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More than 50% of working women faced sexual harassment, crude jokes, and unwelcome gestures at least once in their career. Reporting sexual harassment is not easy, sometimes, due to the fear of unlawful termination, unnecessary work pressure, spoiling the team environment.
The Sexual Harassment of Women under the Workplace (Prevention, Prohibition and Redressal) Act (hereinafter referred to as “Act”) was enacted in the year 2013 with threefold purposes:
The Act was enacted after the decision of the Supreme Court in the case of Vishaka and Others v. State of Rajasthan and Others (1997 (7) SCC 323), where the honorable court laid down guidelines relating to sexual harassment of women at the workplace, known as “Vishakha Guidelines”. The guidelines were in force until the enactment of the legislation.
The Act recognizes that sexual harassment of women results in the violation of fundamental rights granted to women under the Indian Constitution. Right to Equality guaranteed under Article 14 and 15 and Right to live with dignity under Article 21(3) are the rights that are affected due to sexual harassment faced by women at the workplace.
The Internal Complaints Committee (ICC) is an obligation under the Act which must be adhered to by an employer of a workplace with more than ten employees as per Section 4 of the Act. The Internal Complaints Committee is the initial in-house body which must be approached for filing of a complaint relating to sexual harassment by the aggrieved women. The Internal Complaints Committee plays an important role in the functioning of the provisions of the Act and to ensure the fulfillment of its objectives. The major functions of the Internal Complaints Committee involve implementing the Policy relating to the prevention of sexual harassment, resolving complaints by the aggrieved and recommending actions to be taken by the employer.
The Internal Complaints Committee must be constituted by an employer at a workplace having more than ten employees. It has to be constituted by an order in writing. In case there are different offices of the workplace, the Committee shall be constituted at every office or unit. The Committee must consist of the following members: -
At least one-half of the total members must be women.
As per Section 4 of the Act, the following are the qualifications for being a member of the Internal Complaints Committee in the workplace: -
The Presiding Officer is the Chairperson of the Internal Complaints Committee. The post must be held by a senior-level female employee at the workplace. The Act provides that in case a senior female employee is unavailable, there can be a nomination of senior female employees from other offices or administrative units of a workplace. Even if not available at another office, the act further provides that such presiding officer be nominated from any other workplace. The provisions have been enacted with a purpose to address the concerns of small workplaces, where female employees at senior levels may not be available. In such cases, the employer may nominate a presiding officer from outside the workplace.
The ICC must also comprise of two or more members from its employees. It is desirable that they possess the legal knowledge, are experienced in social work or committed to the women’s cause. These characteristics are not mandatory and merely preferable because it may not be viable to find such employees.
The ICC must also include a member who is a person familiar with issues relating to sexual harassment, or is a member of a non-governmental organization or association which is committed to women’s cause. Having an outside member gives room for an outside perspective to the ICC. The requirement was also prescribed by the Supreme Court in the Vishakha Guidelines.
As per Section 4(3) of the Act, the tenure of the members of the Internal Complaints Committee in the workplace, i.e. Presiding Officer as well as other members, must not be more than three years from the date of nomination.
A member of ICC may be disqualified on the following grounds:
As per Section 4(4) of the Act, the members who have been appointed from non-governmental organizations or associations are eligible for remuneration to be paid by the employer. They shall be paid remuneration for holding proceedings of the Internal Complaints Committee.
Further, as per Section 3 of the Rules, the NGO members are entitled to an allowance of Rs. 200 per day for the conduct of proceedings at the ICC. They shall also be reimbursed for the travel costs incurred.
What is the Procedure to File a Complaint with the Committee?
The Act does not prescribe a particular format for filing of a complaint. However, following are the perquisites relating to filing of a complaint relating to sexual harassment:-
The complaint can be filed by the following persons: -
The complaint can be filed within 3 months from the date of the incident of sexual harassment. In case of a series of incidents, the complaint must be filed within 3 months from the date of the last incident. The Act provides that the time period of 3 months may be extended by the Committee after recording reasons.
The Internal Complaint Committee is vested with the powers of a Civil Court under the Civil Procedure Code, 1908(1) in the following: -
Upon completion of the inquiry, if the Internal Complaint Committee finds the person guilty, it may prescribe the following actions: -
The amount of compensation payable is calculated on the basis of the following factors: -
If the respondent fails to pay the amount of compensation, the ICC may forward the amount to be recovered as an arrear of land revenue with the District Officer.
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The Act clarifies that to determine the complaint being the malicious, mere inability to provide adequate evidence is not sufficient. And the malicious intent must be determined after the conduct of an inquiry.
The Internal Complaint Committee has been empowered to forward the complaints to the police in two circumstances which are as follows: -
Upon receiving a written request, the Internal Complaints Committee can recommend the following actions to the employer during the inquiry pending: -
It is the duty of the employer to implement the recommendations of the Committee and thereafter submit a report of the same.
The Committee has a major role to play at the workplace where it has been constituted. A general list of duties of the Committee is enumerated as follows: -
The employer must include details in the report like number of case files at their disposal.
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An appeal can be filed before the court or tribunal against the recommendations of the Committee within a period of ninety days in the following circumstances: -
The Act imposes certain mandatory obligations upon the employer which includes constituting the Internal Complaints Committee. In case of failure to do so, the act imposes a penalty of fifty thousand rupees.
Further, the Act provides that repetition of the same offense would lead to double penalty or deregistration or revocation of license of the concerned business enterprise. Also, the offenses under the Act are non-cognizable.
1. Civil Procedure Code, 1908 - A detailed view of the Civil Procedure Code, 1908.
2. Section 509 of the Indian Penal Code - A sitemap of section 509 of the Indian Penal Code.
3. Article 14 and 15 and Right to live with dignity under Article 21 - A detailed view of Article 14 and 15 and Right to live with dignity under Article 21.