Beyond Formation: Is the establishment of ICC enough to comply with the requirements of the POSH Act?

Despite a decade since the notification of the Prevention of Sexual Harassment of Women at Workplace Act, 2013 (“POSH Act”) was passed, the status of its effectiveness and comprehensive implementation appears to be an unfulfilled aspiration. The Supreme Court of India recently, in Aureliano Fernandes v. State of Goa, has once again stirred the still water of compliance by calling for a mandatory district-wise survey across the nation with respect to compliance under the POSH Act. Among other notable measures, the Supreme Court has directed the District Officers to verify each employer’s compliance towards constituting an Internal Complaints Committee (“ICC”) and displaying statutory notices about the penal consequences of sexual harassment at workplace. In fact, this case has become a continuing mandamus by way of which the Supreme Court aims to ensure systematic enforcement of the POSH Act across all public and private sectors.

It is now pertinent to examine whether the mere constitution of an ICC at the workplace and its conspicuous publication within the organisation are sufficient to fulfil the objectives of the POSH Act?

There are plethora of judicial pronouncements which highlight that equal impetus should be given to the procedure followed by the ICC during its inquiry, to ensure complete compliance under the POSH Act. More importantly, the inquiry should be fair and must follow the principles of natural justice [Rule 7(4) of POSH Rules]. However, the rules and guidelines framed under the POSH Act to outline the standard practices for ensuring the principles of natural justice are not exhaustive.

Hence, it would be sensible to adopt the below best practices, determined based on the past recommendation/direction of different courts, to ensure that the ICC’s inquiries are impeccable and ensures balance between the legal rights and interests of both the complainant and the accused, and upholds the noble objectives of the POSH Act.

The ICC should not only comply with the statutory requirements [Section 4 POSH Act] but should also comply with one of the principles of natural justice, i.e., ‘nemo judex in causa sua’ which means that no one should be a judge in their own case. This principle requires that the ICC be impartial and unbiased, as any perceived conflict of interest has the potential to compromise the integrity of the inquiry process. Hence, it becomes pertinent that any possibility of bias is ruled out and it is ensured that the members of the ICC have no personal connection or vested interest in deciding the matter in favour of either party. For instance, a member of ICC cannot be a witness to the incident complained of or the external member has to be independent and cannot be related to the employer. 

In addition to the above, the Bombay High Court has also recently held that the composition of ICC cannot be challenged after receiving unfavourable results in its inquiry. Once a party has participated in the inquiry without any demur, it gives the impression that the party has waived its right to challenge the composition of ICC. Therefore, ICCs may explore the option of getting a declaration or undertaking from both parties, before the beginning of the inquiry, that they are satisfied with the constitution of ICC and do not apprehend any bias or impartiality. This would potentially restrict the scope of a challenge to the constitution of the ICC at subsequent stages. Further, the members of the ICC should recuse themselves from the inquiry if they perceive any potential conflicts of interest with any of the parties.

Courts have repeatedly held that sufficient notice and a fair opportunity to the accused is quintessential to the sanctity and credibility of the ICC. In a case where the complaint and documents were not served upon the accused, the Kerala High Court quashed the ICC Report. The law mandates that the ICC sends a notice within seven working days [Rule 7(2) POSH Rules] from the receipt of the complaint, to the accused, providing a clear charge/allegation levelled against him/her and should also mandatorily include copies of supporting documents and a list of witnesses.

ICC should mandatorily provide sufficient opportunity to the accused for the cross-examination of the witness. Courts have time and again held that in POSH proceedings, providing the opportunity of cross-examination constitutes the most important part of Audi Alteram Partem, which translates to ‘no one should be condemned unheard’ and is the most crucial limb of the principles of natural justice.

The Madras High Court, while hearing a writ petition challenging the findings of ICC, has held that though a relatively sensitive process is required in sexual harassment cases, however, the denial of an adequate opportunity of cross-examination is a critical procedural violation and a violation of principles of natural justice.

More importantly, the Apex Court in a landmark judgment had upheld the ‘as far as practicable’ standard which effectively means that the ICC may be permitted to adapt and alter procedural requirements reasonably when strict compliance is difficult (for example, holding virtual session due to witness’s unavailability or make some changes to relax institutional hurdles) however, this does not mean that core principles of natural justice (such as notice or fair opportunity to present or challenge witness) can be curtailed. In this case, the Apex Court set aside ICC’s finding as it did not provide sufficient time to the accused to prepare for cross-examination of the witness and closed the proceedings in unusual haste.

The Delhi High Court has laid down certain guidelines to be followed by ICC while ordering a fresh inquiry in one of the matters. One of the most noteworthy guidelines was to provide the opportunity of hearing to both the parties before conclusion of the hearing. However, it must be ensured that the parties do not have a right of legal representation during these personal hearings [Rule 7(6) POSH Rules].

Another notable practice that can be explored by the ICCs is to maintain a daily order sheet in which all the main events of an inquiry are recorded, including but not limited to [Office Memorandum, Department of Personnel and Training Establishment Division as updated on 04.11.2022]:

a) requests/representations by parties and decisions thereon;

b) recording if the accused refuses to cross-examine witnesses;

c) advice given to the accused about rights;

d) decisions on requests for engaging defence assistants;

Maintaining daily orders provide a defensible record, in the event such inquiry or its outcome is challenged. It also demonstrates procedural fairness, consistency and accountability in the POSH proceedings.

It is an established and cherished principle of law that justice should not only be done, but also appear to be done. By extension of the same principle, we argue that merely constituting an ICC does not by itself complete the compliance under the POSH Act; the process of inquiry undertaken by such ICC is also of pivotal importance. In fact, for achieving the noble objective of the POSH Act, the process of inquiry should be meticulous and should adopt the above indicated practices. The Employer should also conduct appropriate training of the ICC members and sensitise them effectively on the procedure to be followed. These actions, when taken up efficiently and comprehensively, will lead to the effective implementation of, and compliance under the POSH Act.

About the authors: Pratyush Kumar Singh is a Partner and Mayank Kumar is a Senior Associate at TLH, Advocates & Solicitors.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

If you would like your Deals, Columns, Press Releases to be published on Bar & Bench, please fill in the form available here.