“To wit, time taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constitute an appalling conglomeration of undignified treatment and violation of the fundamental rights of the petitioner, more particularly Articles 14 and 21 of the Constitution.”
Many employers and organisations view the scope of the POSH Act as limited to setting up of an ICC, turning a blind eye towards the timely redressal of complaints, sensitisation of workforce, and creating a responsive and harassment-free space for all employees.
The Supreme Court bursting this bubble recently in the case of Nisha Priya Bhatia v/s. Union Of India and Ors. expounded upon the scheme of the Vishaka Guidelines. In this case, the aggrieved suffered severely on account of the delayed and improper constitution of the Internal Committee by her department to inquire into her complaint of sexual harassment against two senior employees, because of which she attempted suicide at the PM Office, leading to the PMO constituting a committee to look into the complaint of sexual harassment. The court awarded compensation to the tune of one lakh rupees to the appellant, as a relief for the inordinate delay of three months in setting up of an IC, improper constitution without a third member, re-constitution with an unqualified third member and a resultant ex-parte order which was later looked into by the committee set up by the PMO.
Facts of the case
The aggrieved, an employee of the R&AW, had complained of facing sexual harassment at the hands of two senior employees.Despite her repeated requests, the first Complaints Committee was constituted after a long delay of three months since her complaint, even then improperly; without having any external member on board. On account of this impropriety, it was re-constituted with an external member Ms. X, a key position holder at the National Security Council Secretariat. Even then the problem was not solved. Although she was a member external to the organisation, whether she fulfilled the additional qualifications needed for an external member were still doubtful. About this, the committee which was later set up by the PMO to investigate the matter noted-
“It is not clear in what manner Ms. X qualified to represent an NGO or anybody familiar with the issue of sexual harassment. So even at this stage, it was not a Committee constituted in accordance with the Vishakha guidelines.”
The Internal Committee of which Ms. X was the external member, never saw any representations from the aggrieved, because she raised various objections on the propriety of the constitution of the Committee. The result was an ex-parte verdict by the IC which led to a clean chit being given to the accused persons. Though the alleged sexual harassment which was the main bone of contention in the entire litigation was decided against the complainant, the Supreme Court in this important judgment went ahead to award exemplary compensation on account of delayed and yet improper adjudication of her harassment complaint. The Supreme Court here made a very strong point; much before the obligation of setting up or inquiring a sexual harassment complaint, it is the duty of an employer to create a safe workspace, conducive and sensitive to the red flags of deviant sexual behaviour.
Takeaways from the case; a holistic reading of POSH, VISHAKA, and CEDAW
In making us understand the scheme of the POSH Act properly the Court traces its origins to CEDAW.
“The scheme of the 2013 Act, Vishaka Guidelines and Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) predicates that a nonhostile working environment is the basic limb of a dignified employment”
The Court says that the POSH Act and the CEDAW are not only limited to inquiring into complaints of sexual harassment against employees but also for ensuring responsiveness to instances wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude, and humiliation in day to day functioning at the workplace
This case highlights, the need for timely constitution of IC and additionally, the importance of having an external member on board for which you can also read a dedicated article on our blog titled “Choosing The Right External Member For Your Internal Complaints Committee under POSH”.
You can access the full judgment here.
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