Football, cricket, wrestling, hockey, boxing – all these sports share a commonality. You might say it's the spirit of competition. However, on a closer examination, another disconcerting common thread emerges in the context of Indian sports – sexual harassment at the workplace.

Statistics between 2010 and 2020, as reported by the Sports Authority of India, reveal nearly 45 complaints of sexual harassment, with 29 of them directed against coaches. Yet, these figures likely represent only a fraction of the actual cases, as the absence of robust Prevention of Sexual Harassment [“PoSH”] policies often deters many victims from reporting incidents fearing retaliation.

One prominent entity grappling with accusations of sexual harassment is the Board of Control for Cricket in India (BCCI). Responding to these allegations, BCCI has taken a significant step by implementing a comprehensive PoSH Policy [“Policy”] and establishing an Internal Committee [“IC”] in adherence to the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 [“PoSH Act”]. While commendable, a critical question arises – does the Policy effectively align with the provisions of the PoSH Act? Let's delve into an examination of this alignment.

Alignment with the PoSH Law

Before offering a critical assessment of the BCCI Policy on Prevention of Sexual Harassment, it is valuable to acknowledge and appreciate its positive aspects:

• The Scope and Purpose [Clauses 1-3]: The delineation of the Policy's scope and purpose emphasizes its compliance with the PoSH Act and Rules. It explicitly states that the Policy is subject to the Act and is subject to periodic amendments in alignment with the provisions of the Act.
• Defining Sexual Harassment [Clause 4]: The Policy defines sexual harassment in alignment with the PoSH Act and further calls out the possibility of sexual harassment in instances where an individual’s submission to or rejection of unwelcome sexual conduct is used as a basis for employment or other engagement decisions affecting that individual.
• Applicability of the Policy [Clause 5]: The Policy brings under its ambit all persons involved with BCCI, including Administrators, Employees on a contract basis or otherwise, Players, Commentators, Team Officials, Match Officials, Production Crew, State Association Personnel and any other person contracted or engaged by the BCCI.
• Constitution of an Internal Committee [Clause 6]: The Policy assures its beneficiaries that complaints will be addressed by an IC that is constituted in accordance with the PoSH Act. Notably, to foster impartial hearings, the Policy mandates the quorum of 3 IC members, including the Presiding Officer and the External Member, addressing a concerning gap in the PoSH Act. Further, it creates scope for a constitution of a larger IC, referred to as the “National IC”, by including representatives from various offices, locations, committees, and State Associations. If a National IC is formed, the Policy outlines a dynamic approach to constituting an IC for specific cases of sexual harassment. Members are selected based on factors such as the complainant's and respondent's location, position in the reporting structure, department, etc.

  The Policy further recommends that to the extent possible, at least one member of the IC or National IC shall be a person touring with the relevant cricket teams. This provision aims to provide complainants with easy access to a committee member, fostering a more accessible and supportive environment for addressing concerns.

• Filing a Complaint [Clause 7]: This part of the Policy harmonizes well with the PoSH Act in fostering an enabling environment for raising complaints, including forwarding complaints to the IC if received by any other person. Additionally, the Policy imposes a crucial responsibility on the Presiding Officer and the External Member. Upon receiving a complaint, they are mandated to assess whether any IC member is implicated or has close ties to the complaint, potentially causing a conflict of interest. In such instances, the affected members are promptly replaced by the BCCI for the duration of that particular inquiry. This precautionary measure ensures an impartial and fair examination of the matter at hand.
• Punishment for Retaliation [Clause 13 & 15]: The Policy mandates the penalization of an individual found guilty of victimizing, intimidating, or exerting influence, either directly or indirectly, on a person involved in the redressal process – be it a witness or a complainant. This provision reaffirms BCCI’s unwavering commitment to a zero-tolerance stance on sexual harassment.
• Duty to Cooperate [Clause 15]: The Policy places the onus on all BCCI personnel to actively cooperate in sexual harassment inquiries. Non-compliance with this requirement may lead to disciplinary action, ranging from warnings to termination.
• Sexual Offenses Against Minors [Clause 18]: In cases where the BCCI becomes aware of a sexual offense involving a minor or has a reasonable apprehension of it, the Policy imposes a duty on the BCCI to promptly report such incidents to the Special Juvenile Police Unit or the local police. This proactive step aligns with the provisions outlined in the Protection of Children from Sexual Offenses Act, 2012 [POCSO] and the Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ Act].

Non-Alignment with the PoSH Law

While the Policy encompasses the majority of provisions outlined in the PoSH Act, it does exhibit certain shortcomings in specific aspects.

• Incorrect Applicability – The Policy reiterates at multiple instances that it is subject to the PoSH Act. However, a discrepancy arises when it states that a complaint can be filed under it by any BCCI personnel – “woman/man/third gender”, who experience sexual harassment at the workplace. While the intention is to make the policy gender-neutral, it contradicts the primary goal of aligning with the PoSH Act. This is a common shortcoming in many PoSH policies, inviting potential confusion and non-compliance with the Law.

  The PoSH Act specifically focuses on protecting women at the workplace who have been subjected to sexual harassment, aiming to safeguard their fundamental rights, including the right to life and to live with dignity. The law intends to encourage women to participate in the workforce by providing a right to a safe environment free from sexual harassment.

  While endorsing the gender-neutral stance of the Policy, it is essential to establish a separate mechanism for addressing cases of sexual harassment against women, i.e., the Internal Committee as mandated by the PoSH Act. Cases involving sexual harassment against individuals of other genders must be addressed by a distinct committee, whose constitution does not necessarily have to align with the PoSH Act. Here are a few reasons why:

  • Powers of a Civil Court - The IC, as empowered by the PoSH Act, holds the authority of a Civil Court. This authority cannot extend to committees hearing cases of sexual harassment filed by men and other genders, without the support of corresponding legislation.
  • Appeal - Only cases falling within the ambit of the PoSH Act, can be appealed in the Labor Court or High Court. Failing to establish a separate mechanism, falsely implies that cases filed by men and individuals of other genders can also be appealed to the courts.
  • Reporting - Neglecting to create a distinction in the Policy may lead to an inaccurate representation in the number of cases reported to the District Officer in the Annual Compliance Report, mandated by the PoSH Act.
  • Criminal Proceedings - The absence of a distinction in the Policy creates an incorrect impression that anyone can file a complaint under the Indian Penal Code (IPC). Currently, only women can seek redress for acts of sexual harassment under the IPC.

• Limiting the Scope of “Workplace” [Clause 5.3]: Although the BCCI has commendably defined workplaces in its Policy, it further delineates what a workplace is not, including:

  • venues of promotional and endorsement events where BCCI Personnel are not representing the BCCI
  • public appearances where BCCI Personnel appear in a capacity other than as representatives of the BCCI
  • events, whether formal or informal, attended by BCCI Personnel in a personal capacity (e.g. players attending events at the behest of personal sponsors, players attending social events with friends while on a match tour, etc.).

  Regrettably, such a clause directly contradicts the definition of "workplace" provided by the PoSH Act and as interpreted by the Courts. The Act intentionally maintains a broad definition of a workplace to ensure that any area where a woman may be subjected to sexual harassment is not unattended or unprovided for (Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University). Sexual harassment occurring anywhere has the potential to create a hostile environment for women at their place of work. Limiting the provision in a PoSH policy cannot negate the impact of sexual harassment on the workplace environment for women.

A Hit or A Miss?

There’s much to commend in the BCCI's PoSH Policy - a tailored, well-intentioned step in the right direction! However, to achieve full compliance with PoSH Law, refinement is essential. This critical enhancement will ensure the Policy's true effectiveness and alignment with the overarching objective of establishing a conducive work environment for women in the workplace.

Organizations need to introspect their PoSH policies - are they merely a legal safeguard, or do they genuinely reflect a commitment to fulfilling the objectives of the PoSH Law? Our experts at Rainmaker can guide you in achieving both compliance and a workplace that is safe, inclusive, and aligned with the true spirit of the PoSH Law. Allow us to make your workplace a model of safety and inclusivity.