By: Anushka Pardikar, Anubhav Kumar and Rishabh Shrivastava
In Part I of the Prevention of Sexual Harassment at Workplace series, we examined the status of compliance with the various provisions of the PoSH Act, 2013. We looked specifically at the extent of sensitisation and awareness programmes conducted by major government organisations in the country.
In this part, we analyse the composition of the Internal Complaints Committee (ICC) as mandated under the PoSH Act. Our RTI response on PoSH compliance also highlighted data with regard to the constitution of the ICC and its scope. The reply showed us the status of ICC in terms of gender inclusion and diversity.
Pursuant to this, we sought information from these organisations as to the details on the number of male, female and members from other genders in the ICC. We also looked at ways through which ICCs are getting constituted and how their composition is to only comply with the law on paper and not with its spirit.
Section 4 of the legislation mandates that every employer set up an ICC at each office or branch where ten or more individuals are being employed. In a situation where the offices of the workplace are located in different places, the employer must constitute the ICC at each such place.
The purpose of the ICC is to provide an institutional redressal mechanism to the employees by hearing complaints of sexual harassment in the first instance.
As per section 4 of the legislation, the employer must set up an ICC comprising the following members:
1. Presiding Officer: This must be a woman employed at a senior level at the workplace. If there is no such person, then the Presiding Officer can be a person nominated from other offices or units of the same workplace
2. Internal Members: Not less than two members of the ICC must be nominated from amongst the employees who are committed to the cause of women or who have had experience in social work or have the legal knowledge
3. External Member: One member must be nominated from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues of sexual harassment
The PoSH Act in itself is not all-inclusive rather it presents a very gender-binary perspective on sexual harassment in workplaces and the mechanism of ICCs. However, over a period of time, several judgments from high courts have interpreted the law progressively and have expanded the scope of the PoSH Act to include people from different genders as well. Also, the courts have made clear that the concept of sexual harassment under the statute “cannot be a static concept but needs to be interpreted against the evolving social perspectives.”
Further, the operation of an ICC is similar to walking a tightrope. It is essential to conduct procedures in a way that respects and understands the mental and emotional sensibilities of the parties while still resolving issues within the allotted time. Therefore, it is the duty of the employer to constitute an ICC that would be capable of advancing and realising the objective of an inclusive and safe workplace.
Key results from the RTI
This report analyses responses to our RTI from selected organizations – Air India, Bharat Sanchar Nigam Limited (BSNL), Reserve Bank of India (RBI), Coal India Limited, Ministry of Women and Child Development, Oil and Natural Gas Corporation (ONGC) National Textile Corporation Limited (NTCL) and Hindustan Aeronautics Limited (HAL).
1. Provision for nominating external members goes for a toss!
The response received from Coal India Limited stated that the ICC was constituted within their unit with four female and two male members. Interestingly, while the particular details of the designation of the Chairperson and other internal members were provided, there were no specific details of the external member who would be part of the ICC.
The reply only stated that the external member may be finalised by the Chairperson in accordance with the terms and conditions of such engagement. It is important to understand that an external member is an important part of ICC to ensure transparency and minimise prejudice to the survivor. Leaving the nomination of the external member at the whims and fancies of the Chairperson is a dangerous precedent and tampers with the spirit of the law.
Further, the reply from the Ministry of Women and Child Development only stated that the ICC constituted within the Ministry comprised five female members including the Chairperson, and one male member. No information was revealed about the external member.
A similarly vague response was received from the Reserve Bank of India, which stated that a Central Complaints Committee (CCC) has been constituted at the Central Office, and includes eight members with at least one-half of the same being women. In addition to this, Complaints Committee (CC) has been constituted at all Regional Offices with six members with at least one-half of the same being women. No external member has been nominated here also.
As far as Air India was concerned, the Western Region of the organisation’s ICC comprised four women members including an external member and one male member. The Southern Region comprised three females, one male, two NGO members, and six co-opted members. Both the Western and the Southern Regions of Air India provided only numerical values on the constitution of the ICC within their units.
Prima facie, the constitution of the ICC seems to comply with the mandate of the PoSH Act in terms of at least one-half of the members of the ICC being women. However, given the cryptic response of the Southern Region of Air India, there is no clarity as to the gender of the NGO and co-opted members constituting the ICC.
Various departments of Hindustan Aeronautics Limited (HAL) responded as follows:
|Name of the Office||Female Members||Male Members||Other members|
|Medical and Health Unit||2||0||0|
|Human Resource Depart5ment||2||0||0|
|Aircraft Research and Design Centre||5||0||0|
|Transport Aircraft Division, Kanpur||5||1||0|
|Rotary Wing Research and Design Centre||7||0||0|
|Avionics Division, Hyderabad||3||2||0|
|Aircraft Manufacturing Division, Nashik||7||3||0|
Further, all divisional responses from HAL state that the ICC would also include an HR Head of Division, a Representative of the Workmen Union of Officers’ Guild, and an External Member. No further details have been provided as to whether these persons would be male, female, or from the other genders.
In simple terms, the response received from HAL is similar to the response received from other major government organisations – no effort has been made to include members from the other genders to ensure inclusivity. The employer has only attempted to comply with the bare text of the PoSH Act by ensuring that at least one-half of the ICC is constituted of female members.
On the nomination of an external member, a perusal of the responses received would indicate that with the exception of the HAL Aircraft Research and Design Centre and HAL Transport Aircraft Division, Kanpur, none of the other organisations have even determined the external member who would form part of the ICC. In fact, the HAL Corporate Office specifically responded stating, “An external member would be co-opted in the Committee in case of any complaint.” This response is particularly problematic as it reduces the status of the ICC within the organisation from a permanent body to one that would be constituted on an ad hoc basis.
Incidentally, the Department-related Parliamentary Standing Committee on Human Resources Development (Parliamentary Committee) debated the issue of whether the ICC should take the form of a permanent body. Some stakeholders preferred the flexibility provided by an ad hoc group, which could be formed whenever an inquiry was necessary and dissolved once the process was complete.
However, the Parliamentary Committee ultimately came to the following conclusion:
“The Committee would like to emphasize on the fact that a victim of sexual harassment needs support and assistance in filing a complaint and going through the inquiry process for the redressal of her complaint. A mechanism already in place would definitely help her to seek justice at the earliest. The Committee agrees with the Ministry that for timely and easy access to victims, these Complaints Committees should be permanent so as to avoid any delay due to procedural requirements of formally constituting such Committees every time a complaint is received.”
Therefore, the absence of a determination of members constituting the ICC could potentially have a consequence that the Parliamentary Committee had so keenly attempted to avoid.
2. Inclusivity is missing
Modern-day workplaces are evolving rapidly. Recently, PM Modi has also emphasized on making workplaces more flexible and safe. But this doesn’t seem to be the case with government offices in the country. The RTI response clearly shows that selected PSUs have failed to nominate members from gender and sexual minority communities in ICC. This deters workplaces, especially government establishments, to become gender inclusive and safe. Considering the fact that most young people prefer still prefer to work in government jobs, having ICCs that fail to acknowledge diversity can prove to be a big jolt to India’s economic aspirations and human rights obligations.
At the very least, these organisations should have attempted to bring diversity and inclusivity to the ICC through external members who may be nominated by the employer among any NGOs.
3. Complying only with bare text
The above analysis clearly shows that complying with PoSH Act has become a mere formality for workplaces. The managers have found ways to fix the gap and fulfill the law’s compliance only on paper. However, in doing so we are leaving our workplaces unsafe for a large number of people who believe in the idea of gender and sexual diversity.
Not only this, but the nature in which we nominate members of ICC is also a major cause of concern. For instance, leaving the nomination of external member conditioned to reporting of any case or at the discretion of the Chairperson is a huge issue that needs to be addressed together by employees, employers, workplace regulators, and other stakeholders.
Today, our country needs more gender-neutral legislation and hence it is the right time for policymakers to revisit the implementation status of the PoSH Act across workplaces from a gender non-binary perspective and make necessary changes. While doing so, it must be kept in mind that having offices that are safe, inclusive and transparent is the need of the hour.
Anushka worked as an intern with TA. Anubhav and Rishabh are Co-founders at TA.
The Analysis (TA) is a research and communication group working on the issues of environment, health, gender, law and human rights. Feel free to share your submissions with us at email@example.com