Your Gender-Neutral IC Is In Violation Of The PoSH Act 2013; Here’s Why

Culpability; involving the commission of a fault or the breach of a duty imposed by law. Culpability generally implies that an act performed is wrong but does not involve any wrongdoer’s evil intent. This word aptly describes the intention of many organizations that formulate a gender-neutral PoSH policy, and the ensuing gender-neutral Internal Committee (IC or ICC).

Can the PoSH Policy be Gender-Neutral?

A PoSH policy can be gender-neutral (if worded appropriately), but not your IC. Here’s why.

The organization creates a PoSH policy to inform the employees about the PoSH Act 2013 and its implementation. In the same policy, the organization can state that it has zero tolerance towards Sexual Harassment of all employees. Hence, it encourages all employees to report any instances of Sexual Harassment to the IC. [not in error] This statement makes the policy gender-neutral.

However, the policy cannot make the IC gender-neutral. The IC is constituted Vide Section 4 of the PoSH Act, by an order-in-writing. And the PoSH Act is not gender-neutral, as described below.

Many ICs are Gender-Neutral. Are they legal?

No. The fact that IC cannot be gender-neutral is hiding in plain sight. The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013 (PoSH Act 2013), as the name states, is for women only, not for men or transgender people. 

The PoSH Act being for women does not mean that it is biased towards women. It isn’t biased, for the legislature enacted it to mitigate the bias against women at workplaces. 

Why does the PoSH Act 2013 protect only women?

It would not be entirely fair to say it does not protect men. It does offer protection to men by being just and reasonable in the Redressal mechanism. The PoSH Act allows an equal opportunity for hearing men as the IC is legally bound to follow the principles of natural justice. It provides for the same penalty to women in case of a false/malicious complaint.

However, it allows only women to be Complainants. Under no circumstances, this Act changes its scope to enable men to be the Complainants as well. Men can only be the Respondents and not the victims/Complainants under the PoSH Act.

Probably the reason for the PoSH Act not being gender-neutral is that historically, it is women who have faced Sexual Harassment, discrimination, and gender bias at the workplace. This vulnerability could be because men are a majority at the workplace and at senior positions within the organization. Due to our patriarchal society, men were occupying positions of power when women started joining the workforce. Being late entrants, women have not yet risen in the hierarchy as much as men, barring a few instances where women have broken the glass ceiling.

As a result, very few women occupy top positions in organizations. This scenario leaves them vulnerable to harassment and an easy target for Sexual Harassment. 

Where can a male employee file a complaint?

Male and transgender employees need to be offered the same protection as women. Not only women but transgender people are also vulnerable to Sexual Harassment. Hence, the transgender people need protection and a speedy redressal mechanism to encourage them to join the workforce with the same confidence that men and women enjoy.

In Corporate India, the male and transgender employees must file their Sexual Harassment complaints with the Disciplinary Committee (DC) or its equivalent, of the organization. The mechanism to receive and redress this type of complaint needs to be put in place by the organization. Organizations can draft their policies in a manner that these committees also have similar powers as those enjoyed by the IC.  

Can transgender women file Sexual Harassment complaints with the IC?

In 2018, the Delhi High Court had ordered the police to file a charge sheet against transgender woman’s harassers on the grounds that if a transgender person identifies herself as a woman or has a certificate from the authorities (as per the Transgender Act, 2019), they will be given the same rights as that to a woman and hence can file a criminal complaint. 

The interpretation could be that if the police have to consider a transgender woman as a woman and confer the same rights as guaranteed to a woman, the IC should also do the same.

Isn’t the IC better trained to handle Sexual Harassment complaints, as compared to the DC?

Yes, if an organization has invested time and resources into training it’s IC to investigate and handle Sexual Harassment complaints. This training is incredibly layered and nuanced and must be conducted regularly and by trained professionals. That does not mean the DC cannot be trained and equipped to handle Sexual Harassment complaints from male and transgender employees, as methodically and efficiently, as the IC. 

The PoSH Act has bestowed the IC with powers (mentioned below) to inquire into Sexual Harassment complaints. Similarly, the DC can also be vested with powers to inquire into complaints by male and transgender employees by the Service Rules of the organization. 

The PoSH Act does promise speedy redressal of complaints (within 90 days). Similarly, the DC can also be authorized to finish inquiries within 90 days, by incorporating this clause into the Service Rules/Rules and Regulations of the organization. 

Are IC and DC interchangeable?

The role of IC and DC are entirely different. DC does not have the required jurisdiction to hear Sexual Harassment complaints that may have been filed by a woman. They would be required to forward the matter to the IC. 

The DC is the only option available to men and transgender people since the PoSH Act does not offer any protection to them.  However, the DC can be trained and empowered to function as efficiently as the IC.

How does the Gender-Neutral IC violate the law?

The IC handling complaints by men and other genders violates the PoSH Act. Here is another line of reasoning;

The IC is vested with the powers of a civil court under the Code of Civil Procedure, 1908, through the PoSH Act. These powers include;

1. Summoning and enforcing the attendance of any person and examining them under oath
2. Requiring the discovery and production of documents, and
3. Any other matter which the IC may prescribe.

It is pertinent to note that IC can only exercise these powers when the victim is an “aggrieved woman” Vide Section 2 (a) of the PoSH Act.

IC cannot exercise the powers (as stated above) if the victim is a man or person of another gender. 

Hence, the question commonly asked in this argument, “Who is better trained to handle sexual harassment complaints, IC or HR?” does not merit a simple answer. HR or DC cannot take on a civil court’s powers under the PoSH Act or any other Act in force in India.

Continuing the same argument, IC cannot misuse the powers of civil court bestowed on it by the PoSH Act by extending its scope to another gender. 

Which law authorizes the IC to exercise its civil court powers for inquiring into complaints by men and other genders? The short answer is none. Given that the IC has a specific mandate under the PoSH Law to inquire into Sexual Harassment complaints of women, we strongly recommend that the IC be empowered to only hear Sexual Harassment complaints filed by women.

Isn’t it true that most organizations make their IC Gender-Neutral, including large Indian organizations and MNCs?

So we have heard! But that does not make them legal due to the reasons stated above.

Is there any Case Law on this?

There is none. But it is not required as the scope of the PoSH Act is crystal clear.

How Can Rainmaker Training help resolve this?

Rainmaker Training has been advising organizations to implement the PoSH Act in its current avatar. The IC should inquire into Sexual Harassment complaints by women only.

In addition to training your IC, Rainmaker can train your DC to handle Sexual Harassment complaints from male and other gender employees like the IC. 

Rainmaker Training can help you draft a legally correct PoSH policy that is also gender-neutral. This would also cover modifying Service Rules/Rules and Regulations governing the organization to provide similar benefits provided by the PoSH Act, namely prevention, prohibition, and speedy redressal within 90 days.

For PoSH training for employees, check out our PoSH e-module, WorkSafe DELTA trailer today. https://www.youtube.com/watch?v=3cVxAPKkGQ4

Author: Sumali Nagarajan

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