Indian Courts on ICC members’ selection & qualification as per POSH Act 2013

Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act, 2013), Internal Complaints Committee (ICC) is the focal point for redressal of sexual harassment complaints by employees. Thus, it is vital that the ICC constituted which is just and impartial in the inquiries it undertakes, and has the requisite qualities, sensitization, and contextual information for it to effectively help those that approach it. If the constitution of the ICC is not in accordance with the manner prescribed by the POSH Act 2013, or if the compliance is strictly legalistic and there is lack of discretion and care in choosing the members of the committee, ICC may be rendered wholly ineffective.

POSH Act 2013 prescribes that the ICCs must be constituted at all the offices and administrative units when the workplace is located at different places or when there are sub-divisions and defines their qualifications.

Over the years, several High Courts have contributed to the understanding of the constitution of ICCs, and explained the intricacies of the qualifications that members must have- that are not made explicitly clear by a direct reading of POSH Act, 2013.

The members chosen must be committed to the cause of women, or have legal knowledge or experience in social work.

In 2014, the Bombay High Court in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University held that if the constitution of the ICC is challenged, material must be placed on record to show that the members satisfy the qualifications provided under the Act. If this is not possible, sufficient evidence must be shown to prove that no other employees in the workplace fulfilled the above mentioned requirements and therefore, they had no option but to appoint the two as members. In this case, none of the 2 members fulfilled the qualification criteria provided under the Act and hence, the court decided that the constitution of the ICC in itself was illegal and contrary to Section 4 of the Act.

A single unified inquiry report must be prepared by the ICC and individual members cannot make separate submissions.

The Jaya Kodate case also clarified that separate reports from the ICC would not be permissible, as Section 13 of the Act that deals with the inquiry report prepared by the committee uses terms like ‘a report’ and ‘such report’, proving that the letter and spirit of the Act only envisage a joint report based on a consensus of all the members.  In this instance, a report had been submitted by the Presiding Officer, and another by the two internal members along with the External Member from an NGO. The court held that the two reports could not be considered. If there is no dialogue, deliberation and consultation with the other members, the very purpose of having a multi-member body gets frustrated; and there is an opportunity for individual biases to creep in, not tempered by discussion with others. The court held, in addition, that the members of the ICC must not be mere signatories to a report prepared by an individual member but that there must necessarily be participation and application of mind by all the members.

In cases where the workplaces run by the same employer are not geographically distinct, a single ICC may be permitted.

In a case that involved the running of a junior and senior college by the same employers, although subject to different service rules, one, to the Maharashtra Employees of Private Schools Act and the other to Maharashtra Universities Act subject to UGC guidelines, the court held that as the same premises, be it the playground, the library or the labs, were in use, the staff of these otherwise distinct establishments would constantly come in contact with each other. The court held that there was no bar to constituting a single ICC in such a contingency to smoothly deal with any allegation of sexual harassment and to avoid duplicity. It held that the bar would operate only if the units were geographically distinct or inconveniently located.

If the constitution of an ICC is not in accordance with the statutory mandate, the ICC must be reconstituted and all  findings of the earlier committee disregarded.

In Shardaben Murlibhai Gurjar v Union of India, the court affirmed that if the very constitution of the ICC is not in accordance with the statute, the inquiry is vitiated. The importance of a Senior woman employee as the Presiding Officer cannot be undermined and a mere three member committee not satisfying this provision but fulfilling the other conditions, would not suffice.

The Presiding Officer must be a female employee at the Senior level but there is no stipulation, express or implied, that she must be Senior in rank to the employee against whom the allegation is leveled.

Interpreting the term ‘senior’ as regards the provision for a female Presiding Officer, the Allahabad High Court in Shobha Goswami v. State of U.P clarified that there is no requirement that the Presiding Officer of the ICC also be senior in rank to the person against whom the accusation of sexual harassment is made; and upheld the report prepared by the ICC presided over by the female DGM in relation to a charge against the Senior Officer.

Thus, the judicial pronouncements continually aid in the understanding of the way in which ICC’s are to be constituted; and though further questions may crop up, the adjudicated cases help us understand that the courts have emphasised that, in addition to compliance with the wording of the statute, the spirit embodied by the principle that there is a pressing need to provide an enabling environment for women at the workplace must guide the constitution of the committees.

Author: This post has been submitted by Ishrita Bagchi, as part of her assignment with Ungender Insights. Ishrita Bagchi is currently a student of National Law University, Jodhpur.