COMPOSITION, ELIGIBILITY, AND APPOINTMENT PROCESS OF ICC MEMBERS & IMPORTANCE OF DIVERSITY IN THE COMMITTEE

This article is written by Prajwal Guleria of 8^th Semester of Lovely Professional University, an intern under Legal Vidhiya

Abstract

This article discusses the establishment of Internal Complaints Committees (ICCs) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act. The composition, eligibility, and appointment process of ICC members are crucial to ensuring the committee’s effectiveness. ICCs must consist of a chairperson and at least four other members, including both men and women, who possess the necessary qualifications and experience. Candidates should undergo training on the legal aspects of sexual harassment and investigation procedures. Additionally, the article highlights the importance of diversity within the committee. The presence of diverse members ensures fair and inclusive decision-making processes, fosters a sense of accountability, and discourages suppression or ignorance of complaints. Upholding diversity in the ICC is integral in creating a safe and inclusive work environment for all employees, where everyone feels valued and protected.

Keywords

POSH Act (Prevention of Sexual Harassment Act), ICC (Internal Complaints Committee), Diversity (gender, background, experience), Fairness and impartiality, Cultural sensitivity, Accessibility and trust, Inclusion, Safe workplace, Harassment, India, Legal framework, Workplace culture, Reporting.

Introduction

The Prevention of Sexual Harassment (POSH) Act in India stands as a testament to the country’s commitment to creating safe and respectful workplaces. At the heart of this commitment lies the Internal Complaints Committee (ICC), a body entrusted with upholding these principles and providing a safe haven for those facing harassment. To effectively fulfil this vital role, the ICC’s composition, eligibility, and appointment process must be meticulously designed to ensure diversity, impartiality, and expertise. This article delves into the framework of the ICC, exploring the importance of a diverse committee in fostering a truly inclusive and fair environment for everyone.

The POSH Act, enacted in 2013, established a comprehensive legal framework to combat sexual harassment at work. It mandates the formation of Internal Complaints Committees within organizations to address complaints, conduct inquiries, and recommend appropriate action against perpetrators. In this landscape, the ICC plays a pivotal role in providing a safe space for victims to come forward and seek redressal without fear of reprisal. Its decisions shape the organizational culture and can significantly impact the lives of those affected.

Composition, Eligibility, and Appointment Process of ICC Members

Workplace sexual harassment is a delicate matter that requires consideration, tolerance, and understanding. It’s critical that the complaints are resolved as soon as possible to give every employee a peaceful, harassment-free work environment. Therefore, establishing an IC demonstrates the organization’s significant commitment to women’s safety. Furthermore, failure to comply may result in severe penalties, up to and including the suspension of one’s business licence.

Employers are required by Section 4 of the POSH Act to establish an Internal Complaints Committee (ICC) in each workplace with ten or more workers. Both governmental and private entities are required to uphold this obligation.

This initial in house body makes the most significant contribution to the accomplishment of the POSH Law’s goals and the seamless operation of its provisions.

If a woman is harassed sexually, she must submit a complaint with the ICC. Following receipt of the woman’s complaint, the Committee looks into the situation and offers recommendations in line with its findings.

Members of the Internal Complaints Committee:

1. Presiding Officer: The Presiding Officer is the Internal Committee’s chairperson and must be a female employee in a senior role. This facilitates women’s approaches to the IC with grievances. In the event that a senior female employee is not available to fill the role, the employer may designate a senior employee from any of its other administrative offices or units, or from a different location under its ownership.

In the case of Shital Prasad Sharma v. The State of Rajasthan and Others[1] (2018 Lab IC 1859), the Rajasthan High Court said that the POSH Act stipulates that a Presiding Officer is appointed to chair an ICC for a term of three years and shall not be removed in the meantime, It followed that the Presiding Officer could not have been chosen and replaced on a case-by-case basis based on the seniority of the respondent in any particular complaint, something that the Parliament could not have imagined. The need of seniority, which has been considered by courts to not be related to the designation of the employee about whom the inquiry was being conducted, should thus be taken into consideration by the employer when choosing the Presiding Officer of the ICC.

• Employee members: At least two people must be nominated as IC’s employee members. It is ideal if they have extensive legal knowledge and have experience advocating for women’s safety or social causes. Given that having staff members knowledgeable about the law isn’t always feasible when it comes to women’s safety, it is the employer’s responsibility to regularly train staff members so they have the information and abilities they need to handle complaints. In Ruchika Singh Chhabra v. Air France India and Another[2] the High Court noted that the purpose of the complaints committee method and its fundamental tenet was to guarantee the complainant of an impartial, objective inquiry process that is shielded from potential employer interference. In order to accomplish this goal and fairly handle sexual harassment investigations, it is essential that the individual designated as an external member of an ICC meets the requirements outlined in the POSH Act. In the provided factual context, the external member nominated by the employer to the ICC could not demonstrate his prior experience in handling complaints of sexual harassment, nor was he a member of any non-governmental organisation or association dedicated to the cause of women. Despite arguments to the contrary, the High Court determined that the candidate’s legal background would be adequate to meet the requirements for the appointment of an external member of the Local Complaints Committee but not for an ICC. The candidate was a lawyer with experience in labour affairs.
• External Member: For the sole purpose of the IC’s operation, the organisation shall designate an external member who is connected to it. The candidate should have at least five years of experience as a social worker who addresses sexual harassment in the workplace and works to empower women. One way to do this is to join a non-governmental group or association that promotes the empowerment of women. The individual ought to be knowledgeable about civil, criminal, labour, and service laws. The purpose of adding an external member is to keep IC functioning with objectivity and a third-party viewpoint.

Role of External Members

The purpose of having an external member is to guarantee the impartiality and independence of the IC’s operations, as well as the neutrality and transparency of the inquiry process.

The duties of an External Member in the Internal Committee are listed below.

• Drafting and going over the POSH policy for the company with the other members of the IC.
• Participate in the investigation team that handles sexual harassment complaints in order to maintain objectivity.
• Attend IC meetings on a regular basis to guarantee that the POSH policy is carried out effectively.
• Compile the meeting minutes for any IC-conducted meetings.
• Participate in the Annual Report’s preparation.

Disqualification of Members

An IC member must be replaced after their term of office expires, which is three years from the date of appointment. Nonetheless, an IC member may be dismissed from their role in three years if:

• There is a Disclosure by the individual of information that the POSH Act requires to be kept private, including the identity of the complainant, the respondent, or any witnesses, the specifics of the inquiry process, the ICC’s recommendations, or the employer’s actions.
• The individual has been found guilty of any crime under any law, or if an investigation has been launched against them.
• In the same way, whether the individual has been found guilty or if there is an ongoing investigation concerning them in relation to any disciplinary actions.
• The individual’s continued membership in the ICC would be detrimental to the public interest due to their abuse of power.

If any of the aforementioned conditions are met, the applicable member or members must resign and be replaced by people who meet the requirements for the relevant membership category.

Repercussions of Improper Constitution of ICC

The operation of an ICC is quite difficult and challenging: it is necessary to conduct processes with consideration for the parties’ sensitivities while resolving disputes within allotted time frames. It is in everyone’s best interest that an ICC investigates any complaints submitted quickly and effectively, as the investigation process consumes time and energy from all parties that could be used more effectively to forward the goals of the workplace.

The IC is in charge of impartially investigating allegations of sexual harassment and providing timely, suitable remedy. If the IC is not set up in accordance with POSH law, concerns regarding the legitimacy and impartiality of the decisions may surface. There may also be serious legal repercussions. Therefore, in order to guarantee that there are no grounds later on for contesting the validity of the proceedings conducted, it is imperative from an organization’s perspective that its ICC be constituted validly and strictly in compliance with the POSH Act. This will eliminate the need to initiate the process anew. In certain cases, the court dissolved an IC that wasn’t established in compliance with the Act. The court may even suggest that a newly established IC reinvestigate certain cases. Furthermore, as stated in the Act, noncompliance may result in severe fines such as:

• Up to a Rs. 50,000 fine.
• If the breach is committed again, the penalty is doubled.
• Revocation, cancellation, or non-renewal of a business licence or registration.

The High Court of Madras rejected the report of the Indian Council of Commerce (ICC) that had previously investigated allegations of sexual harassment in K. Hema Latha v. The State of Tamil Nadu and Others[3], a case in which the ICC of an educational institution was made up entirely of members of the institution’s administrative department. The ICC was not constituted in accordance with the POSH Act. As a result, it instructed the institution to quickly establish an ICC that complies with the POSH Act’s criteria. This ICC would then be expected to investigate the complaint and provide a report to the employer following the hearing of all pertinent parties.

Importance of Diversity:

A diverse ICC, encompassing judges from various legal traditions, geographical backgrounds, and genders, is crucial for several reasons:

• A diverse ICC brings different perspectives, experiences, and cultural insights to the table, enabling effective handling of complaints from diverse employees.
• It fosters fair and inclusive decision-making processes and instills confidence in employees that their concerns will be heard and understood.
• A diverse ICC helps address power imbalances within organizations, ensuring individuals from different hierarchies and backgrounds have a say in the committee’s functioning.
• Encourages more employees to come forward with their complaints and discourages attempts to suppress or ignore them.
• Legitimacy: Reflecting the diversity of the international community enhances the Court’s legitimacy and fosters trust in its impartiality. Different perspectives enrich deliberations and ensure rulings take into account diverse legal and cultural contexts.
• Representation: A Court representative of the global community is more likely to understand the realities faced by different regions and cultures when dealing with complex cases. This leads to more sensitive and culturally appropriate judgments.
• Expertise: Different legal backgrounds bring a wealth of experience and knowledge to the Court, strengthening its ability to address intricate legal issues arising from international crimes.
• Ensuring gender balance: While having a female Presiding Officer is mandated, ensuring equal representation of men and women among internal members can provide a broader perspective and address concerns of male victims feeling less comfortable coming forward.
• Sensitivity towards LGBTQ+ members: Training ICC members on LGBTQ+ identities, discrimination, and harassment specific to this community is crucial. Ensuring at least one member has specific expertise in this area can foster trust and inclusivity for LGBTQ+ victims.
• Addressing limitations of the POSH Act: Acknowledging that the Act solely focuses on “sexual harassment” may create barriers for reporting other forms of gender-based violence and harassment experienced by Men and LGBTQ+ individuals. Advocating for amendments to the Act to encompass broader definitions of harassment is essential.

Upholding diversity in the ICC is crucial in fostering an inclusive and safe work environment for all employees, where everyone feels valued, respected, and protected.

Conclusion

A crucial component of the POSH Act is the creation and operation of the Internal Complaints Committee (ICC). The makeup, qualifications, and selection procedure of ICC members are important factors in guaranteeing the legitimacy and efficacy of the committee. Incorporating a varied range of individuals with varying backgrounds, experiences, and viewpoints allows the ICC to offer a thorough and impartial method of handling sexual harassment accusations. Maintaining the committee’s diversity is essential to creating a welcoming and secure work environment where all staff members feel appreciated, respected, and safe.

References

1. https://www.mondaq.com/india/discrimination-disability–sexual-harassment/776002/constitution-of-icc-under-the-posh-act visited on 14-01-2024
2. https://muds.co.in/internal-complaints-committee-members-training-certification/ visited on 16-01-2024
3. https://elearnposh.com/ultimate-posh-guide-for-ic-members/ visited on 17-01-2024

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[1] Shital Prasad Sharma v. The State of Rajasthan and Others, S.B. Civil Writs No. 2313/2018

[2] Ruchika Singh Chhabra v. Air France India and Another, C.M. APPL.16802-03/2018

[3] K. Hema Latha v. The State of Tamil Nadu and Others, W.P. No. 25408 of 2017

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