Despite a decade since the notification of the Prevention of Sexual Harassment of Women at Workplace Act, 2013 (“POSH Act”) was passed, the status of its effectiveness and comprehensive implementation appears to be an unfulfilled aspiration. The Supreme Court of India recently, in Aureliano Fernandes v. State of Goa, has once again stirred the still water of compliance by calling for a mandatory district-wise survey across the nation with respect to compliance under the POSH Act. Among other notable measures, the Supreme Court has directed the District Officers to verify each employer’s compliance towards constituting an Internal Complaints Committee (“ICC”) and displaying statutory notices about the penal consequences of sexual harassment at workplace. In fact, this case has become a continuing mandamus by way of which the Supreme Court aims to ensure systematic enforcement of the POSH Act across all public and private sectors.
It is now pertinent to examine whether the mere constitution of an ICC at the workplace and its conspicuous publication within the organisation are sufficient to fulfil the objectives of the POSH Act?
There are plethora of judicial pronouncements which highlight that equal impetus should be given to the procedure followed by the ICC during its inquiry, to ensure complete compliance under the POSH Act. More importantly, the inquiry should be fair and must follow the principles of natural justice [Rule 7(4) of POSH Rules]. However, the rules and guidelines framed under the POSH Act to outline the standard practices for ensuring the principles of natural justice are not exhaustive.
Hence, it would be sensible to adopt the below best practices, determined based on the past recommendation/direction of different courts, to ensure that the ICC’s inquiries are impeccable and ensures balance between the legal rights and interests of both the complainant and the accused, and upholds the noble objectives of the POSH Act.