This article is written by Arava Monisha of 3rd semester of Damodaram Sanjivayya National Law University, Visakhapatnam, Andhra Pradesh, an intern under Legal Vidhiya.
ABSTRACT
The enactment of the Prevention of Sexual Harassment of Women at Workplace (POSH) Act in 2013 marked a significant stride toward cultivating a secure and respectful work atmosphere in India. Central to the Act’s enforcement is the Internal Complaints Committee (ICC), an institutional mechanism within organizations designed to address instances of sexual harassment and uphold the tenets outlined in the “POSH Act”. As stipulated by the “POSH Act”, the “ICC” functions as an internal forum entrusted with receive, redressal, and prevention of complaints related to workplace sexual harassment.
This article explores the multifaceted role of the ICC under the POSH Act, shedding light on its composition, functions, and overarching purpose. It examines how the ICC, through proactive measures, contributes to promoting awareness of sexual harassment, cultivating a preventive culture, and ensuring the efficient redressal of complaints. By instituting a fair and confidential process for handling complaints, the ICC plays a pivotal role in safeguarding the rights and dignity of employees, particularly women, aligning seamlessly with the broader objectives of the POSH Act.
Keywords: POSH, ICC, Institutional mechanism, Sexual harassment, Internal forum, Receive, Redressal, Prevention, objectives, Complaints.
INTRODUCTION
The “Prevention of Sexual Harassment at the Workplace Act”, commonly known as the “POSH Act”, is a legal framework in India designed to safeguard employees from sexual harassment in professional settings. A crucial element of the POSH Act involves establishing an Internal Complaints Committee (ICC) within organizations. This article will delve into the role and composition of the Internal Committee, elucidating its purpose and the individuals who constitute its membership.
Instances of workplace Sexual Harassment have unfortunately become commonplace in the contemporary society. Regularly, we encounter reports of new cases highlighting the prevalence of this heightened form of violence in daily work routines, stripping women of the basic Fundamental right to live free from such harm and a secure means of livelihood. It is crucial to form a specialized committee tasked with the principal duty of tackling and resolving matters concerning workplace sexual harassment. This committee should be easily accessible to all employees, providing a structured mechanism for addressing concerns and fostering a safe and respectful work environment.[1]
Through an analysis of the legal structure and the proactive initiatives implemented by organizations, we highlight the pivotal function of the Internal Complaints Committee (ICC) in shaping a workplace culture that prioritizes principles such as equality, dignity, and a steadfast commitment to eradicating sexual harassment.
THE GENESIS OF LEGISLATION ADDRESSING SEXUAL HARASSMENT
The enactment of “Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013”, popularly referred as “POSH Act”, aimed to establish a comprehensive legal framework ensuring a safe and supportive environment, devoid of sexual harassment for all women. This legal framework addressed a gap that had been addressed to some extent by the court of law in the matter of “Vishaka and Others v. State of Rajasthan”.[2] In the pivotal public interest litigation “The Supreme Court of India” issued a set of directives, commonly referred to as the “Vishaka Guidelines”, to tackle workplace sexual harassment, later integrated into the “POSH Act”. In 1997, the Supreme Court issued a groundbreaking judgment outlining directives for organizations to handle complaints related to sexual harassment.[3]
The “Vishaka Guidelines,” established in “Vishaka and others v. State of Rajasthan”, mandated guidelines for addressing workplace sexual harassment until specific legislation was enacted. The court emphasized the significance of interpreting gender equality and the entitlement to work with human dignity, the court underscored the importance of “International conventions and norms” under constitutional articles. Sexual harassment was defined to “include unwelcome sexually determined behaviour, such as physical contact, advances, requests for sexual favours, sexually coloured remarks, or any unwelcome conduct of a sexual nature”. The court recognized that creating a hostile work environment, even without physical contact, constitutes sexual harassment. The guidelines acknowledged the psychological challenges victims may face in reporting incidents and emphasized the importance of a time-bound treatment of complaints without imposing rigid timelines for reporting. This is particularly relevant considering that reporting harassment, especially after a prolonged period, may require significant courage due to potential psychological stigma and societal pressures. The guidelines prioritize creating a mechanism that encourages timely reporting while acknowledging the complexities victims may encounter in doing so.
“The Supreme Court” underscored the duties of employers and workplace institutions in protecting the privileges, integrity of women at work. India enacted a legislation specifically addressing the prevention of sexual harassment against female employees in the work area. “The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013”, referred as the “Sexual Harassment Act,” commenced on “April 23, 2013”, following its announcement in “the Gazette of India” aligning with the principles established in the Vishaka judgment.[4]
INTERNAL COMPLAINTS COMMITTEE (ICC)
“The Internal Complaints Committee (ICC)” is an obligatory body that every employer must establish within their organization. In cases where the employer oversees branch offices, it is necessary to institute a separate ICC for each branch office to handle matters related to sexual harassment. It is imperative for every company to ensure the existence of a functional ICC; failure to do so can result in penalties for the non-formation of the committee. [5]
Powers and Duties of ICC
The “Internal Complaints Committee (ICC)” plays a crucial role in upholding the objectives outlined in its policy. Its primary functions include implementing policies for preventing sexual harassment, resolving complaints based on policy guidelines, and recommending actions to the employer. Under Section 11(3), the ICC is empowered with the authority similar to a Civil Court:
- It can initiate inquiries into workplace sexual harassment complaints in line with its policy.
- The ICC the power to call upon witnesses and involved parties to appear before the committee.
- The committee can exercise discretion in summoning evidence when deemed necessary.
The responsibilities of the ICC include receiving and initiating inquiries into workplace harassment complaints, submitting findings and recommendations, coordinating with the employer for appropriate action, maintaining strict confidentiality, and submitting annual reports as required by law. The ICC is mandated to promptly address and resolve sexual harassment complaints.[6]
COMPOSITION OF ICC
The ICC primarily consists of four members, with a specific emphasis on ensuring sufficient representation of women in its composition.
Presiding Officer: The “Presiding Officer of the ICC”, who serves as the chairperson, must be a senior-position female employee. The legislative rationale behind this stipulation is to enhance the accessibility of the ICC for women considering filing sexual harassment complaints. The idea is that women would find “a reporting and redressal mechanism” led by a woman more conducive to their comfort and willingness to come forward.
In “Shital Prasad Sharma v. The State of Rajasthan and Others[7],” The High Court of Rajasthan observed that under “the POSH Act”, a Presiding Officer is designated to lead an ICC for a fixed term of three years. The court stressed that premature removal of the Presiding Officer should only occur on grounds specified by law, as discussed later. It highlighted that the legislative intent did not contemplate changing the Presiding Officer on a case-by-case basis, linked to the seniority of the respondent in a specific complaint. Thus, employers should prioritize seniority, as interpreted by courts, when appointing the Presiding Officer, irrespective of the respondent’s designation.
POSH Act allows nomination of a senior female employee from related entities if eligible candidates are unavailable, enhancing flexibility.
External member: The ICC is required to have an external member, someone well-versed in sexual harassment issues or affiliated with a women-centric NGO. The lack of detailed qualifications in the “POSH Act or Rules” leaves the criteria for being ‘familiar with issues related to sexual harassment’ or ‘committed to the cause of women’ open to interpretation. The regulations do not specify any prerequisite experience orqualifications for an external member from an NGO, leaving room for flexibility in their selection.Top of Form
In “Ruchika Singh Chhabra v. Air France India and Ors[8]”, the High Court of Delhi scrutinized the requirements for an external member of an ICC. The court emphasized the importance of ensuring an objective, neutral, and employer-free inquiry mechanism for complainants. It stressed the necessity for external members to meet the qualifications specified in the POSH Act to administer justice in sexual harassment cases. In this specific case, the appointed external member lacked affiliation with an NGO committed to women’s causes and couldn’t demonstrate prior experience in handling sexual harassment cases. Although possessing legal expertise in labour matters, the High Court determined that such a legal background was adequate for a Local Complaints Committee but insufficient for serving as an external member of an ICC.[9]
Employee Members: The ICC should consist of two or more employee members, ideally with legal expertise or experience in social workTop of Form or a commitment to women’s causes. Although desirable attributes for employee members, these qualifications are not mandatory, easing compliance for employers as finding qualified employees may be challenging. The “POSH Act and POSH Rules” place responsibility on employers to conduct regular orientation programs and training workshops to fill knowledge gaps among ICC members, ensuring their capability to fulfil their duties.
In addition to specific criteria for each member category, “The POSH Act” requires that a minimum of half of the ICC should be female members. Although the Act specifies a minimum of four members (Presiding Officer, external member, and at least two employee members), it is recommended, for practical purposes, to have three or an odd number of employee members. This precaution helps prevent a scenario where the committee reaches a tie in its findings after an inquiry into the charges presented.
Disqualification of the Members: “Section 2(5) ofthe POSH Act” outlines specific grounds for disqualification from ICC membership:
- Disclosure of confidential information under “The POSH Act”, such as details about the complaint, identities of the parties, inquiry proceedings, and ICC recommendations.
- Conviction or pending inquiry for any offense under the law.
- Finding of guilt or pending inquiry in disciplinary proceedings.
- Abuse of position leading to ICC membership being detrimental to public interest.[10]
REDRESSAL PROCESS
Conciliation
Prior to commencing an inquiry, the Internal Complaints Committee (ICC) has the option, at the written request of the Complainant, to seek resolution between the Complainant and the and Respondent through conciliation. Monetary settlements are not the basis for such conciliation. If a settlement is reached, the ICC records and forwards it to the Company for specified action. Copies of the documented settlement are furnished to both the Complainant and the Respondent in the event of a successful conciliation, no further inquiry by the ICC is required. If the Complainant believes the terms aren’t complied with or no action is taken, a written complaint to the ICC can prompt an inquiry.
Inquiry
If a settlement isn’t possible or is unsuccessful, the “Internal Complaints Committee (ICC)” is required to initiate an inquiry into the complaint.
- An inquiry may be initiated if the aggrieved person informs the ICC that the settlement terms haven’t been complied with by the respondent.
- Within a period of 7 working days from the complaint’s receipt, the ICC sends a copy to the respondent, requesting a response.
- The Respondent is required to submit a reply within 10 working days, including supporting documents, names, and addresses of witnesses.
- Neither the respondent nor the claimant is allowed “legal representation” during the proceedings.
- The ICC schedules a hearing, following principles of natural justice. If a party misses three consecutive hearings without cause, The ICC has the authority to conclude the inquiry or render a unilateral decision, preceded by a 15-day notice.
- The ICC is required to conclude the inquiry process within “90 days” from the date of receiving the issue.
- Within 10 days of completing the inquiry, the ICC issues a report containing its findings and recommendations to the concerned authorities, complainants, and respondents.
Interim Remedy
As per the “Internal Complaints Committee (ICC) Policy”, if the complainant makes a written request during the inquiry, the ICC may suggest to the employer:
- Transferring the aggrieved or the respondent to another workplace.
- Granting the aggrieved individual leave for up to 3 months, in addition to entitled leave.
- Providing any other deemed appropriate relief to the aggrieved.
- Prohibiting the respondent from disclosing information about the complainant’s performance.[11]
Compensation
The ICC Policy mandates that compensation should consider:
- “Mental stress, pain, suffering, and emotional distress” experienced by the aggrieved employee.
- Diminished employment prospects resulting from the occurrence of sexual harassment.
- The financial earnings and social standing of the accused wrongdoer.
- Due to the harassment the victim might go through heavy expenses for physical/psychiatric treatment.
- The income and privilege of the accused party.
- Feasibility of making payment as a lump sum or in instalments.[12]
CONCLUSION
In Conclusion, the Internal Complaints Committee (ICC) stands as a crucial force in fostering a workplace that’s secure and free from harassment. It’s empowered by the law to not only prevent sexual harassment through policy implementation but also to fairly resolve complaints and suggest actions to employers. With quasi-judicial authority, ICC conducts inquiries, ensuring a fair process and adhering to principles of natural justice. The committee, importantly, can offer interim relief during inquiries and determine compensation based on factors like emotional distress, career impact, medical expenses, and the alleged perpetrator’s status. Ultimately, the ICC plays a pivotal role in creating a workplace culture that champions transparency, accountability, and empathy, prioritizing the well-being and dignity of every individual.
REFERENCES
- Muds.co.in, https://muds.co.in//internal-complaints-committee-members-training-certification/ (Accessed: 04 December).
- Roy, A. (2019) Constitution of ICC under the POSH Act – discrimination, Disability & Sexual Harassment – India https://www.mondaq.com/india/discrimination-disability-sexual-harassment/776002/constitution-of-icc-under-the-posh-act (Accessed: 04 December 2023).
- Wikipedia, https://en.wikipedia.org/wiki/Vishaka_and_others_v_State_of_Rajasthan (Accessed: 03 December 2023).Top of Form
[1] Muds.co.in, https://muds.co.in//internal-complaints-committee-members-training-certification/ (Accessed: 03 December 2023).
[2] Vishaka and Others v. State of Rajasthan, (1997 (7) SCC 323).
[3] Mondaq.com, https://www.mondaq.com/india/discrimination-disability-sexual-harassment/776002/constitution-of-icc-under-the-posh-act (Accessed: 03 December 2023).
[4] Wikipedia, https://en.wikipedia.org/wiki/Vishaka_and_others_v_State_of_Rajasthan (Accessed: 03 December 2023).
[5] Muds.co.in, https://muds.co.in//internal-complaints-committee-members-training-certification/ (Accessed: 03 December 2023).
[6] Muds.co.in, https://muds.co.in//internal-complaints-committee-members-training-certification/ (Accessed: 03 December).
[7] Shital Prasad Sharma v. The State of Rajasthan and Others, (2018 Lab IC 1859).
[8] Ruchika Singh Chhabra v. Air France India and Ors , (2018 LLR 697).
[9] Mondaq.com, https://www.mondaq.com/india/discrimination-disability-sexual-harassment/776002/constitution-of-icc-under-the-posh-act (Accessed: 04 December 2023).
[10] Mondaq.com, https://www.mondaq.com/india/discrimination-disability-sexual-harassment/776002/constitution-of-icc-under-the-posh-act (Accessed: 04 December 2023).
[11] Muds.co.in, https://muds.co.in//internal-complaints-committee-members-training-certification/ (Accessed: 03 December).
[12] Muds.co.in, https://muds.co.in//internal-complaints-committee-members-training-certification/ (Accessed: 04 December).
Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.
