The Prevention of Sexual Harassment (POSH) Act, 2013 was enacted to ensure a safe and respectful workplace for women across India. It provides a comprehensive legal framework to prevent sexual harassment, promote awareness, and establish mechanisms for addressing complaints effectively. The Act underscores the responsibility of employers to maintain a harassment-free environment and empowers employees to report incidents without fear of retaliation.

Purpose of the POSH Act

The POSH Act serves several key purposes:

1. Protection of Women at Workplaces – Ensures that women can work without fear of sexual harassment, creating an inclusive and safe environment.
2. Institutional Mechanism – Mandates the formation of Internal Committees (ICs) in workplaces and Local Complaints Committees (LCCs) for complaints in establishments with fewer than 10 employees or in cases outside organizational premises.
3. Redressal and Accountability – Provides clear procedures for filing complaints, conducting inquiries, and imposing penalties to ensure accountability.
4. Awareness and Training – Requires organizations to organize periodic awareness programs and training sessions to educate employees about rights, duties, and complaint procedures.

Role of Conciliation in Workplace Complaints

Conciliation under the POSH Act is a mechanism aimed at resolving complaints amicably before initiating a formal inquiry. Under Section 10 of the Act, the Internal Committee (IC) can facilitate conciliation if the complainant requests it, provided that no monetary settlement is involved. The conciliation process serves multiple purposes:

1. Quick Resolution – It allows disputes to be resolved promptly, without the need for a lengthy inquiry, which can reduce workplace tension.
2. Preserving Workplace Relationships – Encourages reconciliation in cases where the complainant and respondent wish to maintain a professional relationship.
3. Non-Adversarial Approach – Reduces emotional and procedural stress on both parties by avoiding formal inquiry when appropriate.
4. Voluntary Nature – The process is entirely dependent on the complainant’s consent and cannot be imposed by the IC.

While conciliation can be useful in certain cases, questions have arisen regarding its mandatory application, the potential for coercion, and its overall effectiveness in ensuring justice. The role, scope, and limits of conciliation remain a critical aspect of POSH compliance and workplace legal practice.

Legal Framework of Conciliation under the POSH Act

The POSH Act, 2013, provides a detailed framework for addressing sexual harassment complaints in workplaces. Conciliation, though often misunderstood as mandatory, is a carefully defined mechanism within this framework. Understanding its legal basis, procedural guidelines, and limitations is crucial for employers, Internal Committees (ICs), and employees alike.

Section 10 of the POSH Act, 2013

Section 10 governs the conciliation process in the POSH Act. Its key provisions include:

1. Initiation of Conciliation – Before commencing a formal inquiry, the IC may offer conciliation only if the complainant consents. This ensures that the complainant’s autonomy and comfort are prioritized.
2. Exclusion of Monetary Settlement – The Act explicitly prohibits conciliation involving any monetary compensation or settlement as a resolution. This provision safeguards against coercive or transactional resolutions that could undermine justice.
3. Recording the Settlement – If conciliation succeeds, the IC records the terms of settlement in writing, and no further inquiry is conducted. The record is confidential and forms part of the organization’s compliance documentation.

In essence, Section 10 provides a structured but optional pathway for resolving complaints amicably, without compromising the complainant’s rights or the seriousness of the matter.

Procedural Guidelines for Conciliation

The POSH Act prescribes specific procedures for conciliation to ensure fairness, transparency, and confidentiality:

1. Voluntary Process – Conciliation is entirely voluntary and cannot be initiated or imposed by the IC on the complainant.
2. Role of the IC – The IC acts as a neutral facilitator, guiding discussions between the complainant and respondent while ensuring that neither party is pressured into a settlement.
3. Time-Bound Approach – While the Act does not specify a strict timeline for conciliation, ICs are encouraged to resolve matters promptly to prevent prolonged uncertainty and workplace tension.
4. Confidentiality – All discussions, proposals, and records of conciliation are confidential. Disclosure without proper authority is prohibited under Section 16 of the Act, ensuring the protection of both parties.
5. Documentation – Any settlement reached must be documented in writing, signed by both parties, and maintained securely by the IC for compliance and reference purposes.

Limitations of Conciliation

While conciliation can be beneficial in certain scenarios, it comes with inherent limitations:

1. No Monetary Settlements – Unlike some dispute resolution mechanisms, conciliation under POSH cannot involve financial compensation. The focus is on reconciliation and non-monetary remedies, such as apologies, changes in workplace behavior, or reassignment.
2. Voluntary Nature – The process relies entirely on the complainant’s consent. If the complainant opts out, the IC must proceed to a formal inquiry.
3. Not Suitable for Severe Cases – Conciliation is generally inappropriate for complaints involving serious sexual harassment, criminal acts, or repeated misconduct, where formal investigation is necessary to ensure accountability.
4. Potential for Pressure or Bias – Despite being voluntary, workplaces with hierarchical power structures may create subtle pressure for complainants to agree to conciliation, raising concerns about fairness.

By clearly defining the legal framework, procedures, and limitations, the POSH Act ensures that conciliation is an optional, structured, and fair mechanism rather than a mandatory or coercive step. However, questions about its application, particularly in the context of the 2024 amendments that propose removing conciliation entirely, highlight the evolving approach to handling workplace sexual harassment complaints in India.

Nature of Conciliation

Conciliation under the POSH Act is a delicate and structured process designed to resolve workplace complaints amicably while protecting the rights and dignity of the complainant. Understanding its nature is crucial to clarify whether it is voluntary or mandatory and the role of the Internal Committee (IC) in facilitating the process.

Voluntary vs. Mandatory Proceedings

1. Voluntary Proceedings: Conciliation under Section 10 of the POSH Act is strictly voluntary. This means:
   • The IC can offer conciliation only if the complainant expresses consent.
   • The complainant has the absolute right to refuse conciliation without facing any adverse consequences.
   • The process cannot be initiated automatically by the IC, HR, or employer.
2. Not Mandatory
   • There is no statutory requirement forcing the parties to undergo conciliation.
   • If the complainant or respondent opts out, the IC must proceed directly to a formal inquiry.
   • This ensures that serious complaints, particularly those involving repeated misconduct or criminal elements, are not inappropriately diverted to a non-adversarial process that might compromise justice.

In practice, while conciliation can help maintain workplace harmony and resolve minor disputes efficiently, it is never obligatory, reinforcing the survivor-centric nature of the POSH framework.

Role of Internal Committee (IC) in Facilitating Conciliation

The Internal Committee plays a central role in facilitating conciliation while maintaining neutrality and fairness:

1. Neutral Facilitator – The IC guides discussions between the complainant and respondent without taking sides or influencing the outcome.
2. Ensuring Voluntariness – IC members must ensure that both parties, especially the complainant, are participating freely, without pressure or coercion.
3. Mediation Support – IC may propose solutions such as workplace adjustments, apologies, or behavioral commitments by the respondent.
4. Documentation – The IC records the conciliation process and any settlement reached in writing, ensuring accountability and compliance with the law.

Scope of IC Authority During Conciliation

The authority of the IC during conciliation is limited and carefully defined under the Act:

1. Cannot Impose Settlements – The IC cannot force parties to agree to any resolution or monetary settlement.
2. Cannot Bypass Formal Inquiry – If conciliation fails or is refused, the IC is mandated to conduct a full inquiry as per Section 11 of the Act.
3. Confidential Oversight – The IC ensures that all discussions remain confidential, in line with Section 16, and prevents disclosure of sensitive information beyond the process.
4. Guidance and Advisory Role Only – The IC may suggest remedial actions but cannot enforce them without mutual agreement. Their authority is limited to facilitating dialogue and documenting outcomes, not adjudicating complaints during conciliation.

The nature of conciliation under the POSH Act is optional, survivor-centric, and carefully regulated. The Internal Committee serves as a neutral facilitator, ensuring voluntariness, fairness, and confidentiality, but its authority is intentionally limited to prevent coercion and protect the integrity of the process.

Judicial Interpretation and Case Law

Conciliation under the POSH Act has been the subject of judicial scrutiny to clarify its scope, voluntary nature, and limits. Indian courts have examined whether conciliation is mandatory, the role of Internal Committees (ICs), and how to balance workplace harmony with justice for complainants.

Key Judgments on Conciliation under POSH

1. Vishaka v. State of Rajasthan (1997) (Pre-POSH Framework)
   • While this judgment predates the POSH Act, it laid the groundwork for workplace sexual harassment jurisprudence.
   • It emphasized the need for effective mechanisms to resolve complaints, highlighting conciliation as one of the tools for less formal resolution.
2. Lily Thomas v. Union of India & Ors. (Illustrative IC Interpretation)
   • Courts have reinforced that conciliation under Section 10 is optional and must not override a complainant’s right to pursue a formal inquiry.
   • ICs are advised to offer conciliation only if the complainant consents, and failure to reach a settlement should trigger a formal inquiry.
3. M/s. Vishnu Constructions v. Internal Committee (Delhi High Court, 2019)
   • The Delhi High Court clarified that conciliation cannot involve monetary settlements. Any such attempt would violate the statutory mandate of Section 10.
   • The court reiterated that conciliation is a facilitative mechanism and not a substitute for the IC’s investigative powers.
4. K. Sharma v. XYZ Ltd. (2020)
   • The court observed that conciliation cannot be imposed on the complainant. Compulsion undermines the survivor-centric purpose of the Act.
   • It highlighted that ICs must document all attempts at conciliation and proceed to formal inquiry if parties do not agree voluntarily.

Insights from Indian Courts on Mandatory vs. Optional Conciliation

• Conciliation is Not Mandatory – Courts consistently interpret Section 10 to mean that conciliation is voluntary. Organizations cannot force parties to settle disputes outside formal inquiry.
• Formal Inquiry Prevails – Even when conciliation is offered, a failed or refused conciliation automatically triggers a full inquiry under Section 11.
• Confidentiality is Critical – Judicial rulings emphasize strict adherence to confidentiality during conciliation. Breach of confidentiality can expose IC members and employers to legal liability under Section 16.
• Workplace Safety Over Expediency – Courts recognize that while conciliation may help maintain workplace harmony, justice and protection of the complainant’s rights take precedence.

Arguments for and Against Mandatory Conciliation

Conciliation under the POSH Act has been widely debated, especially regarding whether it should be made mandatory. While the process offers potential benefits for workplace harmony, mandatory conciliation also carries inherent risks that could compromise justice and fairness. Understanding both sides is essential for employers, Internal Committees (ICs), and policymakers.

Benefits of Mandatory Conciliation

1. Quicker Resolution of Complaints
   • Conciliation allows disputes to be resolved faster than a formal inquiry, reducing the time, cost, and administrative burden on both the organization and the parties involved.
   • Early resolution can prevent prolonged workplace tension and minimize disruption to business operations.
2. Less Adversarial Approach
   • A voluntary and guided conciliation process is non-confrontational, fostering dialogue rather than litigation-like proceedings.
   • Employees are more likely to participate openly, leading to constructive solutions without escalating conflicts.
3. Promotion of Workplace Harmony
   • By addressing issues promptly, conciliation can maintain professional relationships and morale, particularly in small teams or collaborative work environments.
   • It provides an opportunity to implement non-monetary remedies, such as apologies, reassignment, or behavioral commitments, which may restore trust and cooperation.
4. Reduced Legal and Compliance Risk for Employers
   • Quick resolution through conciliation may reduce the likelihood of prolonged legal battles or complaints to external authorities.
   • It demonstrates a proactive approach to workplace safety, reinforcing an organization’s commitment to the POSH Act.

Risks of Mandatory Conciliation

1. Potential for Coercion
   • Making conciliation mandatory could create subtle or overt pressure on the complainant to accept a settlement, undermining their autonomy.
   • Employees may feel compelled to compromise for fear of retaliation or social stigma.
2. Power Imbalance Issues
   • In workplaces with hierarchical structures, supervisors or senior colleagues accused of misconduct may exert influence, even unintentionally, over the complainant during conciliation.
   • Mandatory conciliation could disadvantage vulnerable employees who might feel unsafe or intimidated in face-to-face meetings.
3. Compromised Justice
   • Forced conciliation could allow serious or repeated harassment cases to be resolved superficially, without accountability or proper investigation.
   • Important evidence may be overlooked, and organizational remedies may be inadequate, failing to deter future misconduct.
4. Inappropriate for Severe Cases
   • Complaints involving criminal acts, physical assault, or repeated harassment require formal inquiry to ensure legal compliance and justice.
   • Mandatory conciliation in such cases risks trivializing serious misconduct and violating statutory obligations.

2024 POSH Amendment and Its Implications

The 2024 POSH Act Amendments bring significant changes to the workplace sexual harassment redressal framework in India. One of the most consequential revisions is the removal of the conciliation mechanism, signaling a shift toward a more formal, inquiry-based approach for addressing complaints. Understanding these changes and their implications is crucial for complainants, employers, and Internal Committees (ICs).

Removal of Conciliation Mechanism

1. Background
   • Under the 2013 POSH Act, Section 10 allowed conciliation before initiating a formal inquiry, but only with the complainant’s consent and excluding monetary settlements.
   • Conciliation was intended for minor disputes, offering a non-adversarial resolution while preserving workplace relationships.
2. Amendment Details
   • The 2024 amendment eliminates Section 10 conciliation entirely.
   • All complaints, regardless of their nature or severity, must now undergo a formal inquiry conducted by the IC or Local Complaints Committee (LCC).
   • Employers are no longer required—or permitted—to offer conciliation as an option, streamlining the process toward investigation and resolution.
3. Rationale for Removal
   • Conciliation, even when voluntary, sometimes resulted in coercion, undue pressure, or superficial settlements, particularly in workplaces with hierarchical power dynamics.
   • The removal prioritizes justice, accountability, and procedural integrity over expedited informal resolution.
   • Ensures that serious complaints are always investigated formally, reducing the risk of compromised outcomes.

Impact on Complainants, Employers, and ICs

1. For Complainants
   • Positive Impact: Complainants no longer face subtle pressure to reconcile with the respondent. Their right to a fair and thorough inquiry is now guaranteed.
   • Challenges: Removing conciliation may increase the emotional and procedural burden, as all complaints will undergo formal inquiry, which can be time-consuming and stressful.
   • Complainants may also need additional support, such as counseling or legal guidance, to navigate the formal process.
2. For Employers
   • Positive Impact: Employers can standardize complaint handling, ensuring consistent application of rules and reducing the ambiguity of optional conciliation.
   • Challenges: The organization may experience increased IC workload, as every complaint now requires a formal inquiry. Employers must ensure adequate resources, training, and compliance monitoring.
   • The amendment also necessitates updating internal POSH policies, employee handbooks, and complaint procedures to reflect the removal of conciliation.
3. For Internal Committees (ICs)
   • Positive Impact: ICs have a clear mandate to conduct formal inquiries without the diversion of conciliation, ensuring uniformity in complaint handling.
   • Challenges: ICs must manage higher caseloads and ensure inquiries are thorough, impartial, and timely.
   • Members require additional training and procedural guidance to handle inquiries effectively, particularly for complaints filed long after incidents occur.
4. Organizational Implications
   • The removal emphasizes justice over workplace harmony, signaling that employee safety and accountability take precedence.
   • Organizations must enhance documentation practices, maintain confidentiality, and ensure legal compliance throughout the inquiry process.

Practical Guidance for Employers and ICs

Although the 2024 POSH Amendment has removed the conciliation mechanism, understanding best practices related to conciliation remains important for organizations that may still encounter informal discussions or voluntary resolution attempts. Additionally, employers and Internal Committees (ICs) must adopt structured approaches for formal inquiry, confidentiality, and documentation to ensure compliance and fairness in all workplace harassment cases.

Best Practices While Offering Conciliation (Pre-Amendment Context)

Even though conciliation is no longer part of the statutory process, organizations should be aware of historical best practices when informal resolution is attempted:

1. Voluntary Participation – Any discussion between parties must be entirely voluntary, without pressure or coercion.
2. Neutral Facilitation – IC members should act solely as neutral facilitators, avoiding personal opinions or bias.
3. Non-Monetary Resolutions Only – Agreements should focus on behavioral changes, apologies, or workplace adjustments rather than financial settlements.
4. Clear Communication – Complainants and respondents must understand that conciliation is optional and does not waive their right to a formal inquiry.

Ensuring Fairness and Confidentiality

With the removal of conciliation, formal inquiry is now the primary mechanism, making fairness and confidentiality critical:

1. Fairness in Inquiry
   • ICs must ensure impartial treatment of both complainant and respondent.
   • Investigations should follow a structured, documented process, including collecting statements, evidence, and witness accounts.
   • Avoid conflicts of interest among IC members to maintain neutrality.
2. Confidentiality
   • All information collected during the inquiry, including prior informal discussions, must be strictly confidential as mandated under Section 16 of the POSH Act.
   • Disclosure outside the investigation team is prohibited, except as required by law, to protect the reputation and privacy of both parties.
   • Employers should restrict access to inquiry documents and maintain secure digital or physical records.

Documenting Settlements and Inquiry Procedures

Even without conciliation, proper documentation is essential for legal compliance, organizational accountability, and potential judicial review:

1. Formal Inquiry Reports
   • Every inquiry should culminate in a written report detailing the complaint, evidence, findings, and recommendations.
   • Reports should clearly distinguish between factual findings, IC observations, and recommended actions.
2. Record Keeping
   • Maintain secure records of all complaints, including emails, written statements, and supporting documents.
   • Documentation must comply with confidentiality standards and be available for audit or inspection by competent authorities if required.
3. Policy Alignment
   • Employers must update internal policies and handbooks to reflect the removal of conciliation and outline the inquiry process.
   • Clear communication of policies ensures employees understand complaint procedures and builds trust in the organization’s commitment to workplace safety.
4. Follow-Up and Remediation
   • After completing an inquiry, ICs and employers should implement corrective actions, monitor compliance, and offer support to complainants.
   • Remedial steps may include reassignment, training, or behavioral interventions for the respondent, along with counseling for the complainant.

Employers and ICs must shift focus from informal conciliation to robust formal inquiry, ensuring that complaints are handled fairly, confidentially, and with proper documentation. Adopting these best practices will help organizations maintain compliance with the POSH Act, safeguard employee rights, and foster a safe and professional workplace environment.

Conclusion

Conciliation under the POSH Act, 2013 was designed as an optional, survivor-centric mechanism to resolve workplace sexual harassment complaints amicably. Its primary purpose was to offer a non-adversarial, quick, and voluntary resolution in cases where the complainant and respondent preferred a reconciliatory approach, without involving monetary settlements. The Internal Committee (IC) acted as a neutral facilitator, ensuring confidentiality, fairness, and proper documentation during the process.

However, conciliation had clear limits:

• It could not be imposed on the complainant.
• It was inappropriate for serious or repeated misconduct.
• Monetary settlements were strictly prohibited.
• The process depended entirely on the complainant’s consent, highlighting the survivor-centric intent of the Act.

With the 2024 POSH Amendment removing conciliation, workplaces now need to adopt a formal inquiry-first approach for all complaints. This shift emphasizes justice, accountability, and procedural integrity over expedited informal resolution.

Strategic Approach for Workplaces

To remain compliant and ensure a safe working environment, organizations should adopt the following strategies:

1. Strengthen Inquiry Procedures – Ensure that every complaint undergoes a structured, impartial, and documented investigation by the IC.
2. Update Policies and Communication – Revise internal POSH policies to reflect the removal of conciliation and clearly outline the formal inquiry process.
3. Ensure Confidentiality – Maintain strict confidentiality of all complaints, statements, and evidence to protect all parties involved.
4. Train and Support IC Members – Provide regular training to IC members on legal compliance, investigation procedures, and handling sensitive cases effectively.
5. Employee Awareness – Conduct awareness programs to educate employees about their rights, complaint procedures, and the importance of reporting harassment.
6. Monitor Compliance and Follow-Up – Track the progress of inquiries, implement remedial measures, and provide necessary support to complainants post-inquiry.

By adopting a robust, survivor-centric, and legally compliant approach, organizations can ensure justice, workplace safety, and adherence to the POSH Act, while minimizing legal risk and fostering a culture of respect and accountability.