Friends, please find attached the Repealing and Amending Act 2016, which was notified on 9th May 2016. According to the Second Schedule to the Act (Page 14), the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013 has been amended as follows:
In Sections 6, 7, and 24:
(i) For the words "Local Complaints Committee" wherever they occur, the words "Local Committee" shall be substituted.
(ii) For the words "Internal Complaints Committee" wherever they occur, the words "Internal Committee" shall be substituted.
Thank you.
From India, Malappuram
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1446In Sections 6, 7, and 24:
(i) For the words "Local Complaints Committee" wherever they occur, the words "Local Committee" shall be substituted.
(ii) For the words "Internal Complaints Committee" wherever they occur, the words "Internal Committee" shall be substituted.
Thank you.
From India, Malappuram
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Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013 - Nomination and Role of Third Party Member in the Internal Committee
Internal Complaints Committee is mandated to be constituted under Section 4(1) of the SHWW (PPR) Act, 2013. The aims, objects, and functions of the ICC have been defined in the provisions from Section 9 to Section 15 and Section 21 of the Act. Although the Act does not explicitly specify the minimum or maximum number of members to be nominated in the ICC, provisions in Sections 4(2)(a), (b), and (c) indicate that there shall be a minimum of four (4) members in the ICC. The qualifying criteria for these four members and the basis of their nomination are described in the aforementioned Sections 4(2)(a), (b), and (c). The Chairperson/Presiding Officer of the ICC has to be a woman employee at a senior level from amongst the employees at the workplace. Two other members must also be from amongst the employees of the same workplace who should either be committed to the cause of women, experienced in the field of social work, or have legal knowledge. These three members of the ICC have to be nominated from amongst the women employees. It is most relevant to mention that the spirit of Section 4(2)(b) of the Act is that two members have to be nominated from amongst the employees of the same workplace, i.e., it does not state that these two members should be women. Therefore, there is no bar to nominating any male employee in pursuance of Section 4(2)(b) of the Act. However, it is to be noted that the qualifying criteria as specified in the section must be fulfilled.
Nomination of the fourth member is an important and critical requirement of the Act which deserves weightage in consideration by the employer. The Act prescribes in Section 4(2)(c) that “One member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.” Here, the Act contemplates involving an external member in the ICC with the stipulation that such a member should be from an NGO/Association committed to the cause of women or a person familiar with the issues of sexual harassment. If an employer opts for an NGO member, then the requirement is that such an NGO/Association should be dedicated to the cause of women. It would be most appropriate if the NGO/Association is working on issues related to women in crisis, i.e., victims of molestation, women’s exploitation at the workplace, sexual assault, and domestic violence, etc. Although there may be NGOs/Associations engaged in the field of women empowerment, i.e., upliftment of women through educational, skill development, and financial programs, etc.
Section 4(2)(c) of the Act, as an alternative to the nomination of an NGO member, stipulates that “a person familiar with the issues relating to sexual harassment” can be considered for nomination as an External Member in the ICC. Some employers/organizations think that an advocate can be nominated in the ICC as an External Member. The idea behind such thought may be that an employer considers that an advocate is a legally sound person and can guide the employer on the legal intricacies during the proceedings of inquiry by ICC. It may be that an advocate has good knowledge of pleadings of cases of sexual harassment in courts, and that they may have acquired experience in pleading such cases, but the SHWW (PPR) Act, 2013 does not specifically stipulate in Section 4(2)(c) that an external member may be an advocate. Section 4(2)(c) lays down that it should be “a person familiar with issues relating to sexual harassment.” This provision has been explained in Rule 4 of the SHWW (PPR) Rules, 2013, which elaborates on the provision of Section 4(2)(c) of the Act. Rule 4 clearly stipulates that “person familiar with the issues relating to sexual harassment” shall be a person who has expertise on issues relating to sexual harassment and may include:
(a) a social worker with at least five years of experience in the field of social work which leads to the creation of societal conditions favorable towards the empowerment of women and in particular in addressing workplace sexual harassment;
(b) a person familiar with labor, service, civil, or criminal law.
The above provisions help us to make an order of merit for considering the nomination of an External Member on ICC as under:
(1) First preference may be given to an NGO committed to the cause of women,
(2) Second preference may be given to a person working for five years in the field of social work for the empowerment of women/addressing workplace sexual harassment,
(3) Third preference may be given to a person having knowledge of labor laws or service law,
(4) Fourth preference may be given to a person familiar with civil or criminal law.
Thus, we see that the law does not specifically mention the nomination of an advocate on ICC. However, it stipulates that a person familiar with civil or criminal law can be considered for nomination as an External Member. There is no specific denial of the nomination of an advocate on ICC, as Rule 4(b) of the SHWW (PPR) Rules, 2013 elaborates on the nomination of a person familiar with civil or criminal law as a last option. Therefore, it may be advisable in the interest of fair and transparent administration of justice that an External Member may be nominated according to Rule 4 of the SHWW (PPR) Rules, 2013, which hands over an order of merit for the nomination of a third-party member as discussed above.
In addition to the above facts, a reference to guidelines and norms prescribed by the Hon’ble Supreme Court of India in the case of Vishaka & Others vs. State of Rajasthan & Others (AIR 1977 SC 3011) shows with reference to the constitution of Complaints Committee that “Further, to prevent the possibility of any undue pressure or influence from senior level, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.” Here we find that the historical judgment forming the basis of legislation of SHWW (PPR) Act, 2013, also envisaged the issues relating to the constitution of ICC and involvement of a third-party member on the Committee. The Hon’ble Supreme Court has clearly prescribed that a third party (i.e., an external member) should be either from an NGO or from another body. Here also, the Hon’ble Supreme Court has given preference to a member of an NGO or other body rather than an advocate.
Having discussed the spirit of the judgment of Vishakha guidelines, it is clear that the nomination of a third-party member is an important factor in the constitution of an ICC as enshrined in the SHWW (PPR) Act, 2013. The External Member has to be nominated from the initial stage of the constitution of an ICC. In some cases, it was seen that the name of the External Member was not notified in the order at the stage of the constitution of ICC, but it was left open to the ICC to adopt any member as and when required by it. It is emphasized that such an order is not in accordance with the provisions of the Act, and it would make the order invalid. The law has conferred the powers of nomination of members on the employer, and not to anyone else. This gives a prudent conclusion that statutory powers conferred upon an employer cannot be delegated to any other Committee or to an officer of the employer. Therefore, it is an important factor to be borne in mind that all the members of the ICC, including the Chairperson and the External Member, have to be nominated by the employer at the time of issuing the order.
The role of the third-party External Member has also been provided in the Act as it mandates in Section 4(2)(c). Although the Act does not elaborate on the responsibilities of an External Member, the preamble to the Act refers to the case of Vishaka vs. State of Rajasthan which defines the role of such an External Member. The Hon’ble Supreme Court of India in the Vishaka case decided the guidelines to serve as law under Article 32 of the Constitution and enshrined the provision of the third party “To prevent the possibility of any undue pressure or influence from senior levels.” It is thus evident that an External Member has to guard against the exercise of any undue pressure or influence during inquiry and in the inquiry report as well. They also have to guard against undue pressure/influence that may be exercised from a committee member or the Presiding Officer/Chairperson herself. It is further needless to mention that an External Member also has to see that proceedings of inquiry are conducted in accordance with the procedure prescribed in the service rules applicable to the respondent/accused employee.
It is thus evident that the law has cast greater responsibility both upon the employer and upon the External Member for the fair implementation of the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. An employer has to exercise careful discretion in the choice of nomination of an External Member, and the External Member has to fairly comply with the onus imposed upon them by the Act in light of the milestone judgment in the Vishaka case handed over by the Hon’ble Supreme Court of India.
Regards, C.M. Lal Srivastava
From India, New Delhi
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Internal Complaints Committee is mandated to be constituted under Section 4(1) of the SHWW (PPR) Act, 2013. The aims, objects, and functions of the ICC have been defined in the provisions from Section 9 to Section 15 and Section 21 of the Act. Although the Act does not explicitly specify the minimum or maximum number of members to be nominated in the ICC, provisions in Sections 4(2)(a), (b), and (c) indicate that there shall be a minimum of four (4) members in the ICC. The qualifying criteria for these four members and the basis of their nomination are described in the aforementioned Sections 4(2)(a), (b), and (c). The Chairperson/Presiding Officer of the ICC has to be a woman employee at a senior level from amongst the employees at the workplace. Two other members must also be from amongst the employees of the same workplace who should either be committed to the cause of women, experienced in the field of social work, or have legal knowledge. These three members of the ICC have to be nominated from amongst the women employees. It is most relevant to mention that the spirit of Section 4(2)(b) of the Act is that two members have to be nominated from amongst the employees of the same workplace, i.e., it does not state that these two members should be women. Therefore, there is no bar to nominating any male employee in pursuance of Section 4(2)(b) of the Act. However, it is to be noted that the qualifying criteria as specified in the section must be fulfilled.
Nomination of the fourth member is an important and critical requirement of the Act which deserves weightage in consideration by the employer. The Act prescribes in Section 4(2)(c) that “One member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.” Here, the Act contemplates involving an external member in the ICC with the stipulation that such a member should be from an NGO/Association committed to the cause of women or a person familiar with the issues of sexual harassment. If an employer opts for an NGO member, then the requirement is that such an NGO/Association should be dedicated to the cause of women. It would be most appropriate if the NGO/Association is working on issues related to women in crisis, i.e., victims of molestation, women’s exploitation at the workplace, sexual assault, and domestic violence, etc. Although there may be NGOs/Associations engaged in the field of women empowerment, i.e., upliftment of women through educational, skill development, and financial programs, etc.
Section 4(2)(c) of the Act, as an alternative to the nomination of an NGO member, stipulates that “a person familiar with the issues relating to sexual harassment” can be considered for nomination as an External Member in the ICC. Some employers/organizations think that an advocate can be nominated in the ICC as an External Member. The idea behind such thought may be that an employer considers that an advocate is a legally sound person and can guide the employer on the legal intricacies during the proceedings of inquiry by ICC. It may be that an advocate has good knowledge of pleadings of cases of sexual harassment in courts, and that they may have acquired experience in pleading such cases, but the SHWW (PPR) Act, 2013 does not specifically stipulate in Section 4(2)(c) that an external member may be an advocate. Section 4(2)(c) lays down that it should be “a person familiar with issues relating to sexual harassment.” This provision has been explained in Rule 4 of the SHWW (PPR) Rules, 2013, which elaborates on the provision of Section 4(2)(c) of the Act. Rule 4 clearly stipulates that “person familiar with the issues relating to sexual harassment” shall be a person who has expertise on issues relating to sexual harassment and may include:
(a) a social worker with at least five years of experience in the field of social work which leads to the creation of societal conditions favorable towards the empowerment of women and in particular in addressing workplace sexual harassment;
(b) a person familiar with labor, service, civil, or criminal law.
The above provisions help us to make an order of merit for considering the nomination of an External Member on ICC as under:
(1) First preference may be given to an NGO committed to the cause of women,
(2) Second preference may be given to a person working for five years in the field of social work for the empowerment of women/addressing workplace sexual harassment,
(3) Third preference may be given to a person having knowledge of labor laws or service law,
(4) Fourth preference may be given to a person familiar with civil or criminal law.
Thus, we see that the law does not specifically mention the nomination of an advocate on ICC. However, it stipulates that a person familiar with civil or criminal law can be considered for nomination as an External Member. There is no specific denial of the nomination of an advocate on ICC, as Rule 4(b) of the SHWW (PPR) Rules, 2013 elaborates on the nomination of a person familiar with civil or criminal law as a last option. Therefore, it may be advisable in the interest of fair and transparent administration of justice that an External Member may be nominated according to Rule 4 of the SHWW (PPR) Rules, 2013, which hands over an order of merit for the nomination of a third-party member as discussed above.
In addition to the above facts, a reference to guidelines and norms prescribed by the Hon’ble Supreme Court of India in the case of Vishaka & Others vs. State of Rajasthan & Others (AIR 1977 SC 3011) shows with reference to the constitution of Complaints Committee that “Further, to prevent the possibility of any undue pressure or influence from senior level, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.” Here we find that the historical judgment forming the basis of legislation of SHWW (PPR) Act, 2013, also envisaged the issues relating to the constitution of ICC and involvement of a third-party member on the Committee. The Hon’ble Supreme Court has clearly prescribed that a third party (i.e., an external member) should be either from an NGO or from another body. Here also, the Hon’ble Supreme Court has given preference to a member of an NGO or other body rather than an advocate.
Having discussed the spirit of the judgment of Vishakha guidelines, it is clear that the nomination of a third-party member is an important factor in the constitution of an ICC as enshrined in the SHWW (PPR) Act, 2013. The External Member has to be nominated from the initial stage of the constitution of an ICC. In some cases, it was seen that the name of the External Member was not notified in the order at the stage of the constitution of ICC, but it was left open to the ICC to adopt any member as and when required by it. It is emphasized that such an order is not in accordance with the provisions of the Act, and it would make the order invalid. The law has conferred the powers of nomination of members on the employer, and not to anyone else. This gives a prudent conclusion that statutory powers conferred upon an employer cannot be delegated to any other Committee or to an officer of the employer. Therefore, it is an important factor to be borne in mind that all the members of the ICC, including the Chairperson and the External Member, have to be nominated by the employer at the time of issuing the order.
The role of the third-party External Member has also been provided in the Act as it mandates in Section 4(2)(c). Although the Act does not elaborate on the responsibilities of an External Member, the preamble to the Act refers to the case of Vishaka vs. State of Rajasthan which defines the role of such an External Member. The Hon’ble Supreme Court of India in the Vishaka case decided the guidelines to serve as law under Article 32 of the Constitution and enshrined the provision of the third party “To prevent the possibility of any undue pressure or influence from senior levels.” It is thus evident that an External Member has to guard against the exercise of any undue pressure or influence during inquiry and in the inquiry report as well. They also have to guard against undue pressure/influence that may be exercised from a committee member or the Presiding Officer/Chairperson herself. It is further needless to mention that an External Member also has to see that proceedings of inquiry are conducted in accordance with the procedure prescribed in the service rules applicable to the respondent/accused employee.
It is thus evident that the law has cast greater responsibility both upon the employer and upon the External Member for the fair implementation of the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. An employer has to exercise careful discretion in the choice of nomination of an External Member, and the External Member has to fairly comply with the onus imposed upon them by the Act in light of the milestone judgment in the Vishaka case handed over by the Hon’ble Supreme Court of India.
Regards, C.M. Lal Srivastava
From India, New Delhi
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Could anyone enlighten me, please, as to the form in which the Annual Report should be prepared and the authority to whom it is to be filed under Section 21 of the S.H.W. (PPR) Act, 2013 by the private sector? It is to be submitted to the employer only by the ICC.
How does this Act become applicable to an organization? It is applicable regardless of the number of women employees employed in the company. I request clarification on these points.
Samir Kr. Bhattacharya Consultant - HR & IR.
From India, Calcutta
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How does this Act become applicable to an organization? It is applicable regardless of the number of women employees employed in the company. I request clarification on these points.
Samir Kr. Bhattacharya Consultant - HR & IR.
From India, Calcutta
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Sexual harassment act.pdf
Membership of the Internal Complaints Committee.docx