Sexual harassment at workplaces is a raging problem throughout our country. From educational institutions to actual workplaces, the plague of harassment of women continues unperturbed. However, women can seek some relief in this regard through the Internal Complaints Committee (ICC) formed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, of 2013 (POSH Act). However, to be able to understand the scope and need for this body, there is a need to look at the events leading to its inception.
History Of The Sexual Harassment Of Women Law
The laws against sexual harassment find their inception in the infamous case of Bhanwari Devi. Bhanwari Devi was a social worker who was brutally gang-raped by upper caste men due to her efforts to prevent a child marriage. The incident caused an uproar in the community, and various women groups rallied and filed a writ petition in the Supreme Court to form laws against sexual harassment.
The Supreme Court, at the pinnacle of judicial activism, pronounced the landmark Vishakha judgement as a result, recognising sexual harassment as a human rights violation and laid down guidelines for the same. These guidelines, which came to be known as the Vishakha guidelines, were the first authoritative framework of any kind on this issue. It imposed a kind of ‘judicial legislation’ whereby these guidelines become mandatory for state institutions, as sexual harassment was considered a violation of the Articles 14, 15 and 21 of the Constitution (Fundamental Rights).
Limitation Of The Vishakha Judgement And Need For The POSH Act
According to Article 13 of the Constitution, only a State can be held liable for the violation of Fundamental Rights. The Vishaka Guidelines hence, produced in relation to Fundamental Rights if violated, could only hold the state bodies liable. To be able to apply such laws against private bodies, a legislation needed to be passed. The Vishakha judgement was delivered on August 13, 1997. It was only after 16 years of this case that the Parliament passed the POSH Act in 2013, allowing the law to be applicable to private non-state bodies.
What Is The ICC And How Does It Help You?
The POSH Act demands that an ICC be made at all workplaces for the redressal of sexual harassment cases. Even if offices or administrative units of the workplace are located at different places or are at the divisional or sub-divisional level, the Internal Committee shall be constituted at all the branches. The ICC forms the most important part of this legislation whereby the punishment befitting the harassment is left to this body. In places where the ICC cannot be constituted (if there are less than 10 workers, that is) or where the complaint is against the employer, complaints are taken to ‘local complaint committee’ constituted by the state government. At least, half of the members of an ICC are required to be women.
Who Can Approach The ICC?
Any ‘aggrieved woman’ who has suffered harassment at the workplace can approach the ICC. Such a woman can be an employee, someone visiting a workplace or a student. The Act even incorporates domestic workers employed in households. The law also makes provisions to allow someone else (a legal heir or a person prescribed) to make a complaint on behalf of the woman, if she is unable to do so on account of physical, mental capacity or death.
What Is Sexual Harassment As Per The Act?
It includes any of the following unwelcome behaviour, done either directly or through implication:
- Physical contact and advances.
- A demand or request for sexual favours.
- Making sexually coloured remarks.
- Showing pornography.
- Any other physical, verbal or non-verbal conduct of sexual nature.
The following circumstances, among other circumstances, if they occur or are present in relation to or connected with any act or behaviour of sexual harassment, may amount to sexual harassment:
- An implied or explicit promise of preferential treatment in employment.
- An implied or explicit threat of detrimental treatment in employment.
- An implied or explicit threat about the present or future employment status.
- Interference with work or creating an intimidating or offensive or hostile work environment.
- Humiliating treatment likely to affect the lady employee’s health or safety.
What Constitutes A Workplace?
Both private and government institutions and organisations are covered under the term ‘workplace’ in the Act. The workplace also includes dwelling houses. POSH applies to both the organised and unorganised sectors. It also extends to organisations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and also applies to a dwelling place or a house.
Members Of The ICC
- A woman presiding officer.
- At least two members from amongst the employees (preferably committed to the cause of women or who have had experience in social work or have legal knowledge).
- One member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment
Making A Complaint
A complaint should normally be made within three months of the incident, but the time-period is kept flexible in cases where ICC members feel that such circumstances existed which prevented the filing of the complaint. The complaint has to be in writing, and the ‘aggrieved woman’ can seek the assistance of the ICC for the same. The POSH Act protects the contents of such applications, the identity and address of the aggrieved woman, respondent and witness from the public view (through the RTI Act). Information related to the proceedings of the ICC are also protected from public purview.
Proceedings
The ICC may take steps towards conciliation (informal settlement between parties) at the request of the woman. Otherwise, it shall initiate an enquiry into such allegations. If a prima facie case of sexual harassment exists, the Committee shall submit its finding to the police station. On the completion of the report, it shall be submitted to the employer or the district officer.
Relief During Pendency Of Inquiry
An aggrieved woman, through a written letter, asks the ICC for the following recommendations:
- Transfer of the aggrieved woman or the respondent to any other workplace.
- Granting leave to the aggrieved woman up to a period of three months. Such leave would be in addition to a leave she is otherwise entitled to.
Punishment If Allegations Are Proved
An employer can punish an employee for indulging in an act of sexual harassment in the following ways:
- Punishment as prescribed under the service rules of the organisation.
- If the organisation does not have service rules, disciplinary action including a written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service.
- Deduction of compensation payable to the aggrieved woman from the wages of the respondent.
While complaining to the ICC is a good way of addressing issues pertaining to the workplace harassment culture, there is still scope for improvement in the same.
1. Since the ICC’s members include people from the workplace, it might make the complainants hesitant and not forthcoming, with respect to the filing of the complaint. Instead, an independent board must be established to make the process more welcome for the victim, giving the victims an option of including members from the workplace in such a Board.
2. The ICC’s members are also not required to be well-versed with the POSH Act itself. This may be a problem during the proceedings of a complaint since the law includes a lot of procedural aspects and considerations.
Considering the severity and the serious nature of the crime of sexual harassment that women face every day, especially in their workplaces, there is a need to tighten up the loose ends of such a committee. This committee becomes the first step towards a sense of protection for the survivor, and therefore, all efforts must be made to make the laws encouraging for them.