Sexual Harassment At Workplace | Supreme Court Issues Notice On PIL Seeking Security Of Tenure & Protection For ICC Members In Private Workspaces

The Supreme Court today issued notice in a public interest litigation seeking security of tenure and protection from retaliation for members of Internal Complaints Committees [constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013] in private workplaces.

A bench of Justices Surya Kant and Ujjal Bhuyan passed the order, seeking response of the Ministry of Women and Child Development, Ministry of Corporate Affairs and National Commission for Women.

Advocate Abha Singh appeared and argued for the petitioners, pointing out that the issue involved is sensitive. She further informed that one of the petitioners was herself an ICC Chairperson and had first-hand experience of challenges faced by ICC members in private workplaces.

Briefly put, the PIL is filed by Janaki Chaudhry (former member of ICC committee) and Olga Tellis (retired journalist), claiming that women members of ICC in the private sector are not entitled to the same level of protection and security of tenure that ICC members of public sector enjoy.

It is stated that as ICC members are tasked with the duty to adjudicate sexual harassment complaints while being on the payroll of a company, they can be terminated from service (with upto 3 months' pay) without giving any reason, if a decision that goes against will of the senior management is taken.

"This creates a serious conflict of interest and constraints for the ICC members from taking free, fair and impartial decisions...if they take a decision that goes against the will of the senior management, they are susceptible to victimization and retaliation, such as unfair termination and demotion."

The petition mentions that PILs seeking similar reliefs were filed before the Bombay High Court and the Supreme Court. While the one before the Bombay High Court was withdrawn (as the High Court felt that it did not possess jurisdiction to grant the reliefs), the one before the Supreme Court was disposed of with an observation that the petitioner's petition be treated as a representation to the respondent-authorities.

As per the petitioners, after the said order was passed in the earlier PIL, they made all endeavors to draw the attention of the Ministry of Women and Child Development towards the lacuna in the 2013 Act and the urgency of the situation. However, the Ministry took no steps.

It is further the petitioners' argument that private sector ICC members have no recourse to the principles of natural justice, nor can they challenge their dismissal (on account of decisions taken) in an appropriate forum.

"The 'hire and fire' rule forms part of the basic tenets of the 'Master-Servant' relationship. In the private sector, if an employee has been terminated from their service, they have no remedy other than the right to claim three months' salary or severance, as the case may be...if the actions of an ICC member ruffle feathers in the upper echelons of a private company, the company can choose to simpliciter terminate them on extraneous grounds, which may have no relation to the performance of her duties under SHWW Act."

The petitioners have also suggested in their petition certain guidelines that may be given effect to.

Grounds raised

The petitioners have raised grounds including inter-alia:

(i) ICC members should be treated as a person dispensing power of a Judge, while performing their duties under the 2013 Act;

(ii) Unlike their public sector counterparts, private sector ICC members can be terminated on the whim of employer. Private sector ICC members are more vulnerable and there is no rational nexus between creating differential standards for public and private sector ICC members and achieving the Act's objective of creating safe workspaces [Article 14 violation];

(iii) Risk of retribution against ICC members in the form of transfers, termination, victimization in unrelated areas of work defeats objectives of the 2013 Act, particularly when ICC members are called on to take decisions against seniors, while being on the payroll of the company;

(iv) Even though ICC members are dispensing same powers of a 'Judge' as defined under CrPC, there is no grievance redressal mechanism established for them;

(v) As a private employee acts as a public functionary while discharging duty under the 2013 Act, he/she should have the same safeguards as provided to public officials (including protection from arbitrary termination);

(vi) Right to a safe work environment is a fundamental right under Article 21. The right to a safe environment extends not only to victims of sexual harassment but also to the officers of the ICC. Apprehension of threats, harassment, falling into disfavors with the management, etc. prevents ICC members from feeling safe in the workplace [Article 19(1)(g) violation].

(vii) In recent times, there have been instances where an imminent need for ICC was felt across several fields (such as in the Wrestling Federation of India). In the future, the responsibilities, onus and challenges of Members of the ICC is only going to multiply.

Reliefs sought

(i) Direction to Ministry of Women and Child Development to (a) protect the service conditions of ICC members so as to secure their independence, (b) to declare that ICC members are public servants and have the same protection as their counterparts in public sector, (c) to declare that the service conditions of ICC members are protected from arbitrary and retaliatory termination, and (d) to direct state governments to setup External Grievance Redressal Committee to address the grievances of ICC members and conduct periodic appraisals of the performance of ICCs;

(ii) Direction for setting up of a Commission to review the deficiencies in the Sexual Harassment of Women at Workplace Act and make expeditious recommendations for the protection of ICC members on two issues : (a) rights of ICC members, particularly in the private sector, and (b) protection from persecution and harassment of ICC members;

(iii) Direction to all private companies/organizations to intimate National Commission for Women and their respective Local Complaints Committee about any adverse action taken against any ICC members;

(iv) Direction to National Commission for Women to routinely supervise the implementation of the SHWW Act and intervene, where required, in cases where the employment of an ICC member is sought to be terminated by the employer during his/her tenure or within 5 years of the end of his/her tenure in case of any adverse order passed against the employer.

Appearance: Advocates Abha Singh and Sanjna Dua; AoR Munawwar Naseem (for petitioners)

Case Title: JANAKI CHAUDHRY AND ANR. Versus MINISTRY OF WOMEN AND CHILD DEVELOPMENT AND ORS., W.P.(C) No. 796/2024

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