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.