Written by Yashaswani Parashar

TRANSMOGRIFICATION IN A DECADE – PERSISTANCE OF SEXUAL VIOLENCE AT INSTITUTIONS

INTRODUCTION

The recent incidents at educational institutions and workplaces have not left safe havens anymore. The plight of a B. ED student in Odisha, law student in Bengal, and the R.G Kar Medical Hospital cases have shunned the legal system and society. There is a continuous surge of sexual harassment cases at institutions, which include threats for sexual favours, putting employees at a disadvantage, making sexually coloured remarks, and treating them with unwelcome behaviour.

Such behaviour is predominantly a consequence of discrimination based on gender identity or sexual orientation. How can legal consciousness forget the 1997 delinquent incident of gang rape of a social worker, Bhanwari Devi, which still reflects the unsafe environment for women in the workplace. The Hon’ble Supreme Court, taking cognizance, filled the legislation gap by giving a horizontal approach to the fundamental rights of working women.

The Court stepped forward to integrate the principles of International Conventions with Articles 14, 19, and 21 of the Indian Constitution. Finally, the landmark judgment of the Vishaka case laid down certain guidelines. Among them, one was the establishment of the Complaint Committee which later in the POSH Act, 2013 institutionalised as the redressal mechanism at every workplace. Therefore, this article will examine the transformative aspect of Internal Complaint Committees (ICCs) toward Constitutional goals of gender equality.

ICC – TRANSFORMING THE WORKPLACES

A healthy and safe workplace environment is the basic requirement of an employee guaranteed as a fundamental right under the Constitution of India. In 1997, the Supreme Court in the case of Vishaka safeguarded this Constitutional value of equal footing of women in the workplace by establishing a complaint mechanism. This internalized the necessity of protecting women in the workplace and attempted to sensitize them towards their rights.

The court also recommended that the Central and State Governments ensure that the Internal Complaint Committee is established in all sectors. The redressal committees aim to operationalise gender equality and personal liberty in the workplace. Further, it serves the purpose of preventing gender discrimination, promoting equal rights, protecting the right to work, and providing a safe environment at the workplace. In the case of K. Narmatha v. Home Secretary, the Madras High Court held that every case of sexual harassment, irrespective of merits, should be referred to the ICC.[1]Various adjudications of High Courts further extended the authority of the Complaint Committee to deal with sexual harassment with extreme urgency.[2]

In 2013, the Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, also known as the POSH Act. The Preamble of the Act manifests the progressive development of women’s rights in India. It recognizes that sexual harassment at the workplace results in a grave violation of the right to equality under Article 14 and Article 15 of the Constitution. The right to dignity or decency or freedom from exploitation under the segment of Article 21 of the Constitution is reflected in all the provisions of the Act.

MEASURING THE CHANGES IN A DECADE

The collaborative efforts of the judiciary and legislature in the progressive incorporation of constitutional values in the last decade are crucial to be examined from the viewpoint of beneficiaries at workplaces. The inquiry is concerned with the transformation that constitutional interpretation and its implementation brought into the lives of working women. A scrutiny of the functioning of the Internal Complaint Committee would reflect these changes at the workplaces that came subsequently in conformity with the vision of the POSH Act.

In 2013, Zia Mody, in her book, cited that 88 percent of the female workers in various companies faced sexual harassment and had no knowledge of where to report this harassment.[3] The situation has not dynamically changed after ten years; it has been found that the number of complaints in the year 2023 increased by 31% as in 2022. The statistics show that the number of sexual harassment cases has not been decreasing despite legislative enaction.

The increasing number of complaints is a clarion call to check the effectiveness of the redressal mechanism in creating a safe workplace. Justice Verma Committee recommended that the composition of the committee must have at least one member with a legal background. It was also recommended that the establishment of an Internal Complaint Committee might be counterproductive to the aims that are sought to be achieved by the POSH Act; thereby, an employment tribunal should be set up to prevent in-house dealing of complaints.

The observations of the committee are relevant as the ICC at the workplace has deficits in proper functioning. The factors due to which the committee lags ineffective working has been reported in some cases before the courts. Thus, the observations of the cases highlighting the need for improvement in the functioning of the ICC are crucial to be examined.

CHALLENGES TO COMPLAINT COMMITTEES

In most cases, the inquiry of Internal Complaint Committees is challenged in the court of law on the grounds of credibility, improper composition, and lack of expertise. The Delhi Court in the case of Rashi v. UOIclarified the functioning of the ICC that it should work impartially, conduct fair proceedings, involve independent persons (at least one), follow principles of natural justice, and act reasonably. However, the capability of the committee in the examination of evidence and witness legal knowledge is contentious, as the proceedings are non-judicial.

Supreme Court in the case of Punjab and Sind Bank v. Durgesh Kuwar held the proceedings of the ICC invalid on the ground of defective constitution. In another case of Nisha Bhatia v. UOI (a complaint filed by an intelligence officer), the court observed that the complaint committee substantially failed in its proper constitution and also breached the Vishaka guidelines. The court found a grave violation of the fundamental right of Nisha Bhatia due to improper handling of the complaint, procedural ignorance, and procrastination of justice. Thus, frequent challenges to Internal Committees show prejudice, humiliation, and discriminatory situations that would have been created for women employees during the proceedings.

Recently, the Apex Court examined the procedure of internal inquiry on the complaint of a lecturer of Goa University in the case of Aureliano Fernandes v State of Goa. It was found that the committee violated the principle of natural justice by fast-forwarding the proceedings and not allowing the appellant to be heard. The court held that the discretionary power of the committee, if found improper or against natural justice, should not be considered for judicial scrutiny as it would end up causing greater harm to the victim.

The directions of the case were further cited in Initiatives for Inclusion Foundation v. UOI, where the Hon’ble Supreme Court concluded that for better working of Internal Committees and Local Committees, there should be strict compliance with Section 21 and Section 22 of the POSH Act for preparing Annual Compliance Report.[4] There must be larger efforts toward awareness by organizing workshops, seminars, and other programs at workplaces by the authorities, management, and employers. Last but not least, there should be the building of a check and balance mechanism on the ICCs under the authority of the District Magistrate or other concerned authorities. 

CONCLUSION

Though the transformative aspects of the Internal Complaint Committee, tracing from the Vishaka guidelines, is remarkable in the institutionalization of the redressal mechanism. The mandate of constituting ICC at the workplace under the POSH Act has still not been complied. Had complaints been redressed properly, the precious lives would not have been lost. The grassroots of the mandates is crucial to be inspected for the alarming increase in harassment cases in the workplace.

Even the post-Nirbhaya criminal law reforms could not lead to a decline in rape cases. Ironically, the newspapers are buckled up with brutal rape and murder cases. In a recent incident in Odisha, the government had asked all the educational institutions to form complaint committees. After the Bhanwari Devi case, numerous adjudications, legislation, and policies have attempted to create conditions of a safe working environment. There is an instant need to revisit the recommendation of the Justice Verma Committee to bring in the appropriate reforms.

Additionally, there is a need to impede gender discrimination in workplaces by creating awareness through legal workshops, programs, and training for both employers and employees. The guidelines of the Apex Court in recent cases must be adhered to working on Complaint Committees as well as Local Committees. Thus, there is an urgent need to improve ICCs to accelerate the voyage of social transformation and attain a just and equitable society. 

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Reviewed and Published by Astha Priya and Jeet Sinha.

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[1]K. Narmatha v. Home Secretary .W.A (MD) No. 447 of 2010.

[2]Tata Metaliks Limited, (2008 (6) Bom CR 1).

[3]Ziya Mody, 10 Judgements That Changed India189.

[4]Initiatives For Inclusion Foundation v. Union of India.