Constitution of the Internal Complaints Committee (ICC) under the POSH Act: Roles, Structure, and Responsibilities

The Prevention of Sexual Harassment (POSH) Act, 2013, was enacted to address workplace sexual harassment in India and mandates every organization to establish an Internal Complaints Committee (ICC). The ICC plays a pivotal role in ensuring a safe and harassment-free work environment. Its primary responsibility is to investigate complaints of sexual harassment, ensure a fair inquiry, and recommend appropriate action. In this article, we will explore the structure, composition, and responsibilities of the ICC, along with the legal requirements governing its formation and operation.

1. Legal Mandate for the ICC under the POSH Act

Under the POSH Act, every employer is legally required to establish an Internal Complaints Committee (ICC) in the workplace to handle complaints of sexual harassment. This obligation applies to any organization with 10 or more employees. The ICC must be constituted at every branch or office location where the employee headcount meets this threshold. Failure to constitute an ICC can lead to penalties under the law.

2. Composition of the Internal Complaints Committee

The composition of the ICC is critical to ensuring a fair and unbiased inquiry. The POSH Act provides specific guidelines regarding the appointment of members, ensuring that the committee is diverse, impartial, and capable of handling sensitive issues related to sexual harassment. The ICC should have the following members:

a) Presiding Officer (Chairperson)

• The Presiding Officer must be a woman employed at a senior level in the organization.

• If no senior woman employee is available at a particular office or branch, the employer may nominate a woman from another office or branch of the same organization

• The selection of a woman as Chairperson ensures that female employees feel more comfortable approaching the committee with complaints of sexual harassment, considering the gendered nature of most harassment cases.

b) Internal Members

• The ICC must include at least two employees from within the organization who are committed to the cause of women or have experience in social work or legal knowledge related to women's rights.

• These members play a critical role in maintaining the committee’s sensitivity and awareness of issues surrounding gender equity, and they contribute to the decision-making process by providing their insights.

c) External Member (Third Party Representation)

• One external member, who is not employed by the organization, must be appointed to the ICC. This individual should be committed to the cause of women or possess expertise in dealing with issues of sexual harassment and knowledge of quasi judicial civil court procedure.

• The external member ensures impartiality and brings an objective, independent perspective to the inquiry process, minimizing the risk of internal bias within the organization.

d) Gender and Representation Requirements

• The law requires that at least half of the members of the ICC must be women. This requirement promotes a more gender-sensitive approach to handling complaints, making it easier for female employees to engage with the committee without hesitation.

3. Appointment Criteria and Tenure of ICC Members

a) Appointment Process

• The employer is responsible for appointing ICC members, ensuring that they meet the qualifications outlined in the POSH Act.

• The selection of members should be made with care to ensure that the committee remains neutral and credible, with a mix of seniority, expertise, and gender balance.

b) Tenure

• Members of the ICC, including the Chairperson, are appointed for a term of three years.

• At the end of their tenure, they can be reappointed or replaced by new members. The tenure ensures that the ICC operates efficiently and that there is no unnecessary turnover, which could affect the continuity of cases being handled by the committee.

c) Disqualification of Members

• The ICC must maintain objectivity and neutrality. Therefore, members with any conflict of interest in a particular case are required to recuse themselves from the inquiry.

• Members can also be disqualified if they disclose sensitive information about complaints or fail to uphold the confidentiality required during the inquiry process.

4. Roles and Responsibilities of the ICC Members

The ICC’s effectiveness depends on its ability to conduct fair, unbiased, and confidential inquiries into complaints of sexual harassment. Each member has specific roles and responsibilities that contribute to the inquiry process.

a) Presiding Officer (Chairperson)

• The Chairperson leads the inquiry process, ensuring that the complaint is handled with diligence, confidentiality, and sensitivity.

• They are responsible for scheduling meetings, overseeing investigations, and ensuring that the inquiry is conducted in compliance with the POSH Act’s procedural guidelines.

b) Internal Members

• Internal members assist in the collection of evidence, examination of witnesses, and interviews with the complainant and respondent.

• They also provide insight on the organization's culture and operational processes, helping ensure that the inquiry is relevant and fair in the organizational context.

c) External Member

• The external member's primary responsibility is to maintain objectivity and independence throughout the inquiry.

• They ensure that the internal members and the Chairperson are unbiased and that the committee follows the law and principles of natural justice.

d) Responsibilities During the Inquiry

• The ICC must begin an inquiry within 7 days of receiving the complaint and complete the inquiry within 90 days.

• Both parties must be given the opportunity to present their cases, submit evidence, and respond to the evidence submitted against them. The principles of natural justice, such as the right to a fair hearing, must be followed throughout the inquiry.

• After concluding the inquiry, the ICC is required to submit a report to the employer within 10 days. The report must include the committee's findings, conclusions, and recommended actions, including disciplinary action or compensation, if warranted.

e) Confidentiality

• The ICC is legally obligated to maintain strict confidentiality about the details of the complaint, the parties involved, and the proceedings. Breach of confidentiality by any member may lead to disqualification and legal consequences.

• Confidentiality ensures that the dignity and privacy of both the complainant and the respondent are protected, and the inquiry process is not influenced by external factors.

5. Functions of the ICC in Ensuring a Fair and Unbiased Inquiry

The ICC’s core function is to conduct a fair and unbiased inquiry into complaints of sexual harassment, adhering to the guidelines laid down by the POSH Act. To do so, the ICC must:

a) Provide Assistance to the Complainant

• Assist the complainant in filing the complaint and ensuring that their rights are protected during the inquiry process.

• Offer interim relief, such as changing work duties, granting leave, or ensuring that the complainant is not subjected to further harassment during the course of the inquiry

b) Conduct an Impartial Inquiry

• The ICC must act independently and without prejudice. Members must set aside personal biases and focus solely on the facts and evidence presented.

• The principles of natural justice, such as giving both parties an equal opportunity to present their case, are critical to maintaining the integrity of the inquiry.

c) Make Recommendations and Ensure Follow-Up

• After concluding the inquiry, the ICC must provide recommendations on appropriate actions, such as disciplinary measures, legal recourse, or compensation.

• The employer is obligated to implement these recommendations within 60 days. The ICC must ensure that the recommendations are acted upon and that justice is served in a timely manner.

Steps that HR Department Must take To Prevent Sexual Harassment At Work.

A large portion of the workplace in India is plagued by the problem of sexual harassment. In order to prevent it, businesses should take precautions, and they should also be prepared to address it if it does. The HR department is in charge of making sure compliance. To make the workplace safe for employees, they can implement Posh rules and take the ten steps listed below.

HR should make sure that the business has several reporting options, including anonymous reporting, for sexual harassment. They must also ensure that the staff is aware of these options, whatever they may be.

A human resources professional must understand that harassment can affect anyone, regardless of gender, sexual orientation, or other identifiers. Many LGBTQ employees are especially susceptible to harassment, whether it be sexual or otherwise. Sexual harassment can happen to anyone, even straight males in powerful positions inside the organisation. Every report should be taken seriously, and every investigation should start with the purpose of learning the truth rather than working backwards from a presumptive conclusion. If there is one thing that HR departments want, it is to be viewed as "the good policemen" rather than another barrier. 

The Posh policy must cover bystander training. This might be a good way to raise issues before they become outright harassment. It's a more recent idea, but college campuses have begun applying it to prevent sexual assault. Employees who have received bystander training are taught when and how to step in to stop harassment. It can counteract what is referred to as "the bystander effect," when individuals are less likely to intervene in a quarrel when others are present because they assume others will do so first. Now, it is up to HR to provide employees with the confidence and security they need to step in during a conflict.

Retaliation And Sexual Harassment at Workplace?

71% of women fail to report incidences of sexual harassment at work, according to a 2015 survey. Only 68.9% of Indian women who experience sexual harassment report their experiences to the Internal Committee (IC) or management, according to a 2017 survey by the Indian National Bar Association (INBA).

Retaliation is a tactic used to ridicule, humiliate, and spread rumours about the sexual harassment victim. When an employee reports sexual harassment in the workplace, the company may take action against them. Retaliation is any negative employment action that involves "exerting power." Demotion, wage reduction, job transfer, and termination are a few examples.

For fear of retaliation, many women choose not to report sexual harassment at work. The victim may be the target of reprisals from the accused or the organisation. In fact, studies has shown that businesses frequently devalue sexual harassment. As a result, the victim faces hostility and reprisals.

The organization's environment affects how it reacts to reporting. If the organisation backs the reporter, retaliation can be restrained. If a reporter receives more backing from the organisation, especially the management, they are less likely to face reprisals. An indication of this support is the work being done to substantiate the claims and address the complaint. The organization's intolerance of sexual harassment helps the support even more.

Status of Local Committee formation under POSH.

According to Section 6(1) of the Act, "Every District Officer shall constitute in the district concerned a committee to be known as the "Local Complaints Committee" to receive sexual harassment complaints from establishments where the Internal Committee has not been formed because it has fewer than ten employees or if the complaint is against the employer himself."

The Local Complaints Committee was changed to become the Local Committee in May 2016, broadening its mandate from merely handling complaints to one that requires it to act proactively to combat sexual harassment.

According to a report by the Martha Farrell Foundation, POSH policies are not generally being followed to its fullest extent (2018). In accordance with this research, 655 districts had 56 percent of requests for data sets from operating Local Committees ignored. Only 29% of districts claimed to have created LCs, and 15% of those districts still hadn't done so.

43% of respondents from the unorganized sector said they had at least once felt uneasy around a coworker. It is crucial to recognize the part stigma plays. The stigmatization of women increases with their level of marginalization, and many may not have the backing of their families to come forward and report workplace sexual harassment.

The Local Committee has the potential to sustain the spirit of the Vishakha principles through efficient execution. Since 95% of women in India's workforce are employed in the unorganized sector, strengthening the LC's operations would help the country's deeply ingrained patriarchal systems while ensuring institutional accountability.

Tips to create trans-inclusive workplace.

More than 27000 transgender people participated in a poll in 2015, and the results showed that at least 77% of them actively avoided workplace discrimination. This includes keeping their gender identities a secret, declining to request the use of their preferred pronouns by their employers and coworkers, and postponing gender transition.

Transgender individuals might not be fully present at work. Because they are more likely than cisgender employees to have an uneven working environment, they could feel uneasy or alienated.

Companies should begin implementing nondiscriminatory rules and procedures that are gender-specific. This entails regardless of their gender identities, defending and advancing the rights of every employee Increasing employee awareness of and acceptance of their transgender coworkers.

To some extent, everyone needs to feel like they belong. It's common for us to evaluate our relationships subconsciously. We experience poor levels of self-esteem and unfavorable sentiment when our social value declines. A social affirmation or appraisal, on the other hand, has the opposite effect. We feel included and valued when we receive praise, gratitude, and approval.

Likewise, transgender employees are accepted and valued in the workplace because to inclusive policies including using proper names and pronouns, having access to toilets that are gender-neutral, and having gender-neutral dress rules.

By creating advantages that are trans-specific and trans-friendly, businesses need to behave as supporters. For instance, helping with mental health services is a fantastic approach to support your transgender staff.

This may also apply to company regulations governing personnel who identify as gender non-conforming. Transgender workers will experience more inclusion at work by doing away with gender-specific jargon and upholding antibias standards.

It's also crucial to increase public awareness about gender identification. Many people lack the fortitude and expertise to question preconceptions and societal standards. Encourage your staff members to step outside their comfort zones and have unpleasant talks with management, especially the leaders. Cisgender employees who speak out against gender-based discrimination and ineffective rules at work provide a positive message of inclusiveness to their transgender coworkers.

Posh in Higher Education Institutions in India

On July 25, 2022, an Odisha college student accused the school's physics instructor of rape and sexual harassment. The accused lecturer, who was the institution's reader, had also held the role of NCC officer in the Naval wing. Despite the female student coming to the institute with a formal complaint, the school's internal committee did not discover any proof of the claims she claimed. The probe didn't start until the Higher Education Department became aware of the situation.

A Presidency University student from Kolkata filed a formal complaint with the internal committee of the university accusing Mahitosh Mandal, the former head of the department, of sexual harassment on July 17, 2022.

It is believed that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is essential for protecting female employees from sexual harassment at the workplace. It is significant to highlight that educational institutions play a significant role in this while also including formal and informal workspaces and that the law is not confined to the corporate environment in the formal sphere.

A federal law that forbids sexual harassment of female employees and students in higher education institutions is the UGC (Prevention, Prohibition, and Redress of Sexual Harassment of Women Workers and Students in Higher Education Institutions) Regulation, 2015.

In an effort to make changes, the UGC (Prevention, Prohibition, and Redress of Sexual Harassment of Women Workers and Students in Higher Education Institutions) Regulation, 2015 requires all universities, colleges, and deemed universities to adhere to a set of rules to ensure that the campuses are free from sexual harassment.

In order to prevent gender bias, the term "students" assures that the legislation covers every person registered in a specific higher education institution, regardless of their gender.

An internal complaints committee must be established at every higher education institution in order to address sexual harassment claims. It must be dubbed the ICC and adhere to UGC-mandated rules if a body already exists with this goal.

Saurabh Kumar Mallick v. CAG: Reinforcing the Reach of the POSH Act in Government Institutions.

In a landmark judgment, the Delhi High Court delivered a resounding verdict that extended the applicability of the Prevention of Sexual Harassment (POSH) Act to government organizations, including constitutional bodies like the Comptroller and Auditor General of India (CAG). The case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2018) was a pivotal moment in ensuring that the principles of the POSH Act are upheld across all spheres of employment, irrespective of the nature or status of the organization.

The Crux of the Case

The case arose from a petition filed by Saurabh Kumar Mallick, an Assistant Audit Officer employed with the CAG, who alleged that he had been subjected to sexual harassment by a superior officer. Mallick claimed that despite filing a formal complaint, the CAG failed to take appropriate action or constitute an Internal Complaints Committee (ICC) as mandated by the POSH Act.

The CAG, in its defense, argued that as a constitutional body, it was not bound by the provisions of the POSH Act, which primarily applied to private-sector organizations and government departments.

The Decisive Ruling

The Delhi High Court, in its judgment, unequivocally rejected the CAG's contention and affirmed the applicability of the POSH Act to all organizations, including constitutional bodies like the CAG. The court's reasoning was based on a comprehensive analysis of the Act's provisions and its overarching objective of providing a safe and secure work environment for all employees, regardless of the organization's nature or status.

Key Observations and Implications:

Broad Applicability: The High Court emphasized that the POSH Act is a comprehensive legislation aimed at addressing sexual harassment in all workplaces, without any exceptions or limitations based on the type of organization.

Constitutional Mandate: The court highlighted that the POSH Act is a manifestation of India's constitutional commitment to ensuring gender equality and the right to life and dignity for all individuals, including those employed in constitutional bodies.

Equal Protection: The judgment reinforced the principle that all employees, irrespective of their place of employment, are entitled to equal protection under the law and the right to a safe and secure work environment.

Compliance Obligations: The court underscored that constitutional bodies like the CAG are not exempt from their obligations under the POSH Act, including the requirement to constitute an Internal Complaints Committee and implement mechanisms for addressing sexual harassment complaints.

The Broader Impact

The Saurabh Kumar Mallick v. CAG judgment has far-reaching implications for the effective implementation of the POSH Act across various sectors and organizations. It sends a clear message that no institution, regardless of its constitutional status or nature, can claim exemption from the provisions of this crucial legislation.

By extending the reach of the POSH Act to government organizations and constitutional bodies, the Delhi High Court has reinforced the principles of equality, non-discrimination, and the right to a safe and dignified work environment for all employees. This judgment serves as a powerful reminder that the fight against sexual harassment in the workplace transcends organizational boundaries and requires a concerted effort from all stakeholders, including those in positions of authority and responsibility.

As India continues to grapple with the pervasive issue of sexual harassment, this landmark ruling reinforces the commitment to creating inclusive and equitable workplaces, where every individual can thrive and contribute to the nation's progress without fear of harassment or discrimination