Remove The Predator, Not The Prey

I. The Structural Paradox

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('the POSH Act') was enacted to protect women at their workplaces. Section 12 was written to give that protection a practical interim mechanism during the pendency of inquiry. In twelve years of the Act's operation, institutions have found a way to use that mechanism against the very person it was designed to protect.

When a complaint is filed, Indian workplaces almost universally reach for the same solution: move the woman. Transfer her to another department. Send her on leave. Separate her from her work, her colleagues, her professional relationships, and her institutional standing, and call it protection. The respondent, meanwhile, stays exactly where he is. He attends the same meetings. He exercises the same authority. He inhabits the same workspace. He uses the pendency of the inquiry as institutional cover.

The woman who exercised a statutory right to complain leaves her professional environment. The man accused of violating that right remains in it. That is not protection. That is a second injury, administered by the law's own machinery.

This article makes three arguments. First, that the POSH Act's text does not require this outcome, it merely permits institutions to impose it. Second, that Section 12(1)(c) and the employer's independent service-law powers together provide a legal basis for removing the respondent rather than the complainant. Third, that the courts, in at least six significant decisions, have already said as much, and that the legislature and institutions have failed to listen.

II. What Section 12 Actually Says

Section 12(1) provides:

During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to— (a) transfer the aggrieved woman or the respondent to any other workplace; or (b) grant leave to the aggrieved woman up to a period of three months; or (c) grant such other relief to the aggrieved woman as may be prescribed.

Three clauses. Each deserves separate attention.

Section 12(1)(a) uses the word “or”. The Internal Committee ('IC') may recommend the transfer of the aggrieved woman or the respondent. The provision is facially neutral as to direction. No preference for one over the other is expressed. An IC that defaults to transferring the complainant without considering whether the respondent should be transferred instead is not exercising its statutory discretion, it is refusing to exercise it.

Section 12(1)(b) is structurally one-sided in the complainant's disfavour, i.e., only the aggrieved woman can be sent on leave under this clause. There is no corresponding power under Section 12(1)(b) to put the respondent on forced administrative leave. That power, where it exists, must come from elsewhere, i.e., the employer's independent disciplinary authority under service rules, or Section 12(1)(c).

Section 12(1)(c) is the provision that has been most systematically underused. Rule 8 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ('POSH Rules') gives it partial content inasmuch as the IC can recommend that the respondent be restrained from writing the complainant's performance appraisal or confidential report, and from supervising her academic activities in an educational institution. If Rule 8 can strip the respondent of supervisory authority over the complainant, the same logic supports stripping him of physical access to the complainant's workspace.

III. What Institutions Actually Do

The gap between what Section 12 permits and what institutions do with it is not accidental. It reflects the institutional incentive structure of the Indian workplace.

Senior employees, supervisors, and persons of organisational authority are disproportionately represented among respondents in sexual harassment complaints. Displacing them is expensive inasmuch as it disrupts reporting lines, creates administrative inconvenience, and risks antagonising people with institutional power. Displacing the complainant costs nothing by comparison, especially if she is junior, contractual, or otherwise expendable.

The result is a pattern. The complainant is transferred, frequently to a position with less access to decision-makers, less institutional visibility, and lower career prospects than the one she occupied before she filed. Or she is sent on leave; removing her from the institutional loop precisely when the inquiry process demands her active engagement. The transfer and the leave are presented as protective. They are experienced as punishment.

The message this sends to other women in the workplace is clear: - complain, and you will disappear. Not him. You. The chilling effect on reporting is not a side-effect of this practice. It is its direct and predictable consequence.

The criminology and victimology literature calls this secondary victimisation, i.e. the institutional reproduction of harm by the mechanisms designed to address it. Under the POSH Act, secondary victimisation is embedded in the interim relief stage, administered before any finding, and dressed as care.

IV. The Constitutional Argument

The POSH Act's preamble is not decorative. It grounds the statute in Articles 14, 15, and 21 of the Constitution vis a vis equality, freedom from discrimination, and the right to life with dignity. The right to pursue a profession in a safe environment is part of Article 21's guarantee. The Supreme Court established this in Vishaka v. State of Rajasthan [(1997) 6 SCC 241], holding that sexual harassment at the workplace violates the fundamental rights to gender equality, life, and liberty. The POSH Act is the statutory crystallisation of that constitutional directive.

An interim relief framework that systematically displaces the complainant rather than the respondent cannot be reconciled with that constitutional foundation. The right to pursue one's profession in an environment free from sexual harassment,^[1] does not evaporate the moment a woman exercises her statutory right to complain about its violation. A statutory mechanism enacted to enforce and protect constitutional guarantees cannot be interpreted or applied in a manner that dilutes, defeats, or diminishes those very rights.^[2]

The complainant's right to remain in her professional environment, the environment she built, the relationships she cultivated, the career she was pursuing before the harassment interrupted it, is a constitutional interest. The respondent's preference to remain in his current physical workspace is a service interest. Treating them as equally weighted in the interim relief calculus is a constitutional error.

V. What the Courts Have Said

Six decisions collectively establish a jurisprudence that the statute's administrators have not yet internalised. These cases are not obscure. They are simply ignored.

A. Ms. Pi & Ors. v. Jawaharlal Nehru University & Ors. [2018:DHC:3551]

Research scholars at JNU filed complaints of sexual harassment against a Professor of the School of Life Sciences. The complainants had also initiated criminal proceedings. The question before the Hon'ble High Court was whether the respondent-professor should be asked to remove himself from the campus until the matter was inquired into by the competent authority.

JNU argued that the ICC had not yet made a finding, and that displacing the respondent before inquiry would be premature. The complainants, however, asserted that the institution's obligation under Section 9(a) of the POSH Act to ensure a safe working environment operated independently of the ICC process, and that the employer's duty to adopt protective measures was neither contingent upon nor deferred pending the filing or culmination of a formal complaint before the ICC.

The Court accepted the said contention and issued specific protective directions. It directed that the respondent be provided, if necessary, a separate laboratory facility and further restrained him from having any contact whatsoever with the petitioners, complainants, or any prospective witnesses. The Court additionally observed that, in the event of any violation of these directions, the Vice-Chancellor shall consider appropriate measures including the respondent's removal from the campus. Simultaneously, the ICC was directed to examine the material already available on record and arrive at a prima facie determination as to whether the respondent's conduct warranted immediate suspension and/or removal from the campus pending inquiry.

The Court moved the respondent. Not the complainants. It treated his continued unchecked presence in the shared workspace as the problem to be solved. That is the analytical move this article advocates as the rule, not the exception.

B. Dinesh Chandra Mishra v. Dr. Trilochan Mohapatra & Anr. [2019:DHC:3106]

This case answers the procedural objection that ICs and employers most frequently deploy to justify inaction, namely, that in the absence of a written request from the complainant, they cannot transfer or displace the respondent.

The Delhi High Court rejected that argument. Administrative actions including the transfer of the respondent are not contingent on a written request from the complainant and may be taken independently by the employer to ensure a fair and safe working environment.

The implication is direct. An IC that says “we have no power to act against the respondent because the complainant has not requested interim relief” is misreading the statute. The obligation to maintain a safe workplace and ensure a fair, intimidation-free inquiry is a continuing and independent duty of the institution. It does not activate only on written request.

C. Saikuttan O.N. v. Kerala State Electricity Board Ltd. & Ors. [2020:KER:28445]

Here the respondent himself challenged his transfer, arguing it was punitive and arbitrary. The Kerala State Electricity Board had transferred him as an interim measure under Section 12(1)(a) following a complaint that his conduct was harassing toward multiple female staff members.

While upholding the transfer, the Hon'ble High Court of Kerala reiterated that courts should not interfere with transfer orders made in the public interest or for administrative reasons unless the order is illegal or malafide. The Court further held that Section 12 transfers are protective and administrative in character, not punitive, regardless of whether the transferee is the respondent.

This judgment is important inasmuch as it forecloses the respondent's principal litigation weapon. A properly made Section 12 recommendation to transfer the respondent to an equivalent position, without reduction in pay or grade, is a viable option and ought to be the norm. The law gives it judicial protection. Employers who claim they “can't” transfer the respondent are not constrained by the law, they are merely constrained by their own unwillingness.

D. Nagaraj G.K. v. Addl. Labour Commissioner, Bengaluru & Ors. [2024:KHC:44365]

The Karnataka High Court addressed whether the appellate authority under the POSH Act could grant interim relief where the statute did not expressly confer that power. The Court held that it could, invoking the maxim ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest, i.e. where a power is granted, the powers necessary to make it effective are granted with it.

The relevance to Section 12(1)(c) is direct. The absence of express statutory language authorising physical displacement of the respondent as an interim measure does not mean the power is absent. Where physical displacement is necessary to give the POSH Act's protective purpose effect, Section 12(1)(c) accommodates it.

E. Prof. Rasal Singh v. University of Delhi

Multiple faculty members at Ramanujan College complained of sexual harassment by the College Principal. The institution constituted a fact-finding committee and suspended the Principal. He challenged the suspension in the Delhi High Court.

The Court held that the POSH Act, by virtue of Section 28, operates “in addition to” and “not in derogation of” other laws. The employer's inherent disciplinary power to suspend an employee pending inquiry flows from the employer-employee relationship itself, independently of any specific provision in the POSH Act. Interim suspension without a finding of guilt is not punitive provided the order is framed in neutral administrative terms, it becomes stigmatic, and therefore impermissible, only when the order attributes guilt before the inquiry concludes.

The Court set aside the specific order before it because it contained language imputing misconduct. It then granted the institution liberty to pass a fresh, properly framed suspension order.

The significance of this decision is structural. Employers do not need to locate their power to displace the respondent exclusively in Section 12 of the POSH Act. Section 28 preserves their independent service-law powers. Those powers, properly exercised and neutrally framed, provide a parallel track for interim respondent-removal that sits alongside, and reinforces, the Section 12 framework.

F. Shankarlal Namdeo v. State of Madhya Pradesh [2024 SCC OnLine MP 5512]

A Sub-Inspector posted at VI^th Battalion SAF, Jabalpur was transferred 150 kilometres away to Maihar, the transfer being ordered on account of a pending POSH complaint against him. Two prior administrative inquiries had returned a clean chit. The POSH proceedings before the ICC had come to an indefinite standstill because the complainant herself refused to cooperate before the committee, expressed distrust in both the ICC and the Local Committee without assigning any specific ground, and submitted her letter of distrust on the very date the transfer order was issued, a coincidence the Court found significant.

The Madhya Pradesh High Court quashed the transfer. It held that for a transfer to constitute a statutory transfer under Section 12 of the POSH Act, it must flow from a recommendation of the Internal Complaints Committee. A transfer ordered on the recommendation of the Commandant, who had constituted the ICC but was not the ICC, did not satisfy this requirement. Transfer merely on account of POSH pendency, without ICC recommendation, amounted to undue victimisation of the petitioner.

Critically, the Court did not restore the petitioner to the shared workspace. It granted liberty to transfer, post, or attach the petitioner to any other office or establishment within Jabalpur city only, during pendency of the POSH proceedings, to maintain a cordial atmosphere. Spatial separation survived even in the respondent's favour.

This judgment supports two propositions. First, Section 12 transfers, in either direction, require ICC recommendation; the employer's general administrative transfer power is not a substitute for the statutory route. Second, even a court sympathetic to a respondent's grievance did not treat shared workspace as a protected entitlement. The floor of judicial tolerance for spatial separation has been established inasmuch as it is maintained regardless of which party the Court is protecting.

G. Aureliano Fernandes v. State of Goa & Ors.

A faculty member at Goa University faced multiple complaints of sexual harassment from female students. The ICC conducted its inquiry ex parte after the respondent repeatedly failed to appear, citing medical grounds, and recommended his termination. The Supreme Court found the inquiry procedurally defective and directed a fresh inquiry.

In the course of those proceedings, the Court made observations that extend well beyond the specific facts. After a decade of the POSH Act's operation, implementation and enforcement remain inadequate. The Court issued nationwide directions for compliance and, in December 2024 follow-up proceedings, directed Chief Secretaries of all States and Union Territories to survey entities that had failed to constitute Internal Committees.

If the Supreme Court found the POSH Act's enforcement inadequate at the most basic level, institutional compliance, IC constitution, the quality of substantive interim relief decisions, which receives almost no supervisory attention, is almost certainly worse. Aureliano Fernandes (Supra.) creates the institutional mandate for reform. The Section 12 argument this article makes is one component of that reform.

VI. The Section 12(1)(c) Argument

Section 12(1)(c) empowers the IC to recommend “such other relief to the aggrieved woman as may be prescribed.” Institutions read this as a narrow residual clause, whatever the Rules have already prescribed, and nothing more. That reading is wrong.

Rule 8 is the primary prescribed content of Section 12(1)(c). It authorises the IC to restrain the respondent's supervisory authority over the complainant. The underlying principle is clear inasmuch as where the respondent's continued exercise of a particular power or access causes or risks harm to the complainant or the integrity of the inquiry, that power or access can be curtailed. There is no principled reason why the same logic does not extend to physical access to shared workspaces.

Read purposively, with the Act's constitutional grounding in Articles 14, 15, and 21, and with the Karnataka High Court's holding that powers necessary to give effect to a statutory purpose are implied within it, Section 12(1)(c) supports the following interim measures against the respondent:

1.Mandatory no-contact and no-access orders covering shared physical spaces, common communication infrastructure, and shared subordinate staff.

2.Temporary removal from the complainant's workspace, with access to an alternative workspace provided.

3.In organisations with hybrid or remote-work infrastructure, a direction that the respondent work from an alternate location for the duration of the inquiry.

4.Where the respondent has supervisory access to potential witnesses, a restriction on that access beyond what Rule 8 already addresses.

None of these measures involves a finding of guilt. None reduces pay, grade, or substantive service conditions. All are administrative and protective. The “not punitive” constraint that Section 12 imposes is not a bar to respondent-focused interim measures, it is a bar to disproportionate and stigmatic ones. The two are routinely conflated, always to the complainant's disadvantage.

VII. The Misuse of the “Not Punitive” Argument

Every respondent who challenges an interim displacement order raises the same argument, i.e., the measure is punitive because there has been no finding of guilt. Courts have consistently rejected the extreme version of this claim. The settled legal position, distilled from the judgments above, can be stated plainly.

A transfer to an equivalent position at the same pay and grade is not punitive. This is beyond dispute. A restriction on the respondent's supervisory authority over the complainant is not punitive.^[3] An interim suspension framed in neutral administrative terms is not punitive.^[4] Physical exclusion from a shared workspace with access to an alternative workspace is not punitive.^[5]. What is punitive, and what Section 12 prohibits at the interim stage, is a reduction in pay or grade, a transfer that is effectively a demotion, and any order that attributes guilt before the inquiry concludes.

The proportionality framework is straightforward: the measure must match the purpose. If the purpose is to protect the complainant's safety and the integrity of the inquiry, then any measure that achieves those purposes without adversely affecting the respondent's substantive service conditions is lawful. ICs and employers who refuse to act against the respondent because “it would be punitive” are not applying the law, they are hiding behind a misreading of it.

Moreover, the complainant's right to remain in her professional environment is a constitutional interest under Article 21. The respondent's preference to remain in his current physical workspace is a service interest. The natural justice protection against punitive interim action exists to guard against disproportionate harm to the respondent's service rights. It does not require the complainant to sacrifice her constitutional rights in the process.

VIII. The Default-Direction Problem

The deepest problem with current Section 12 practice is not that complainant-transfer is always wrong. There will be cases where it is the most appropriate or the only feasible measure. The problem is that complainant-transfer has become the default requiring no justification, no recorded reasons, no engagement with alternatives. Respondent-displacement, by contrast, is treated as exceptional, requiring elaborate justification and institutional courage that most ICs do not have.

That inversion has no statutory basis. Section 12(1)(a) uses the word “or”. It creates a genuine, equal choice between two directions of transfer. An IC that reaches for complainant-transfer without asking whether respondent-transfer would be more appropriate is not exercising a statutory discretion. It is abdicating it.

Even courts that have shown some sympathy to respondent-petitioners challenging their transfers have not restored the status quo ante of shared workspace. In Shankarlal Namdeo (Supra.) the Madhya Pradesh High Court quashed a transfer order that had sent the respondent-petitioner 150 kilometres away without any ICC recommendation, holding that transfer merely on account of POSH pendency, without the committee's recommendation, amounts to undue victimisation of the petitioner. The Court granted relief, but confined it to transfer within Jabalpur city only. It did not restore the petitioner to the shared workspace. Spatial separation was maintained even in the respondent's favour. That is the floor, not the ceiling, of what an IC should be recommending as a default.

IX. What Reform Requires

The argument in this article calls for reform at three levels, vis a vis, statutory, regulatory, and institutional.

At the statutory level, Section 12(1)(a) should be amended to create a soft presumption in favour of respondent-transfer. Any IC recommendation to transfer the complainant instead should require recorded reasons explaining why respondent-transfer is not feasible or appropriate. The current “or” formulation, which treats both directions as equally weighted in law, does not reflect reality and should not be left to practice to resolve.

At the regulatory level, Rule 8 should be expanded. Physical exclusion of the respondent from shared workspaces for the duration of the inquiry, with provision of an alternative workspace, should be expressly listed as a prescribed interim measure under Section 12(1)(c). Remote-work arrangements, where available, should be expressly identified as a permissible form of this relief. The current Rule 8, which addresses only supervisory and evaluative authority, leaves the most important protective measure, physical separation on the respondent's side, to implication.

At the institutional level, ICs must be trained to approach every Section 12 decision with a structured analytical sequence, i.e., firstly, whether the respondent can be displaced rather than the complainant; secondly, if respondent-displacement is feasible, recommend it; and finally, if complainant-transfer is nonetheless recommended, record specific reasons and ensure the transfer carries no reduction in the complainant's professional standing, access to work, or institutional visibility.

Employer accountability must also be engaged. Where an employer transfers the complainant rather than the respondent without recorded justification from the IC, that should constitute a deemed failure to implement Section 12 obligations, attracting penalties under Section 26 of the Act.

The POSH Act was enacted to protect women at their workplaces. Section 12 was written to give that protection an interim mechanism during the pendency of inquiry. For twelve years, institutions have used that mechanism to displace the complainant and protect the respondent's institutional comfort.

The statute does not require this. The word “or” in Section 12(1)(a) is a genuine choice. Section 12(1)(c) is a residual empowerment, not a closed list. Section 28 preserves the employer's independent disciplinary powers. The courts have said that the respondent can be moved, constrained, and displaced without any legal infirmity. The Supreme Court has said that the POSH Act's enforcement is inadequate and that reform is overdue.

What remains is institutional will. The decision to treat the Respondent's continued presence in the shared workspace as the circumstance requiring intervention, instead of compelling the Complainant to bear the burden of adjustment, is not a question of law. The law already supports it. It is a question of whether the institutions that administer this Act will read it as what it is; a statute written to protect the woman who complained, not to protect the man she complained about.

1. See Vishaka v. State of Rajasthan [(1997) 6 SCC 241], wherein the Supreme Court held that sexual harassment of women at the workplace violates the fundamental rights guaranteed under Articles 14, 15, 19(1)(g), and 21 of the Constitution of India, and that the right to work with dignity is an inalienable component of the right to life under Article 21. ↑

2. See Maneka Gandhi v. Union of India [(1978) 1 SCC 248], wherein the Supreme Court held that a law or procedure affecting rights under Article 21 must satisfy the threefold requirement of being just, fair, and reasonable, and that any procedure which is arbitrary, oppressive, or unreasonable cannot be said to be in conformity with Article 21. The principle has been consistently applied to hold that statutory mechanisms operating in the field of fundamental rights must be interpreted and administered in a manner that advances, and not defeats, the constitutional guarantee they are designed to protect. ↑

3. Reference in this regard may be placed on Rule 8 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. ↑

4. Reference in this regard may be placed on Prof. Rasal Singh v. University of Delhi & Ors. [2026:DHC:3449], where the Hon'ble High Court of Delhi said so unequivocally. ↑

5. Reference in this regard may be placed on Ms. Pi & Ors. v. Jawaharlal Nehru University & Ors. [2018:DHC:3551]. ↑