The Internal Committee (“IC”) plays a crucial role in addressing allegations of sexual harassment in the workplace. Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“POSH Act”), the IC must function as an impartial and unbiased body, ensuring that complaints of sexual harassment are investigated and resolved fairly and transparently.
Constitution of the IC under Section 4(2) of the POSH Act
Section 4(2) of the POSH Act mandates the constitution of an Internal Complaints Committee with specific requirements. The IC must consist of at least four members:
- Presiding Officer: The presiding officer must be a senior-level woman employee within the organization. If no such officer is available, the presiding officer may be chosen from another office or administrative unit within the organization. If no senior-level woman exists in these units, the presiding officer can be nominated from any other workplace of the same employer or from a different department or organization.
- Members: The IC must include at least two employees, ideally with a background in women’s rights, social work, or legal expertise.
- External Member: The IC must include an external member from a non-governmental organization (NGO) or association that focuses on women’s issues or has expertise in handling sexual harassment cases. In most cases, external members are lawyers as they are familiar with court cases and procedures.
How to choose Internal Committee
Centre 4 Posh in its research has found out that many organizations make mistakes while selecting their internal committee by appointing their (a) own legal team of lawyers as external member, or (b) external lawyers who are retainer with the organization, or (c) outside consultants of the organization. This approach is incorrect and has been disapproved by the Apex Court of India.
Several court judgments have established that an external member to IC cannot be involved with the organization in any capacity such as a lawyer who is on retainer, or panel of the organization, or having commercial understanding/engagement with the organization cannot be an external member of the IC. This is imperative as the role of an external member in the IC has to be unbiased, ethical and commercial, and being a lawyer or a panel of an organization defeat that purpose.
In this regard, a recent Supreme Court judgment in Punjab and Sind Bank v Mrs. Durgesh Kuwar[1] (“Punjab Bank Case”) has shed some light on the concerns about the independence of the external member of the IC. The Court has observed that:
“Clause (c) of Section 4(2) indicates that one member of the ICC has to be drawn from amongst a non-governmental organization or association committed to the cause of women or a person familiar with issues relating to sexual harassment. The purpose of having such a member is to ensure the presence of an independent person who can aid, advise and assist the Committee. It obviates an institutional bias. During the course of hearing, we have received a confirmation from the learned senior counsel appearing on behalf of the bank that Ms Seema Gupta was, in fact, a panel lawyer of the bank at the material time. This being the position, we see no reason or justification on the part of the bank not to accede to the request of the respondent for replacing Ms Seema Gupta with a truly independent third party having regard to the provisions of Section 4(2)(c) of the Act. This is a significant facet which goes to the root of the constitution of the ICC which was set up to enquire into the allegations which were levelled by the respondent.”
Observation of the Punjab Bank Case
In this case, Ms. Seema Gupta, external member of the IC, was also a panel advocate for the bank involved in the case and was regularly contesting cases in court involving the bank. This raised serious concerns regarding her impartiality and whether her dual role could influence the committee’s decision-making process. The connection between Ms. Seema and the bank prompted questions about potential conflicts of interest and whether her involvement could undermine the integrity of the inquiry.
To address these concerns, the Apex Court has directed the bank to replace Ms. Seema with an independent third-party member, ensuring that the IC complied with the statutory requirements outlined in Section 4(2)(c) of the POSH Act. This decision was made to maintain the integrity of the inquiry and protect the fairness of the process.
Conclusion
The Punjab Bank Case highlighted the critical importance of maintaining the independence of IC members. When a lawyer ties to the organization being investigated, their ability to remain neutral and impartial may be compromised. This situation underscores the need to ensure that IC members are free from any institutional biases or conflicts of interest.
The Supreme Court, in the Vishaka case[2] and subsequent rulings, has emphasized that the primary objective of constituting the IC is to ensure that inquiries into sexual harassment allegations remain impartial, independent, unbiased, and fair. To achieve this purpose, external members are appointed to ensure neutrality of the IC. Further, as per the POSH Act and Rules thereunder, the IC is required to adhere to the principles of natural justice while making an inquiry which also includes Rule against bias which states that ‘no person should be a judge in his own cause’. Hence, it is crucial that every IC member should be impartial and shall approach the matter with a free and fair mind.
Appointing an independent lawyer as an external member, with expertise in sexual harassment issues, is a vital safeguard for ensuring fairness in inquiries. The lawyers possess greater knowledge and understanding to carry out the quasi-judicial responsibilities of the IC. Further, they have expertise in drafting of final reports and orders and ensuring compliance with procedural requirements under the POSH Act. Their independent perspective helps in mitigating the risk of institutional biasness and conflicts of interest, thereby strengthening the integrity of the inquiry process.
[1] Punjab and Sind Bank v Mrs. Durgesh Kuwar (2020) 19 SCC 46.
[2] Vishaka and Ors v State of Rajasthan and Ors AIR 1997 SC 3011.