Catching the Office Cupid: Navigating the legalities of Fraternisation Policies in organisations

In today’s interconnected and fast-paced work environment, personal and professional lives often intersect, sometimes resulting in romantic relationships between colleagues in the workplace. To deal with the unique set of challenges posed by such relationships at the workplace, various organisations have chosen to put in place ‘Fraternisation Policies’ which their employees need to comply with.

These policies seek to prevent conflicts of interest, favouritism, and sexual harassment claims, as well as to maintain a professional work environment. However, the implementation and enforcement of these policies raise several legal questions, primarily concerning employees’ privacy rights.

In this article, we assess the enforceability of such policies under Indian law.

Contract Act

At its core, any workplace policy functions as an agreement between the employer and the employee, thus subject to the provisions of the Indian Contract Act, 1872 (the “Contract Act”). According to the Contract Act, an agreement is deemed void if its object is unlawful. Therefore, for a Fraternisation Policy to be valid and enforceable, it is imperative that such a policy has the elements of a valid contract.

While the requisites of offer, acceptance, free consent and consideration can be easily met with, the element of lawful object or consideration poses a challenge. As per the Contract Act, the consideration or object of an agreement is deemed to be unlawful if it is (i) forbidden by law; (ii) is of such a nature that, if permitted, it would defeat the provisions of any law; (iii) is fraudulent; (iv) involves or implies injury to the person or property of another; or (v) the court regards it as immoral, or opposed to public policy.

The ‘lawful object’ in the case of a Fraternisation Policy would be maintaining a professional and healthy workplace environment by restricting intimate relationships between employees, particularly where such relationships may give rise to conflicts of interest or allegations of favouritism.

While Indian courts have yet to definitively address whether the underlying objective of a Fraternisation Policy is legally valid, it can be reasonably argued that such a policy serves a lawful purpose, as it seeks to protect the legitimate interests of the employer by mitigating risks related to workplace conflicts, ensuring a safe work environment, and safeguarding against potential legal issues such as claims of harassment or bias, while aiming to promote a safe and healthy workplace culture.

Data Privacy Laws

The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (the “SPDI Rules”) sets forth the guidelines for the protection of sensitive personal data and information in India. The SPDI Rules define “Personal Information” as any information that relates to a natural person, which, either directly or indirectly, in combination with other information available or likely to be available with a body corporate, is capable of identifying such person. Accordingly, any information disclosed by an employee to an employer under a Fraternisation Policy may fall within the ambit of ‘Personal Information’, and for collecting or receiving such information, the employer must ensure that it has in place a privacy policy for handling such information. However, it is pertinent to note that, under the new Digital Personal Data Protection Act, 2023 (“DPDPA”), the collection and processing of personal data of employees by the employer will require the consent of the employee. Therefore, obtaining employees’ consent for disclosures under a Fraternisation Policy becomes a necessary mandate and could pose a hurdle to its implementation. While the DPDPA has not yet come into force, it is expected to be implemented soon, as it has already been notified in the official gazette. Consequently, employers are advised to draft all future policies and other employment documentation in line with the provisions of the DPDPA to avoid potential future conflicts.

Fundamental Rights and Fraternisation Policies: Article 19 and 21

Article 19(1)(a) of the Constitution of India recognizes the right to freedom of speech and expression. Freedom postulates within its meaning, both, an absence of State control as well as actions by the State which create the conditions for the exercise of rights and freedoms. In the landmark case of Supriyo and Ors. v. Union of India (“Supriyo”), the Hon’ble Supreme Court opined that the freedom of speech and expression extends beyond expressive words to include other forms of expression such as the manifestation of complex identities of persons through the expression of their sexual identity, choice of partner, and the expression of sexual desire to a consenting party.

Similarly, Article 19(1)(c) of the Constitution recognises the freedom to form associations or unions or co-operative societies. The Hon’ble Supreme Court in Supriyo expanded the meaning of the term ‘association’ to encompass intimate relationships between individuals. This broader interpretation ensures that the provisions of Article 19(1)(c) protect the individuals’ freedom to engage in other forms of association, thereby supporting all forms of expression protected under Article 19(1)(a).

Article 21 of the Constitution of India, which encompasses the ‘Right to Life’, states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The Right to Life is considered the most fundamental of all human rights, and any decision affecting human life, or which may put an individual’s life at risk, must call for the most anxious scrutiny. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi , the Hon’ble Supreme Court interpreted the right to life to include “the right to live with dignity and all that goes along with it, viz, the bare necessities of life such as adequate nutrition … and mixing and mingling with fellow human beings”.

The landmark judgement in KS Puttaswamy v. Union of India (“Puttaswamy”) further expanded the scope of Article 21 by recognising that privacy encompasses “personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation."

In the Supriyo judgement, the Hon’ble Supreme Court emphasised that the ability to choose one’s partner and to build a life together goes to the root of the right to life and liberty under Article 21. Entering into an intimate relationship and making choices in such relationships are also protected by the right to privacy. The Court reiterated, as in Navtej Singh Johar v. Union of India and Puttaswamy, that the right to privacy is not merely the right to be left alone but extends to decisional privacy or privacy of choice. The Court further emphasised that the relationships between individuals operate in a ‘private space’ and that the decisions taken in a private space, in the exercise of an individual’s autonomy (such as the choice of partner, or procreation), are ‘private activities’, which are shielded against state regulation.

Other than legally valid and binding restrictions, the right to intimate associations must be unrestricted, the Court said. It added that the law only constrains the right to choose a partner in certain situations such as when they are within ‘prohibited degrees of relationships’ or are in a consanguineous relationship’.

Previously, the judiciary was of the opinion that rights under Article 21 were only available against the state and not against private individuals. However, the Hon’ble Supreme Court in Kaushal Kishore v. State of Uttar Pradesh and Others later opined that the fundament rights under Article 19 and Article 21 can be enforced even against private parties.

Fraternisation Policies thus should balance professional standards with the protection of personal freedoms, ensuring that any restrictions imposed are legally valid and not overly intrusive.

Shops Act

Fraternisation policies typically outline specific consequences for violations, ranging from warnings to suspension and, in severe cases, termination of employment. Each State in India has its own Shops and Establishments Act, which governs working conditions and other employment-related matters. For instance, the Karnataka Shops and Commercial Establishments Act, 1961, mandates that the termination of employment needs to be for ‘reasonable cause.' What constitutes ‘reasonable cause’ is largely subjective and would need to be assessed bearing in mind the distinct facts and circumstances. While it can be argued that violation of an organisation’s fraternisation policy would be tantamount to ‘reasonable cause’, the validity of the same has not yet been examined before an Indian court.

POSH Act and Fraternisation Policies

While fraternisation policies have become increasingly commonplace in organisations, there is no specific legislation that directly regulates the framework of such policies. It is, however, relevant to note that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”), requires every employer to formulate and disseminate an internal policy aimed at the prohibition, prevention, and redressal of sexual harassment at the workplace. The policy formulated under the POSH Act is intended to promote gender-sensitive workspaces and address factors that contribute to a hostile environment against women. It can be argued that a policy restricting fraternisation among employees reinforces the object of the POSH Act by regulating workplace relationships beyond what is specifically set out in the POSH Act.

About the authors: Siddhartha George and Varnika Sharma are Partners, and Satyajit Nair is an Associate at Poovayya & Co.

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