The Supreme Court in a recent Public Interest Litigation (Janaki Chaudhary & Anr vs Women and Child Development & Ors), reviewed a petition regarding the employment terms and conditions of individuals serving on Internal Complaints Committees (ICCs) established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act). The PIL indicated that although ICC members were obligated to adjudicate sexual harassment complaints while employed by the company, their employment could be terminated (with three months’ severance pay) without cause if a ruling contradicted the interests of senior private sector management. Private sector ICC members lack recourse to principles of natural justice and cannot appeal against their dismissal resulting from their decisions in a suitable forum.
Justices Surya Kant and Ujjal Bhuyan issued a notice to the Ministry of Women and Child Development and other relevant parties regarding the PIL which sought to ensure job security and protection from reprisal for members of ICCs established under the POSH Act within private sector organizations.
Counsel Abha Singh, representing the petitioners, highlighted the sensitivity of the matter, submitting that one of the petitioners is an ICC chairperson with first-hand knowledge of the challenges faced by Committee members at private sector workplaces. Lead petitioner Janaki Chaudhry, a former ICC member, and co-petitioner Olga Tellis, a retired journalist, alleged in their PILs, filed by advocate Munawwar Naseem, that women ICC members in the private sector lack the same protections and security of tenure afforded to their public sector counterparts.
The “hire and fire” doctrine is a fundamental aspect of the employer-employee relationship. In the private sector, termination typically results in remedies limited to statutory severance pay, such as three months’ salary. The petition argued that if an ICC member’s actions provoke negative reactions within a private company’s senior management, the company may summarily dismiss them for reasons unrelated to their performance under the Act.
This constitutes a substantial conflict of interest, potentially compromising the objectivity and impartiality of ICC members’ decisions. The PIL also alleged that dissenting from senior management directives may result in retaliatory actions such as unfair dismissal or demotion.
The POSH Act is a significant step towards India’s fight against sexual harassment at workplace. The Act mandates that awareness sessions on sexual harassment and its prevention should be conducted for all the employees. This has definitely helped in increasing awareness about sexual harassment among the workforce, resulting in a number of women fighting for their right to work in a safe workplace. Because of the enactment of the Act, India has also seen several cases of sexual harassment at workplace sparking debates and discussions.
In a case (Aureliano Fernandes vs State of Goa and Others), the Supreme Court observed that even after a decade of the Act being formulated, its implementation and enforcement is still inadequate. To remedy the situation, the top court issued various directions for effective implementation of the POSH Act. For reference, the Act imposes an obligation on all employers, having 10 or more workers to set up an internal committee to look into sexual harassment complaints. It also lays down the procedure for conducting an inquiry into the complaints, among other things.
Through this case, the Supreme Court noticed serious lapses in the enforcement of the POSH Act even after such a long time. The Court observed that however salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless there is strict adherence to the enforcement regime and a proactive approach by all State and non-State actors. Accordingly, in order to “fulfil the promise that the POSH Act holds out to working women all over the country”, the Court inter alia issued the following directions:
The Union of India, the state governments and Union Territories must undertake a time-bound exercise to verify whether all the concerned ministries, departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc., have constituted LCs (local committees)/ICs (internal committees), as the case may be, and that the composition of the said committees are strictly in terms of the provisions of the POSH Act.
Ensure that necessary information regarding the constitution and composition of LCs/ICs, details including e-mail IDs and contact numbers of the designated persons, the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies are made readily available on the website of the concerned authority/functionary/organisation/ institution/body, as the case may be. The information furnished shall also be updated from time to time.
Immediate and effective steps to be taken by the authorities/managements/employers to familiarise members of the LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the report is submitted.
The authorities/management/employers must regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of LCs/ICs and educate women employees and women’s groups about the provisions of the POSH Act, the rules and relevant regulations.
In another such case (The Internal Complaints Committee of Tata Consultancy Services vs Tanuja Priya Bhat), the Bombay High Court held that an employer must provide a safe working environment, free from sexual harassment, and that the employer is responsible for ensuring that the Internal Complaints Committee is constituted and functions effectively.
In Kamaljeet Kaur vs Punjab and Sind Bank, the Delhi High Court held that the employer must ensure that the ICC is constituted and functions effectively, failing which it may be held liable for negligence.
In Poornima Advani vs Union of India, it was held that the POSH Act applies to government organizations, and that the government must ensure that all its offices and workplaces have ICCs in place to address complaints of sexual harassment.
In Vinita Srivastava vs Sahara India Real Estate Corporation Ltd, it was emphasized that there is a need for employers to adopt a zero-tolerance policy towards sexual harassment at the workplace and take effective steps to prevent and address such incidents.
In Apparel Export Promotion Council vs AK Chopra, it was established that employers are liable for sexual harassment by their employees, and that they must take proactive steps to prevent and address sexual harassment in the workplace.
In Anjali Bhardwaj vs Union of India, the case dealt with the issue of sexual harassment of women in government departments and held that all government departments must set up ICCs to address complaints of sexual harassment.
In ICICI Bank vs Vinod Kumar it was held that employers cannot absolve themselves of liability for sexual harassment by claiming that the perpetrator was not an employee of the organization, but a third party or a contractor.
The Supreme Court is actively overseeing the POSH Act’s implementation through ongoing proceedings and recently mandated a nationwide survey to identify organizations lacking ICCs. While the government has established the Sexual Harassment Electronic Box (SHE Box) portal, the Court recently noted that its reach does not yet encompass private organizations and institutions, thereby precluding a complainant from filing a grievance against her employer.
It is clear from the above directions that the Court has largely focused on public institutions, universities, government authorities, etc., and has not made specific reference to private establishments. However, the provisions of the POSH Act apply equally to private establishments. Given that sexual harassment is a topical issue, non-compliance with the POSH Act may also expose companies to reputational risks. Many of the directions of the Supreme Court only reiterate the existing obligations under the law and private employers would accordingly be well advised to undertake a review of the compliances under the POSH Act (in relation to IC constitution, training IC members, sensitising employees, conducting inquiries, etc.) and ensure corrective actions are taken wherever needed.
—By Abhilash Kumar Singh and India Legal Bureau
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