Sexual Harassment At Work : Supreme Court Reveals PIL Seeking Tenure & Protection For ICC members in private workplaces

Last Updated on December 6, 2024 by Arti Kumari

Today, the Supreme Court sent notice in a public interest case that seeks tenure security and retaliation protection for members of internal complaints committees in private workplaces that were established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

The National Commission for Women, the Ministry of Corporate Affairs, and the Ministry of Women and Child Development were asked to respond to the order, which was issued by a bench comprising Justices Surya Kant and Ujjal Bhuyan.

In his appearance, advocate Abha Singh argued on behalf of the petitioners, pointing out that the matter at hand is delicate. She added that one of the petitioners has firsthand knowledge of the difficulties experienced by ICC members in private enterprises, having served as the ICC Chairperson herself.

Olga Tellis, a retired journalist, and Janaki Chaudhry, a former member of the ICC committee, filed the PIL, arguing that women members of the ICC in the private sector are not entitled to the same degree of protection and tenure security enjoyed by ICC members in the public sector.

According to the statement, ICC members may be fired from their positions (with up to three months’ pay) without cause if a decision is made that deviates from the wishes of senior management. This is because ICC members are responsible for resolving sexual harassment complaints while working for a company.

“This creates a serious conflict of interest and constraints for the ICC members from taking free, fair and impartial decisions…if they take a decision that goes against the will of the senior management, they are susceptible to victimization and retaliation, such as unfair termination and demotion.”

The plea notes that the Bombay High Court and the Supreme Court have also received PILs requesting comparable reliefs. The petition before the Supreme Court was dismissed with the remark that the petitioner’s petition be regarded as a representation to the respondent-authorities, while the one before the Bombay High Court was withdrawn because the High Court believed it lacked the authority to grant the reliefs.

As per the petitioners, after the said order was passed in the earlier PIL, they made all endeavors to draw the attention of the Ministry of Women and Child Development towards the lacuna in the 2013 Act and the urgency of the situation. However, the Ministry took no steps.

It is further the petitioners’ argument that private sector ICC members have no recourse to the principles of natural justice, nor can they challenge their dismissal (on account of decisions taken) in an appropriate forum.

Hire and fire’ is one of the fundamental principles of the ‘Master-Servant’ relationship. If an ICC member’s actions upset the upper echelons of a private company, the company may choose to simply terminate her on grounds that may not be related to her performance of her duties under the SHWW Act. In the private sector, an employee who has been terminated from service has no recourse other than the right to three months’ salary or severance, as the case may be.

In their petition, the petitioners also made certain recommendations that could be implemented.

Grounds elevated

Among the reasons cited by the petitioners are:

(i) In carrying out their responsibilities under the 2013 Act, ICC members ought to be regarded as individuals exercising judicial authority;

(ii) In contrast to their counterparts in the public sector, members of the private sector ICC are subject to termination at the employer’s discretion. There is no logical connection between establishing differing requirements for ICC members in the public and private sectors and accomplishing the Act’s goal of establishing safe workspaces, and private sector members are more vulnerable [Article 14 violation];

(iii) When ICC members are asked to make choices against seniors while working for the company, the risk of retaliation against them in the form of transfers, terminations, or victimization in unrelated areas of work undermines the goals of the 2013 Act;

(iv) Despite acting with the same authority as a “Judge” as defined by the CrPC, ICC members lack a grievance redressal process;

(v) A private employee should be entitled to the same protections as public officials, including immunity from arbitrary termination, since they perform public functions under the 2013 Act;

(vi) According to Article 21, the right to a safe workplace is a basic one. In addition to victims of sexual harassment, ICC officials also have the right to a safe workplace. ICC members are unable to feel safe at work because they fear harassment, threats, falling out with management, etc. [Violation of Article 19(1)(g)]

(vii) There have been cases in recent years where there has been a perceived urgent need for ICC in a number of sectors (e.g., the Wrestling Federation of India). The obligations, burdens, and difficulties faced by ICC members will only increase in the future.

Reliefs sought

(i) Direction to Ministry of Women and Child Development to (a) protect the service conditions of ICC members so as to secure their independence, (b) to declare that ICC members are public servants and have the same protection as their counterparts in public sector, (c) to declare that the service conditions of ICC members are protected from arbitrary and retaliatory termination, and (d) to direct state governments to setup External Grievance Redressal Committee to address the grievances of ICC members and conduct periodic appraisals of the performance of ICCs;

(ii) Order for the formation of a Commission to examine the shortcomings of the Sexual Harassment of Women at Workplace Act and provide prompt recommendations for the protection of ICC members on two matters: (a) ICC members’ rights, especially in the private sector, and (b) ICC members’ protection from harassment and persecution;

(iii) Instruction to all private organizations and corporations to notify their appropriate Local Complaints Committee and the National Commission for Women of any negative action taken against any ICC members;

(iv) Instruction to the National Commission for Women to regularly monitor the SHWW Act’s implementation and step in when necessary when an ICC member’s employer seeks to terminate their employment while they are still employed or within five years of the end of their employment, if an adverse order has been issued against them.

Case Title: JANAKI CHAUDHRY AND ANR. Versus MINISTRY OF WOMEN AND CHILD DEVELOPMENT AND ORS., W.P.(C) No. 796/2024