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India

India: The Supreme Court of India issues guidelines for proper implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Authors: Avik Biswas, Ivana Chatterjee, Devika Sreekumar

In the case of Aureliano Fernandes v. State of Goa and Others[1], the inquiry conducted by the Internal Complaints Committee (“ICC”) constituted by the Goa University (“University”) was challenged before the Bombay High Court (Goa bench) by the Appellant on the ground that the inquiry was not conducted in accordance with due process.

In this matter, the ICC had received multiple complaints of sexual harassment from the student body against Mr. Aureliano Fernandes (“Appellant”) which necessitated an inquiry. Pursuant to the inquiry, the Appellant was dismissed from the services of the University, and he was also barred from being employed by any government authority in Goa. Aggrieved by the order of the University, the Appellant filed a petition before the High Court of Bombay alleging that the ICC proceedings were violative of the principles of natural justice. The Bombay High Court ruled in favour of the University and upheld its decision. Thereafter, the Appellant challenged the decision of the Bombay High Court before the Supreme Court of India. The Apex Court delved into the nuances of the inquiry and found that there were certain procedural irregularities in it. Consequently, the Court ordered the ICC to conduct a fresh inquiry into the subject matter.

The Supreme Court also sought to take a relook at the evolution of the Vishaka guidelines, which was the preliminary law on sexual harassment at workplace in India. Thereafter, the Court laid down directions with respect to the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).

The key directives of the Court have been summarised below:

  • All the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. must constitute ICCs/Local Committees (“LCs”)/Internal Committees (“ICs”), in accordance with the POSH Act. The Court also directed that a similar exercise be undertaken by all the Statutory bodies of professionals at the National level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers, and other professionals), by universities, colleges, training centres, educational institutions and by government and private hospitals/nursing homes.
  • Necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated members, the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies must be made readily available on the website of the concerned authority/functionary/organisation/institution/body, as the case may be. This information should be updated from time to time.
  • Immediate and effective steps must be undertaken by the authorities/ managements/employers to familiarize members of the ICCs/LCs/ICs with their duties under the POSH Act.
  • The authorities/management/employers should regularly conduct orientation programmes, workshops, seminars, and awareness programmes to upskill members of the ICCs/LCs/ICs and educate female employees and women’s groups about the provisions of the POSH Act and all corresponding rules and regulations.

[1] Civil Appeal No. 2482 of 2014.

Key Action Points for Human Resources and In-house Counsel

While the Supreme Court’s instructions in this case is only specific to government authorities, it is important for commercial organizations to ensure that it is in compliance with the provisions of the POSH Act and that it conducts relevant training sessions for its employees and internal committee members. The judgement is also an important learning for the companies that in the event there are irregularities with respect to a sexual harassment inquiry, a court may order them to undertake a fresh investigation on the matter (of course keeping in mind the facts and circumstances of the case and the nature of the irregularities).