INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
Although the Companies Act does not provide a spe - cific definition for “whistle-blowing”, it refers to report - ing of “genuine concerns”. While the term “genuine concerns” has also not been defined, it generally refers to serious issues that could impact the integrity and operations of an organisation such as instances of fraud, financial mismanagement, or corruption. Currently, private establishments fall outside the scope of this requirement, and hence they have the discretion to determine whether or not they would like to adopt a whistle-blower regime. In practice, many Indian employers have set up online speak-up forums and/or ethics hotlines that allow their employees to raise whistle-blowing complaints in a transparent manner. Additionally, the Whistle Blowers Protection Act, 2014 also enables any person to report concerns pertain - ing to: • an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988; • wilful misuse of power or discretion; and • attempt to commit or commission of a criminal offence by public servants. 8.2 Sexual Harassment and/or Violence Protections Against Sexual Harassment and/or Violence Indian law offers legal protection against sexual har - assment. Indian law provides specific protections for allegations of sexual harassment and violence under the PoSH Act as well as the provisions of the Bharatiya Nyaya Sanhita 2023 (BNS), the Indian criminal law regime. The PoSH Act defines “sexual harassment” as any form of unwelcome act or behaviour such as physi - cal contact, sexual advances, demands for sexual favours, or offensive remarks. It covers situations where such acts create a hostile work environment or adversely affect a woman’s employment. The law protects women, including interns, contractual work - ers, and domestic help, in workplaces across formal and informal sectors.
Under the PoSH Act, employers must establish an ICC to investigate allegations and recommend remedies, including disciplinary action. The law ensures confidentiality during proceedings and prohibits retaliation against complainants. Victims of workplace sexual harassment may also seek interim relief, such as transfers or leave. In cases involving criminal violence, survivors can file a police complaint for prosecution under the BNS. Refer to 1.3 Communication Channels for further details. While the law on the PoSH Act has not changed (other than being shaped by judicial precedents from time to time), under the Code on Wages, 2019 (“Wages Code”) (which replaces and subsumes the Payment of Bonus Act, 1965), conviction for sexual harassment will disqualify an employee from receiving a statutory bonus. This introduces a ground for disqualification that did not exist under the earlier regime. 8.3 Other Forms of Discrimination and/ or Harassment Including Bullying and/or Mobbing Discrimination Protections in India While there are specific laws that protect specific characteristics (refer to 1.3 Communication Chan- nels ), the primary source of such legal protection is the Constitution of India. The Constitution of India prohibits discrimination based on religion, race, caste, sex, or place of birth (Article 15) and ensures equality in public employment (Article 16). However, such rights can only be enforced against the state. With respect to specific types of protections, work - place discrimination or harassment related to caste is addressed under the Scheduled Castes and Sched - uled Tribes (Prevention of Atrocities) Act, 1989, which penalises acts of humiliation or exploitation of indi - viduals from such communities.
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