from exit interviews, anonymous surveys, and how many women leave. This would help flag systemic harm before someone even has to file a formal complaint.
CONCLUSION
The POSH Act came about because people realized dignity at work is a constitutional right, not up to bosses. For thirty years now, Indian courts have been expanding what “sexual harassment” means. It’s moved past just looking at the act itself as implied by Chopra, to a gender-neutral, feelings-based standard in Malabika Bhattacharjee, and then demanding fair procedures for inquiries in Aureliano Fernandes. What we still need is to actually bring this expanded idea of dignity into how we handle evidence. Right now, psychological harm gets taken seriously only when it’s about paying compensation, not when we’re defining the harassment itself. Until that happens, the Act’s promise of a workplace without hostility will be only partly fulfilled. Lots of employees get hurt mentally, and the distress is real, even if a committee can’t see any physical signs.
