When the Court Gets It Wrong: A Closer Look at the Bombay HC’s POSH Judgment

In the recent case of Vinod Narayan Kachave vs. ICC & Anr., the Bombay High Court set aside an IC (ICC) report and an Industrial Court ruling that had found the respondent guilty of workplace misconduct under the POSH Act. While the judgment rightly criticized the IC for procedural lapses— points the author concurs with—it also raised eyebrows for its shortcomings, arguably more troubling. 

The IC report dated 30 September 2022 outlined three key allegations against the petitioner:

Incident 1

The complainant stated that Vinod Kachave made an inappropriate remark about her hair, comparing its length and volume to machinery, saying, "You must be using JCB to manage your hair." He then proceeded to sing a song related to her hair.

Incident 2

Another incident involved Vinod Kachave making a crude remark about a male colleague’s private part during a discussion in a common forum with female employees present. He reportedly asked the male employee about his girlfriend, and upon hearing that he had none, Kachave remarked, "Kyun, tera machine kharab hai?"

Incident 3

The complainant also raised concerns regarding her reporting manager, Madhavi Pawar, alleging that Madhavi frequently checked her out and casually discussed her attire with other male colleagues.

An excerpt from the court’s judgment:

Most importantly, the ICC has not considered the issue of whether the allegations… the first two incidents constitute sexual harassment of the complainant. It has completely ignored the fact that even if the allegations are taken as proved, no case of sexual harassment of the complainant was made out in the light of the peculiar facts and circumstances of the present case. The order passed by the Industrial Court is indefensible and liable to be set aside. The ICC report is set aside.

Here’s a breakdown of where the court’s reasoning may have fallen short of the spirit and intent of the POSH law.

1. Ignoring the Purpose of the POSH Act

The POSH Act is a gender-sensitive law meant to protect women from hostile work environments and unwanted behavior. The court, however, dealt with the case more as a procedural review and failed to acknowledge the Act’s preventive and protective objectives.

• No reference was made to the broader purpose of workplace dignity, equality, or safety.

• The court focused mainly on whether the complainant felt harassed at the time, rather than whether the behavior (of the petitioner) was objectively inappropriate.

2. Overemphasis on Cordial WhatsApp Messages

The court relied heavily on the fact that the complainant remained cordial in WhatsApp chats with the petitioner after the incident.

• Victims of workplace harassment often try to maintain harmony to avoid retaliation or further stress.

• Delayed recognition of harm is common, especially in environments where the power balance is skewed.

3. Failure to Apply the ‘Impact Over Intent’ Standard

The POSH Act and Supreme Court guidelines emphasize the act's impact on the woman, not the accused's intent.

• The court repeatedly mentioned that the comment about the complainant’s hair may not have been made with bad intentions.

• This approach sidelines the complainant’s right to a safe and dignified workspace, where casual remarks can cross boundaries.

4. Gender-Neutral Misreading of Sexual Harassment

In the second incident, the respondent made a sexually charged remark to a male colleague in front of female employees.

• The court dismissed it as irrelevant to the complainant because it wasn’t directed at her, and she was not present then.

• This ignored the fact that hearing such remarks in the workplace can also make a woman feel unsafe, embarrassed, or disrespected.

5. Neglecting the Concern of Witness Tampering

The IC had noted that the respondent spoke to two witnesses before their formal statements were recorded.

• The court failed to examine this seriously.

• Interference with witnesses can compromise the neutrality and reliability of any inquiry process.

6. Quick Dismissal of Industrial Court’s Findings

The High Court described the Industrial Court’s decision as “perverse” without a detailed explanation.

• It is rare for two levels of inquiry to be overturned unless gross errors are evident.

• The court missed a chance to strengthen internal inquiry processes and judicial oversight by dismissing both reports without a deeper discussion.

7. A Missing Song and Its Cultural Weight

Perhaps the most striking omission in this case is the absence of the song the respondent sang, widely believed to be "Yeh reshmi zulfein." The allegations from the IC report (reproduced above as Incident 1, 2, and 3) and the judgment merely say that he sang a “song related to her hair.” But this song, in Indian pop culture, is unmistakably romantic and suggestive.

Its lyrics praise a woman’s sensual beauty: “Yeh reshmi zulfein, yeh sharbati aankhein…”   When sung by a male colleague in a professional setting, directed at a female colleague’s physical appearance, it is far more than a playful comment. It becomes a public act of romantic or sexual innuendo—something the POSH Act was specifically designed to guard against.

The omission of the song’s name from official records—whether by the complainant, the IC, or legal counsel—meant the court never fully understood the act's cultural weight and implicit meaning. This reflects a broader issue in POSH cases: cultural context, tone, and suggestive subtext are often ignored in favor of literalism. When omitted, they dilute the full impact of the harassment experienced.

8. Silence on Power Dynamics and Hierarchy

One critical detail missing from the court’s judgment is whether the petitioner held any position of authority over the complainant.

No mention of his designation, reporting relationship, or whether he was senior to her. This absence is necessary because power dynamics are crucial in how workplace harassment is experienced and interpreted. A comment or action that may appear casual on the surface can feel far more intimidating or coercive when it comes from someone in a position of influence or authority.

In contrast, the complainant named her reporting manager in the third allegation. However, the petitioner’s rank or role in the organization is left undefined, which leaves a gap in fully understanding the context of the interactions. If the IC had clarified this—and if the court had considered it—it may have added weight to how the complainant’s experience was assessed, especially about workplace power imbalances.

9. A Crude Joke Directed at a Man Can Still Degrade Women

One of the allegations involved the petitioner making a sexually suggestive comment—“Kyun tera machine kharab hai?”—to a male colleague in a common forum where several female employees were present. While the court dismissed this as irrelevant because the complainant was absent and the comment wasn't directed at her, the impact on women in the workplace cannot be ignored.

Here’s why such remarks still matter under POSH:

• Normalizes sexual innuendo in professional spaces, lowering standards of respectful conduct.

• Degrades women as passive witnesses, forced to tolerate inappropriate humor.

• Undermines psychological safety, making it harder for women to feel secure and included.

• Reinforces toxic gender dynamics, where male bonding happens through sexualized talk.

• Sets the stage for escalation, blurring the boundaries of acceptable behavior.

Sexual harassment isn’t always about direct targeting—it’s also about creating an environment that demeans, embarrasses, or excludes. That’s precisely what the POSH Act is designed to prevent.

Conclusion

The judgment in this case exposes the tension between legal procedure and the spirit of gender justice. Courts play a crucial role in reinforcing the purpose behind laws like POSH. When they focus narrowly on technicalities, they risk sending a chilling message to those who need these protections most. As we work towards more inclusive workplaces, it is important to remember that harassment is not just about direct insults—it’s about the atmosphere, power dynamics, and cumulative effects of behavior that can quietly but deeply erode dignity.

And sometimes, it’s about what was said in a song—and what was left unsaid in a courtroom. 

For a complete understanding of all arguments, evidence (or the lack of it), and the court’s reasoning, readers are encouraged to download and read the order of the case titled Vinod Narayan Kachave vs. The Presiding Officer (ICC) and Anr.

Disclaimer: 
This blog is intended for informational and educational purposes only. The views expressed are those of the author, based on a personal reading and interpretation of publicly available court documents. This blog does not constitute legal advice, nor does it claim to represent the views of any court, organization, or party involved in the case. Readers are encouraged to consult legal professionals for specific advice or guidance on similar matters. Any errors or omissions are unintentional.