Need Safeguards For Members Of Internal Complaint Committees; PIL Before Bombay HC Seeks Changes To The POSH Act

Petitioners contend that they have encountered 'various deficiencies' in functioning of the said act which defeat its stated objectives. The Act was passed with the intention to "provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith".

The said Act defines the offence of the sexual harassment in broad terms and provides for the mandatory constitution of Internal Complaints Committees by Companies and Local Complaints Committees by the State. These Committees are bestowed with the power of civil courts, and are under obligation under the law to conduct a free and fair inquiry into the alleged incident and give an impartial recommendation to the employer.

However, the petitioners argue that -

"Members of such committees, who are akin to judges have not been provided with any safeguards, which will enable them to act without fear and favour. Thus, an anomalous situation has arisen where ICC members have been conferred quasi-judicial powers without the requisite independence and safeguards. This creates a highly unjust and iniquitous situation for ICC members as well as the parties to the case. This acts as a barrier to holistically address the issue of sexual harassment".

Moreover, the petitioners further submit that the Members of the Internal Complaints Committees (ICC) are tasked with the statutory duty of adjudicating sexual harassment complaints while being on the payroll of the company and can be terminated with 3 months pay as there is no legal obligation on the private sector to follow the principles of natural justice.

"This creates a serious conflict of interest and constrains ICC members from taking free, fair and impartial decisions. Further, if they take a decision that goes against the will of the senior management, they are susceptible to victimisation and targeting", the petition states.

According to the petitioners, such issues act as barriers in addressing the serious issue of sexual harassment and are antithetical to the orders of the Supreme Court in Vishaka vs. State of Rajasthan.

Petitioners have pointed out how the Justice Verma Committee Report of 2013 also critiqued the Bill on similar grounds while recommending the setting up of an Employment Tribunal. The said report states-

"It is our apprehension that the in-house dealing of all grievances would dissuade women from filing complaints and may promote a culture of suppression of legitimate complaints in order to avoid the concerned establishment falling into disrepute. Consequently the setting up of a Tribunal as proposed herein would obviate the need for both the Internal Complaints Committee as well as the Local Complaints Committee as envisaged under the present Sexual Harassment Bill."

Finally, the PIL states-

"Thus, the present law as it stands leaves room for arm twisting of ICC members by the senior management of the company in the form of arbitrary transfers, termination, victimisation in unrelated areas of work etc. This risk of this form of retribution is more likely in cases where the respondent is a senior official with considerable influence in the Company. This conflict of interest, where the ICC members are on the payroll of the company and may have to take decisions against their seniors, creates a precarious situation for ICC Members as well as for women members at the workplace."

Thus, petitioners have prayed for the High Court to declare that the service conditions of ICC members are protected by the principles of natural justice and pass guidelines. Also, petitioners have sought guidelines to be framed by the High Court in order to ensure safeguards for POSH officers.