The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act), was introduced to create safer and more equitable workplaces, mandating the establishment of Internal Complaints Committees (ICCs) to address sexual harassment complaints. The effectiveness of these committees depends heavily on the impartiality and objectivity of their members, as even a perceived bias can undermine trust in the process.
To uphold fairness and transparency, ICC members must formally commit to neutrality and confidentiality. Requiring them to sign a declaration before starting an investigation is a critical step in ensuring accountability, safeguarding the process, and building employee confidence in the system.
Landmark Case: Rashi vs. Union of India and Anr.
A pivotal case highlighting the importance of impartiality is Rashi vs. Union of India and Anr. This case revolved around ensuring fairness while handling sexual harassment complaints against high-ranking officials.
In this case, the petitioner, a contractual employee, alleged sexual harassment by a senior government official. The central question raised in court was: Can a committee comprising members from the same department as the accused official conduct a fair and unbiased investigation?
The court, in its judgment, laid down safeguards to ensure impartial and just investigation procedures:
Complete neutrality in proceedings: The court mandated that "Complete neutrality has to be observed in the proceedings," emphasising the need to conduct the inquiry without any preconceptions or favouring either party.
Objectivity in proceedings: The court stipulated that "Objectivity needs to be maintained in the conduct of the proceedings." This stresses the necessity for a fact-based investigation, where evidence is evaluated impartially and decisions are based solely on merit.
Inclusion of independent members: The judgment stressed the importance of having "Independent members... on the ICC to aid, advise, and assist the ICC in a fair and impartial manner." These individuals, often from external organisations, provide a crucial perspective, ensuring a balanced approach.
Protection from undue influence: The judgment also stated that there should be "no undue pressure and influence on the ICC from senior levels." This is particularly important in cases involving high-ranking officials, as their position of authority could potentially influence the proceedings.
Clear and precise procedures: The court mandated that the ICC follow "a clear and precise procedure to deal with sexual harassment complaints," ensuring consistency, transparency, and fairness in handling complaints.
For instance, if a person who holds a senior position in the organisation is being accused of harassment, any employee who reports directly to that person should not be included in the ICC. Their proximity to the accused could lead to concerns about favouritism or pressure during the investigation.
Importance of Declarations in POSH Investigations
To address concerns about bias and conflicts of interest, ICC members should sign a declaration before commencing investigations. This serves as a vital step in ensuring the integrity and fairness of the entire process.
Conflict of Interest Assessment: The declaration requires each member to assess potential conflicts arising from personal or professional relationships with the complainant, respondent, or witnesses. This may include prior interactions, supervisory roles, or pre-existing biases that could influence judgement. By signing the declaration, members acknowledge these possibilities and affirm their commitment to neutrality and objectivity.
Commitment to Confidentiality: The declaration includes a commitment to maintaining strict confidentiality regarding case-related information. This ensures the privacy of all involved parties and fosters an environment conducive to open and honest communication during the investigation.
Transparency and Accountability: A signed declaration also strengthens transparency and accountability, reassuring employees that investigations will be conducted impartially. It demonstrates the ICC’s commitment to fairness and serves as evidence in the event of legal challenges, confirming the integrity of the process.
Sample Declaration
"I, [Name of ICC Member], hereby declare that I have no personal or professional relationship with the complainant, the respondent, or any witnesses in this case that could potentially influence my judgement. I understand the importance of maintaining confidentiality throughout the investigation process and agree to uphold the principles of natural justice."
The specific content of the declaration can be tailored to meet an organisation’s unique requirements and policies.
Conclusion
It is essential for all organizations to mandate a signed declaration from each ICC member as a foundational step to prevent potential legal challenges in court. Incorporating this requirement into the initial checklist for ICC formation ensures that it becomes an integral part of the process and avoids any oversight. A properly drafted declaration is crucial to ensure clarity and comprehensiveness, with all necessary disclosures regarding potential conflicts of interest, including but not limited to personal relationships, professional affiliations, and any prior involvement in related matters. By making it a mandatory step, organizations can ensure transparency, fairness, and accountability in the handling of sexual harassment complaints.
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