ABSTRACT This paper critically examines the arbitrability of sexual harassment disputes in India in light of the recent Constitutional Bench decision in Gayatri Balasamy v. ISG Novasoft Technologies Ltd., which, while addressing the modification of arbitral awards, fell short of conclusively settling the question of whether such disputes are arbitrable. Relying on established judicial tests for arbitrability as laid down in Booz Allenand Vidya Drolia, the paper explores how sexual harassment claims, particularly within the context of employment relationships, engage broader questions of public policy and statutory mandates under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. It argues that mandatory arbitration of such disputes undermines the procedural safeguards and victim‐centric mechanisms envisaged under the POSH framework. However, the paper does not advocate a wholesale retreat from India's pro‐arbitration approach. Instead, it proposes a careful approach that upholds three essential principles: ensuring arbitration is based on voluntary and informed consent, preserving statutory rights under the POSH Act, and safeguarding victims' unfettered access to justice. This paper undertakes a comparative jurisdictional analysis and recommends excluding sexual harassment claims from mandatory arbitration, codifying non‐arbitrable subject matters within the Arbitration and Conciliation Act, 1996, and permitting arbitration only where there is explicit, post‐dispute consent. This balanced approach would enable India to maintain its arbitration‐friendly image while aligning with its constitutional and international commitment to gender justice and workplace dignity.
Gupta et al. (Sun,) studied this question.