Supreme Court Issues Notice On Petition Seeking Immunity For Internal Complaints Committees In Private Companies

The Supreme Court today issued notice to the Union Government on a petition seeking protection for Internal Complaints Committee (ICC) members in private companies against arbitrary and retaliatory actions for the decisions taken while conducting inquiries on complaints of sexual harassment at workplace.

The Court was hearing a Public Interest Litigation petition that urges the Court's attention to the fact that ICC members in private companies do not possess any safeguards against retaliatory actions for their decisions. This is unlike the situation for public sector ICC members who are provided a fixed tenure and protection from arbitrary termination, among other things. This "arbitrary classification,", the Petitioners say, goes against the guarantee of equality under Article 14 of the Constitution. 

After a brief hearing, a two-Judge Bench comprising Justice Surya Kant and Justice Ujjal Bhuyan issued notice to the Ministry of Women and Child Development, the Ministry of Corporate Affairs and the National Commission for Women.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 mandates the constitution of an ICC at every workplace with more than ten workers.

The Petitioners, who were represented by Advocate Abha Singh today, highlight that by the very nature of the task entrusted to ICC members, who are provided the powers of a Civil Court for the purpose of inquiry, they take decisions that may not favour the senior management of the company. This makes them susceptible to victimisation and retaliation, such as unfair termination and demotion, the Petitioners contend.

"[W]hile the SHWW Act seeks to provide a safe environment for victims of sexual harassment, it overlooks the safety of ICC Members. The Act fails to address the vulnerability of ICC Members to undue harassment or pressure by senior officials in the workplace." the Petitioners have submitted, calling the discrepancy a violation of the implied right to safe environment under Article 21, and impinges their right to practice the profession of their choice under Article 19(1)(g).

The Petitioners before the Court are Janaki Chaudhry, a former corporate executive who headed a prevention of sexual harassment committee at her former workplace and retired journalist Olga Tellis, who says she is privy to the challenges faced by women members of ICCs in the private sector.

The Petition, drafted by Advocates Munawwar Naseem and Abha Singh, notes that under Section 11(3) of the Act, ICCs are vested with the same powers of a Civil Court for the purpose of making an inquiry, and can summon any person and require the discovery and production of documents.

However, on account of the lack of protections against arbitrary action, the possibility of members acting without fear or favour is diminished, the Petition argues. "Thus an anomalous situation has arisen where ICC members have been conferred quasi-judicial powers without the requisite independence and safeguards."

The petition also notes that neither the Act nor the Rules framed under it provide any security for the tenure of Protection of Sexual Harassment officers in the private sector. The Act only prescribes a maximum three-year tenure for POSH Officers, with no minimum tenure prescribed. It submits that the Act has not established any grievance redressal mechanism for addressing any issues that the members of the ICC may face during their tenure.

The Petitioners have prayed for a Writ of mandamus to the Ministry of Women and Child Development protect the service conditions of ICC members, to direct the Ministry to declare all ICC members as public servants, to create a commission to review the Act and to direct the Ministry to set up an external redressal committee to address the grievances of ICC members.

In April 2022, Chaudhry, the first Petitioner, had filed a PIL in the Bombay High Court seeking the same relief, but withdrew it after the Court "felt that they did not possess the jurisdiction to issue directions or grant the reliefs that were sought by the Petitioners," the petition notes.

Chaudhry and Tellis then filed a Writ Petition in the Supreme Court, which granted them liberty to approach the relevant authorities. "The present writ petition would be treated as a representation to the respondent authorities. In case the petitioners feel that grievance persists and requires legal redressal, it will be open to them to take recourse to appropriate remedy in accordance with law." the Court said in its April 13, 2023 Order.

The Petitioners say they then approached the Secretary, Ministry in May, but did not receive an immediate response. Only after a reminder, a meeting was organised with Ministry officials where it was assured to the Petitioner's legal representative that they would form a committee within three months to scrutinise the anomalies in the Act. This, they say, was never constituted.

Cause Title: Janaki Chaudhry & Anr. v. Ministry of Women And Child Development & Ors. [W.P.(C) 796/2024 PIL-W]