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Opinion

Duo Moves Bombay HC to Plug Gaps in POSH Law and Protect ICC Members

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A former corporate executive and an activist lawyer have referred to the Bombay High Court seeking protection from services for members of the Internal Complaints Committees (ICCs) established to deal with allegations of sexual harassment in private companies on the grounds that they are susceptible victimization.

The petitioners: Janaki Chaudhary, a former corporate executive who was allegedly attacked and unfairly treated by her employer due to the decisions she made as chair of the internal grievance committee at her former workplace, and activist attorney Abha Singh, have also sought a direction to establish a commission to review deficiencies in the Protection of Women from Sexual Harassment (Prevention, Prohibition and Reparation) Act (POSH), 2013, and to formulate guidelines to extend protection to ICC members.

Their public interest litigation indicated that the POSH Act provides for the mandatory constitution of the ICC by companies that have 10 or more employees to deal with complaints of sexual harassment in the workplace, but does not provide guarantees for members.

“These committees are given the power of the civil courts and have the obligation to conduct a free and fair investigation into the alleged incident and give an impartial recommendation to the employer,” states their PIL. “However, the members of these committees, related to the judges, have not been given any guarantee that allows them to act without fear and without favors,” he adds.

“Thus, an anomalous situation has arisen in which ICC members have been conferred quasi-judicial powers without the necessary independence and safeguards,” he states, adding: “This creates a highly unjust and iniquitous situation. for members of the ICC, as well as for parties to the ICC. case. This acts as a barrier to comprehensively addressing the problem of sexual harassment. “

Therefore, they have complained, the current law, as it stands today, “leaves room for the top management of the company to manipulate the ICC members in the form of arbitrary transfers, dismissals, victimization in unrelated work areas. , etc.”

They argued that the risk of this form of retaliation is more likely in cases where the person accused of sexual harassment is a senior official with considerable influence in the company. “This conflict of interest, where ICC members are on the company’s payroll and may have to make decisions against their elders, creates a precarious situation for both ICC members and women in the workplace. job. Furthermore, it contradicts the objective of the law, which is to provide protection against sexual harassment of women in the workplace and for the prevention and redress of complaints of sexual harassment. “

In this context, the petitioners have sought protection of the service for the ICC members, along with public servants, since they have the legal task of resolving complaints of sexual harassment while they are on the company’s payroll and can be fired with only three months’ pay. , since there is no legal obligation on the part of the private sector to follow the principles of natural justice. “This creates a serious conflict of interest and limits ICC members to make free, fair and impartial decisions.

According to then, the POSH Act was intended for the ICC to function as an adjudicating body and according to section 19 of the Indian Penal Code, ICC members can be considered as judges, especially since section 11 of the Act POSH empowers them to investigate a sexual harassment report. Article 18 of the Law provides for an appeal against the decision of the ICC.

“Thus, the POSH Law empowers the members of the ICC to issue final judgments, against which they can appeal, treating them as judges,” affirms the PIL, stating that “therefore, in order to reflect the true spirit of the Vishaka guidelines (established by the Supreme Court) and India’s international obligations under the CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), ICC members should receive strong guarantees similar to those of judicial officials “.

The PIL will appear for a court hearing by Chief Justice Dipankar Datta and Justice Girish Kulkarni, but a date has not yet been announced.

Hindustan Times

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