India in 2020: Tackling sexual harassment 

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This article is one of four in an annual Vantage Point series where in-house counsel identify key risks and opportunities in the year ahead

With the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (POSH Act), the legislature has cast a liability on the employer to combat sexual harassment against women in the workplace.

harassment
Kuldeep Sharma

While there are other compliances under the act for employers to follow, an important action expected on their part is to form an Internal Complaints Committee (IC) upon meeting the prescribed threshold headcount, which will take note of the complaints filed under the act, and investigate them.

This onus on the employer has proven to be a great step towards providing women employees with a working atmosphere free from discrimination, hostility and sexual harassment. But at the same time, it poses a bigger challenge for the employer to constitute not only an IC, but one that is effective and functional. When we talk about the challenges that employers, or for that matter IC members, face with regard to the due compliance of the letter and spirit of the act, there are quite a few issues.

Shortage of candidates

The first and foremost issue, which may be the biggest impediment in the constitution and functioning of the IC, is finding the right candidates to act as the presiding officer and/or internal member of the IC. This is a very sensitive and crucial piece of legislation, and the task of judging whether an offence under the act has been committed or not has been given to people who are either not competent enough to handle such a sensitive issue, or are having their own biases for parties involved.

There are many challenges for an effectively functioning IC, but below are some critical ones:

(1) As the act requires the employer to form separate ICs for separate establishments, it can become difficult to find people to be appointed as the presiding officer or members of an IC. Things get more difficult as the act prescribes criteria for appointing members that have legal knowledge, experience in social work, or commitments to the causes of women.

(2) Even if the employer is able to form ICs with available resources, the members of an IC are general business people, and adjudicating matters of this sensitivity is not easy.

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