Constitution, roles duties and powers of ICC

INTRODUCTION
The Prevention of Workplace Sexual Harassment Act has been
enacted with the objective of preventing and safeguarding women
from sexual harassment at work and ensuring that accusations of
sexual harassment are handled successfully. The sexual harassment
of woman at work place (prevention, prohibition and redressal) act,
2013 is commonly referred as “POSH act” act is a special type of
legislation that was enacted with the aim of creating safe work
environment for women in the country. The Vishakha guidelines,
issued by the Hon’ble Supreme Court of India in the matter
of Vishaka and Ors vs. State of Rajasthan and Ors., led to the
creation of the POSH Act. Since the PoSH Act emphasizes prevention,
prohibition, and redress, one of an employer’s primary
responsibilities is to set up an internal complaints committee.
Employers are required to establish an Internal Complaints
Committee (ICC) in accordance with Section 4 of the POSH Act for
any workplace with ten or more employees. Both governmental and
private entities have an obligation to uphold this. The initial internal
body is essential to ensuring that the POSH Law’s objectives are
realized and that its provisions are carried out without interruptions.

MEANING OF SEXUAL
HARASSMENT
The definition of sexual harassment under the POSH conduct is quite
broad; it covers any unwanted behavior or conduct that has a sexual
overtone and is done without consent. Section 2(n) of the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 provided India with a definitive definition of
sexual harassment. This comprises:

1. Physical contact and advances

 2. Demand or request for sexual favours
3. Making sexually colored remarks
4. Showing pornography
5. Any other unwanted sexual behavior, whether it be verbal,
physical, or nonverbal.

CONSTITUTION OF INTERNAL
COMPLAINT COMMITTEE:
According to section 4(1), an employer must formally notify the
creation of an internal complaint committee by a written order, and
the CEO or Board must also approve it. Should the same organization
have many offices, the committee must be established in each office or
unit.

COMPOSITION OF INTERNAL
COMPLAINT COMMITTEE
The PoSH Act mandates that all employers with ten or more
employees create an ICC by means of a formal written order. The
following is the composition of the ICC as stated in Section 4 of the
2013 Act:

i). Presiding officer/ chairperson:must be a senior female employee of

the organization

ii). Two minimum members amongst employees:These workers

need to be committed to the cause of women, cognizant of gender
issues, and knowledgeable about relevant legal issues

iii). one external member:from a non-governmental organization

(NGO) or association dedicated to women’s issues including sexual
harassment issues
QUALIFICATIONS OF MEMBERS
OF ICC
i). Presiding officer/ chairperson:According to the POSH Act, the
Presiding Officer ought to be a female employee who has a senior
position in the company. If a senior officer is not accessible, another
officer from another office or administrative unit at work will be
nominated in their place. Additionally, if there are no senior female
employees in these offices, the Presiding Officer will be chosen from
among the employees of the same company in any other location, as
well as from any other department or organization.

ii). Two minimum members amongst employees:The ICC should

also include two or more members from its employees. The maximum
number of people that can be added to the committee is unlimited.
Only workers who can contribute to the committee and follow the
rules should be nominated by their employers. The POSH Act and
Rules state that in order to ensure that ICC members are better
prepared to fulfill their responsibilities; employers must regularly
arrange orientation programs and training workshops to close any
knowledge gaps.

iii). External members:The PoSH Act mandates that the ICC should
also include an external member in the committee. A person who fits
this description should have experience with sexual harassment
concerns and come from a non-governmental group or association
that supports women’s rights. The inclusion of an external member
was justified by the fact that they are not an employee of the employer
and can provide an objective and external viewpoint on the subject.
For the purposes of the ICC, the POSH Act does not specify what
constitutes being “committed to the cause of women” or “a person
familiar with issues relating to sexual harassment.

As they nominate the aforementioned members, employers should

also be aware of:
  After being nominated, members shall serve in office for a
maximum of three years.
 According to the PoSH Act, any employee in charge of
management, supervision, or control of the workplace is
considered an employer and is not eligible to join ICC.
 In every workplace (i.e., all administrative units or offices,
branch, etc.), the Employer must establish an ICC.

DISQUALIFICATION OF
MEMBER OF ICC
The following reasons may also result in the ICC members’
disqualification:

 Information about matters that must be kept confidential under

the POSH Act; examples include the identity of the complainant,
the respondent, or witnesses; the details of the inquiry
proceedings and the ICC’s recommendations; or the action taken
by the employer.
o If the individual has been found guilty of any crime under
any law, or if an investigation was initiated against them.
o The same applies if the individual has been found guilty or
if there is an ongoing investigation about any disciplinary
actions taken against them.
o When the individual has misused their position, making it
detrimental to the public interest for them to remain an
ICC member.

In the event of any of the aforementioned circumstances, the member

would be required to resign and be replaced by someone having the
appropriate credentials for the membership level. The POSH rule
requires all organizations to post the names and contact information
of their current IC members on their official website and in
conspicuous locations around the organization.
TENURE OF MEMBERS OF ICC:
The Internal Complaints Committee members’ terms of office are
outlined in Section 4(3) of the POSH Act. The POSH Act’s Section 4(3)
describes the terms of office of the members of the Internal
Complaints Committee.

POWERS OF ICC
ICC has the same powers as are vested in a civil court under the Code
of Civil Procedure, 1908 when trying a suit as per section 11(3) in
respect of the following:

 In accordance with the Internal Complaints Committee Policy, it

has the authority to open an investigation into a complaint of
sexual harassment at work.
 IC has the authority to call parties and witnesses to testify before
the committee.
 It has the authority to call witnesses for examination at its
discretion if the Committee members think it essential.

FUNCTION AND
RESPONSIBILITY OF ICC
Since the POSH Act does not define the duties and responsibilities of
an ICC, it can be summarized as follows in order to address the issue
of workplace sexual harassment effectively:

 Become aware of the problem of sexual harassment in the

workplace,
 Become familiar with the Policy as it has been adopted by the
employer;
 Understand the law and the authority the ICC has been given
under the PoSH Act
 Always be ready to respond to complaints.
  Help the plaintiff submit a formal complaint,
 To refrain from forming any preconceived beliefs about the
accused or the offended woman/complainant
 Assist the company by implementing training and sensitization
initiatives for each employee.
 Keep meeting minutes, grievances, and procedural
documentation and files
 Maintain the confidentiality of the received complaint
 To conduct fair inquiry and offer opportunity to all parties to be
heard, Make sure everyone understands their obligations and
rights
 Compile all the evidence and carry out the required interviews,
 Make sure the investigation is finished by the deadline specified
by the PoSH Act
 Send the employer its recommendations and make sure the
employer follows the aforementioned recommendations.

CONSEQUENCES OF NON-
COMPLIANCE OF PROVISION OF
POSH ACT
All organizations are required by law to abide by the POSH Act, and
there are serious repercussions for breaking the rules. Establishing an
Internal Complaints Committee is one of the employer’s mandated
responsibilities. The Act stipulates that failing to comply with this will
result in a 50,000 rupee fine.

If the same offense is committed again, there will be a double penalty

of 100,000 rupees, and in certain cases, the offending organization’s
license may even be revoked or deregistered.

CASE LAWS
Jaya Kodate vs. Rashtrasant Tukdoji
Maharaj Nagpur University, 2014[1]
The Court established that while the Internal Complaints Committee
was being formed, the members selected have to be dedicated to the
cause of women, have social work experience, or be knowledgeable
about the law. Employers should make an attempt to replace an
Internal Complaints Committee member if any parties to the matter
believe that they are prejudiced.

Ruchika Singh Chhabra vs. Air France

India, 2018 [2]
According to section 4(2)(c) of the POSH Act, which mandates that
one member of the Internal Complaints Committee (“ICC”) be from a
non-governmental organization or association dedicated to the cause
of women, or from a person knowledgeable about the issues
surrounding sexual harassment, the court held that the ICC was not
duly constituted. The court ruled that the International Criminal
Court’s establishment, the proceedings that followed, and the report it
produced were all void, and it ordered the ICC to be reconstituted in
30 days so that new research could be done.

Ashok Kumar Singh vs. University of

Delhi, 2017[3]
The court decided that in a sexual harassment case, the Internal
Complaints Committee (“ICC”) must confirm and assess the victim’s
ability to testify in front of them without fear of retaliation. The ICC
may take additional steps to ensure that the witness’s statement is
refuted or corrected by the offender in any way, such as giving the
offender a statement and asking for his objections to it, if it determines
that the victim is weak and cannot withstand any cross-examination.
A questionnaire was used to cross-examine witnesses as part of the
method the court established for conducting inquiry proceedings
before the ICC.

Vidya Akhave vs. Union of India, 2017[4]

The employer must adequately abide with the obligations imposed
upon it by the POSH Act, the court noted. The Court further ordered
that employers establish an efficient system to prevent sexual
harassment of women at work, that male employees be made aware
of the concerns of female employees, and that the Internal Complaints
Committee handle sexual harassment complaints promptly. In
addition, the Court decided that unless the punishment was
egregiously out of proportion, it would not intervene in an order of
punishment issued by the Internal Complaints Committee in response
to a sexual harassment accusation.

CONCLUSION
The government authorities have taken a very thorough approach to
addressing the problem of sexual harassment of women in the
workplace. Addressing the significant issue of sexual harassment
comfortably is made feasible by the ICC’s functions and powers. The
Committee seeks to implement the Act’s three main goals—
Prohibition, Prevention, and Redressal of the Sexual Harassment
Problem—while enabling women to work in the workplace with
dignity.

DISQUALIFICATION OF
MEMBER OF ICC
The following reasons may also result in the ICC members’
disqualification:
  Information about matters that must be kept confidential under
the POSH Act; examples include the identity of the complainant,
the respondent, or witnesses; the details of the inquiry
proceedings and the ICC’s recommendations; or the action taken
by the employer.
o If the individual has been found guilty of any crime under
any law, or if an investigation was initiated against them.
o The same applies if the individual has been found guilty or
if there is an ongoing investigation about any disciplinary
actions taken against them.
o When the individual has misused their position, making it
detrimental to the public interest for them to remain an
ICC member.

In the event of any of the aforementioned circumstances, the member

would be required to resign and be replaced by someone having the
appropriate credentials for the membership level. The POSH rule
requires all organizations to post the names and contact information
of their current IC members on their official website and in
conspicuous locations around the organization.