The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("PoSH Act"), was enacted to provide a safe and dignified work environment for individuals, particularly women. One of the primary purposes of this legislation is to mandate the constitution of the Internal Complaints Committee (ICC) for effective grievance redressal. Recognising the sensitive and urgent nature of sexual harassment complaints, the legislature aims for these issues to receive quick and effective resolution.
To fulfil this objective, the ICC is vested with quasi-judicial powers, underscoring its critical role in handling complaints. Under Section 11(3) of the PoSH Act, the ICC has the same powers as a civil court, enabling it to:
Conduct inquiries into allegations of sexual harassment.
Summon witnesses and parties to record statements.
Request, examine, and analyse evidence.
This authority equips the ICC to investigate and resolve complaints with fairness and transparency. However, for the ICC to function effectively and justly, its members must be trained to deal with such sensitive issues and adhere to certain safeguards to uphold the credibility and procedural integrity of the ICC. For a deeper understanding of ICC's role and responsibilities, refer to this comprehensive article.
Key Safeguards for ICC Members
Outlined below are 5 critical checkpoints that every ICC member should consider before initiating an inquiry.
Identity of the Complainant and Respondent
The first and foremost requirement in any sexual harassment investigation is the clear identification of the complainant and the respondent. The complaint must explicitly specify their names and roles within the workplace or organisational framework. This clarity ensures that the ICC can accurately address the grievance and take the necessary steps toward redressal. Additionally, understanding the relationship between the complainant and the respondent is essential for determining interim relief measures. For example:
If the respondent is in a position of authority over the complainant, interim measures such as temporarily altering reporting structures or granting leave to the complainant may be warranted.
If the respondent is a client or someone external to the organisation, the matter may need to be referred to the client’s ICC for appropriate action.
Without this foundational clarity, the ICC cannot proceed with an inquiry effectively. Ambiguity in the identities of the parties involved may lead to procedural delays, miscommunication, or improper handling of the complaint.
2. Alignment of Allegations with the Definition of Sexual Harassment
For the ICC to take cognisance of a complaint, the allegations must explicitly fall within the scope of "sexual harassment" as defined under the Prevention of Sexual Harassment (PoSH) Act, 2013. Section 2(n) of the Act defines sexual harassment to include unwelcome acts or behaviour of a sexual nature, such as:
Physical contact or advances.
Demand or request for sexual favours.
Making sexually coloured remarks.
Showing pornography.
Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
The ICC must carefully evaluate the complaint to determine whether the alleged actions align with this definition. For instance, a disagreement over work performance or differences in opinions between colleagues, while unprofessional, would not constitute sexual harassment unless accompanied by unwelcome sexual conduct. By ensuring that the allegations align with the PoSH Act's definition, the ICC safeguards its focus and ensures that it functions within its legal framework. This step also maintains the integrity of the redressal process and ensures that the committee’s time and resources are directed toward genuine cases of sexual harassment.
3. Verification of Incident’s Workplace Context
ICC members must confirm whether the incident occurred in a "workplace" context. The workplace includes not just office premises but also extended work environments such as:
Residences provided or managed by the employer.
Virtual workspaces like video-conferencing settings.
The Delhi High Court in the case of Saurabh Kumar Mallick v. CAG of India laid down factors to consider while interpreting "workplace," including proximity to the workplace, management control, and whether the location is an extension of the workplace. The court further noted that even if an officer operates from their residence, incidents occurring there involving workplace staff could still constitute workplace sexual harassment.
4. Timely Filing of the Complaint
Under the PoSH Act, complaints of sexual harassment must be filed within three months of the alleged incident. This time limit ensures that cases are addressed promptly while the details and evidence remain fresh. However, the law also recognises that there may be genuine reasons for delays, such as:
The complainant needing time to process the emotional impact of the incident.
Fear of retaliation or stigma preventing immediate reporting.
In such cases, the ICC has the discretion to extend the timeline if the complainant provides reasonable justification for the delay.
5. Impartiality of ICC Members
To maintain credibility, ICC members must not have any conflict of interest or direct involvement in the matter. The Delhi High Court in Rashi v. Union of India and Another emphasised the following:
ICC members must be impartial, with no personal interest in the case.
They should not serve as witnesses or have any connection to the complainant or respondent.
Members should possess unblemished credentials and demonstrate integrity.
For example, if a supervisor is implicated as a respondent or is closely associated with the parties involved, they must recuse themselves to ensure neutrality. To further uphold impartiality, ICC members should sign a declaration of impartiality before initiating any investigation. For more details, refer to our article: Why ICC Members Must Sign Declarations Before PoSH Investigations.
Conclusion
By diligently following these checkpoints, ICC members can ensure that investigations are conducted fairly, efficiently, and with due regard to the rights of all parties involved. This not only upholds the spirit of the POSH Act but also contributes to a workplace where individuals feel safe, respected, and empowered.
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