1. INTRODUCTION
Over the past few years, there has been an extensive transformation in the role of women in India due to traditional responsibilities that placed all household chores and income generation on women’s shoulders until now.
The person who believes that a woman is capable of protecting herself in any situation misses the worst fact that more than 50% of women still face Violence at the Workplace to date, which means they are denied their rights. To protect these women, the government intervened into many parts of this country where safe working conditions for females were created. This act became effective from 1997 when it was signed into law after others like guidelines on prevention against harassment on women by the Vishakha case had set the tone.
This resulted into the Sexual Harassment of Women at Workplace (Prevention, Prohibition) Act, 2013 (POSH Act, 2013) which came into effect on December 9th, 2013 covers all employers and every workplace. It is binding legally and ensures protection to women. Their basic rights are violated by Articles 14 and 15 which guarantee equality and Article 21(3), which guarantees the right to dignity.
This act was needed of an hour to eliminate the harassment faced by women at the workplace.
Under Section 4 of this act, “the employer must form and internal complaint committee (ICC) at all work places with 10 or more employees and this is an obligation that must be fulfilled by any public and private organisations.”
Keywords: Sexual Harassment again Women, Section 4 of POSH Act, Articles 14 and 21(3) of Constitution of India , Right to Equality, Vishakha case Guidelines.
MEANING, DEFINITION AND EXPLANATION OF TERMS
The term Sexual harassment includes “any one or more of the following unusual acts or behaviour (whether done directly or by implication) namely:—
Physical contact and advances; or
A demand or request for sexual favours; or
Making sexually coloured remarks; or
Showing pornography; or
Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.”
The following circumstances may also amount to sexual harassment:—
“Implied or explicit promise of preferential treatment in her employment; or
Implied or explicit threat of detrimental treatment in her employment; or
Implied or explicit threat about her present or future employment status; or
Humiliating treatment likely to affect her health or safety.”
POSH Act was enacted which includes all public as well as private sectors to have ICC to protect the women in workplace against the sexual harassment,
The objectives of POSH Act can be ensured:
• By forming an internal complaint committee
• By providing periodic POSH training on sexual harassment law as well as,
• By developing an effective Complaint mechanism and redressal policy.
The Internal Complaint Committee (ICC) is formed to make relevant implications of the policies which are related to the prevention of sexual harassment and to solve the complaints made by the aggrieved party as well as to provide redressal to the employee and recommend actions to be taken by the employer to ensure the safety of the employee.
The Internal Complaint Committee consists of 4 members consisting of at least two women members and one member working in any association or organization that works in women-specific area.
ROLE AND DUTIES OF ICC under the POSH Act
The ICC plays a vital role in the effective implementation of the provisions at the workplace.
Role of the Internal Complaint Committee are:-
• Receive the Complaints: This committee receives complaints and ensures the aggrieved party against sexual harassment. It ensures that this process is confidential and easily accessible by encouraging the women to make complaints without hesitation.
• Initiating Enquiry: After receiving the complaint, the role of ICC is to conduct enquiry and proper investigation. This investigation includes collecting evidence, interviewing the complainant and accused, collecting witnesses and submitting all the findings for further recommendations.
• Recommendations: The ICC prepare a report addressing all its findings and recommendations regarding the matter and direct the employer to take necessary required actions once the investigation is done and recommend disciplinary majors against accused.
• Promoting awareness regarding ICC: The important role of ICC is promoting awareness regarding the rights of the workers and the procedure to file a complaint regarding any issue related to sexual harassment at the workplace. This can be done by way of having workshops, posters, documents, notices etc.
• Annual Report: The annual report is provided to the management by the ICC who summarises the complaints made by the victim and takes investigation of the case. They present the company’s recommendations for improving the workplace culture to work in the workplace.
The roles of the Internal Complaint Committee are:-
• Receive the Complaints: This committee receives complaints and ensures the aggrieved party against sexual harassment. It ensures that this process is confidential and easily accessible by encouraging the women to make complaints without hesitation.
• Initiating Enquiry: After receiving the complaint, the role of ICC is to conduct enquiry and proper investigation. This investigation includes collecting evidence, interviewing the complainant and accused, collecting witnesses and submitting all the findings for further recommendations.
• Recommendations: The ICC prepare a report addressing all its findings and recommendations regarding the matter and directs the employer
to take necessary required actions once the investigation is done and recommend disciplinary majors against the accused.
• Promoting awareness regarding ICC: The important role of ICC is promoting awareness regarding the rights of the workers and the procedure to file a complaint regarding any issue related to sexual harassment at the workplace. This can be done by way of having workshops, posters, documents, notices etc.
• Annual Report: The annual report is provided to the management by the ICC who summarises the complaints made by the victim and takes investigation of the case. They present the company’s recommendations for improving the workplace culture to work at their workplace.
PROCEDURE FOR FILING A COMPLAINT
The procedures which are followed by the ICC are designed to ensure a fair and transparent process:
1. Filing a Complaint:
According to the POSH Act, the complaint should ideally be required to be filed within 90 days from the day of the incident.
The basic right of the employee is to complain to the ICC of the workplace against any kind of harassment faced by them inside the work premises and provide the details about the nature of harassment as well as any required evidence to prove their innocence and to support their complaint.
2. Acknowledgment of the Complaint:
– After receiving such a complaint by the worker, the ICC acknowledges it by writing it to the complainant. The ICC needs to forward a copy of the complaint to the respondent within 7 working days of receiving it. The respondent must provide a response to the complaint.
3. Preliminary Assessment
Can the ICC do a preliminary assessment in order to establish whether the complaint falls within the purview of the POSH Act or not? If it does not, then she is informed and could be guided on other options of seeking redress.
4. Conducting the Inquiry
It entails:
Collecting evidence: Information obtained that is relevant and related to this complaint such as documents, emails, messages, etc.
Interviewing parties: The complainant, respondent and any witnesses are interviewed by the committee to obtain comprehensive evidence.
The enquiry has to be completed between 90 days from the date on which the complaint was made by the worker.
5. Final Report
After the conclusion of the inquiry, an ICC report is written which includes findings and recommendations that should be clear, objective and based on evidence gathered within 10 days from its completion date as contemplated under Section 17(7) of ICC guidelines and accessible to both parties.
6. Action on Recommendations
When a complaint is found valid by the ICC, it makes suitable disciplinary recommendations.
ICC recommends punitive measures like warnings, suspension or dismissal depending on how severe it is.
7. Follow-Up:
– The ICC can conduct follow-up meetings with the complainant and the employer to ensure that there are no further issues and that the workplace remains free from sexual harassment. The Principal shall act upon the recommendation within 60 days of receiving it.
On the recommendation of ICC during the procedure of inquiry, the employer may provide interim relief to the victim woman as per request and can transfer the woman to any other workplace or grant her leave for not more than 3 months.
RELEVANT CASES
1.) Vishaka and Others v. State of Rajasthan (1997):
This case was the landmark judgement which led to the formation of the POSH Act
Background:
This case arose from a brutal gang rape of a social worker named Bhanwari Devi in a village in Rajasthan. In order to stop child marriage as a part of her duty as a worker under the Women Development Programme was targeted for rape.
Issues:
1. Whether there is an adequate legislative framework to address the issue regarding the sexual harassment of the women in the workplace?
2. Whether Articles 14, 19 and 21 of The Constitution of India are understood in the manner for effective enforcement of gender equality and protection of women’s rights against sexual harassment?
Judgment:
Supreme Court has laid down comprehensive guidelines addressing this issue which is also known as Vishakha guidelines until the proper legislation came into force after recognizing the gap between existing laws and changes required with respect to workplace sexual harassment. These guidelines included:
VISHAKHA GUIDELINES
1. Sexual Harassment Defined: It refers to “any physical contact or advances which is unwelcomed sexually determined behaviour (whether directly or by implication), a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.”
2. Preventive Steps: All employers or persons in charge must take appropriate steps to ensure that the workplace is free from sexual harassment such as expressing prohibitions through relevant means, creating a safe environment for employees and sensitizing female workers about their entitlements.
3. Establishment of an internal complaints committee at all the workplaces for protection of women and this committee should be headed by a woman and not less than half of its members should be women. Additionally, it should involve a third party, either an NGO or another body familiar with the issue of sexual harassment, to prevent undue pressure on the complainant.
4. Disciplinary Actions: In case of any conduct which amounts to misconduct in employment, the employer should take appropriate disciplinary action according to the service rules. During the process of enquiry, the witness or complainer should not face any victimisation or discrimination by any of the members.
5. Complaints Mechanism: All women who earn regular salaries come under the purview of these guidelines and four all workplaces must provide an appropriate complaint mechanism having a complaints committee and other support services to the women workers. The confidentiality of particular concerns must be maintained and the procedure of complaints must be time-bound.
Impact:
These guidelines are considered as interim measures until the enactment of the POSH Act in 2013, as it provided a complete legislative framework addressing the protection against sexual harassment in the workplace.
1.) Usha Padmini v State of Karnataka and Others
Usha Padmini v. State of Karnataka and Others is a significant case in India regarding the issue of sexism in the workplace.
Usha Padmini, a woman employee of the Karnataka State Road Transport Corporation, complained about harassment against the officer, but the complaint was initially cleared by the ICC and had nothing to do with sexual harassment. She was forced to quit her job.
After being released by the ICC, Padmini filed a petition in the Karnataka High Court, filing a lawsuit against the ICC and the employer on the grounds that women were not provided with safety and security at the workplace. In the present case, the Supreme Court, after hearing both parties, said that the Internal Complaints Committee did not follow the procedure laid down in the Vishaka guidelines and other employers did not take necessary steps to prevent bullying and provide a safe environment for employees. It provides guidelines for employers to follow while handling complaints of harassment, such as creating internal teams to address these issues and providing counselling services to victims.
2.) K. Hema Latha v. State of Tamil Nadu and Others (2018 LLR 447)
According to this case, the ICC of a school are only the members of the governing body of the school. The Madras High Court here refused to accept the notice of the ICC on the grounds that the ICC had not complied with the POSH Act. He therefore asked the union to constitute an ICC in accordance with the provisions of the POSH Act at the appointed time, address the complaint and send a report to the employer after hearing the views of all participants. The person or persons involved in the establishment of the International Criminal Court will be investigated by the Commission.
CONCLUSION AND COMMENTS
The Government authorities have consistently addressed the issue regarding sexual harassment in the workplace. After the formation of Vishakha guidelines, this POSH Act was enacted and the Internal Complaint Committee was established under this act and was made compulsory in all workplaces. The role and functions of this committee ensure to provide grievances to the women workers and address all serious issues related to Sexual Harassment in the workplace comfortably. It provides assistance to the aggrieved person to fight for their fundamental Rights and a limited time period is stipulated to carry out the inquiry procedure and resolve the issue so that it can’t last longer and doesn’t compromise the rights of the victim.
According to me, the objectives of this committee are to ensure the prevention, prohibition and redressal of the issue of sexual harassment by protecting the rights of women to work with dignity in a comfortable environment.
REFERENCES
Books/Acts
1. The Constitution of India
2. The Prevention of Sexual Harassment (POSH) Act,2013
Online Articles/ Sources Referred
1. Indian kanoon
2. https://muds.co.in/internal-complaints-committee-members-training-certification/#:~:text=As%20per%20the%20POSH%20Act,administer%20complaints%20on%20sexual%20harassment
3. https://blog.ipleaders.in/all-about-the-internal-complaints-committee-icc/
Statutes Referred
1. Article 14 of the Constitution of India, 1950
2. Article 21(3) of the Constitution of India, 1950
3. Section 4 of the POSH Act, 2013
