Internal Committee: Most Common Questions on Constitution & Composition
The Internal Committee (“IC” or erstwhile known as Internal Complaints Committee / “ICC”) is a body, which has been mandated under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act & Rules, 2013 (“Law”), to redress complaints of sexual harassment within organizations. This is applicable to organizations of all kinds (be it companies in the public or private sector, ministries, institutions, trusts, societies and even academic institutions etc.), having 10 or more employees in any location. In spite of the fact that several discussions are happening with respect to the Law, however, still many misconceptions about the IC members and its formation exist. Therefore, in this article, I am seeking to clarify some of the most commonly asked questions which I have come across.
- IC members do not have any powers, what can they do? As per Law, an IC has been accorded the powers of a Civil Court (for calling witnesses and documents) along with other numerous powers and responsibilities. While it may not seem a lot when merely the words are looked at, however, upon practical application, these powers are very broad and important. Also, given that it has powers of a Civil Court to that extent, it means that IC can ask for presence of individuals and documents with full authority and take measures and actions if its requests are not followed. It must also be noted that with power comes great responsibility. Hence, IC members must go through trainings regularly to ensure that they use their powers in the right way and understand their responsibilities clearly. In fact organization heads, Human Resources (“HR”), management personnel etc. must also go through some programs to understand powers and responsibilities of IC members so that the functioning within the organization can be smooth.
- IC needs to be registered mandatorily with the Government? The Law does not state that IC has to be registered with Government mandatorily. However, depending upon State government notifications, it may be required to be done. Depending upon where the offices are located (districts) and the number of employees, IC may have to be registered with the government in those States in which notifications have been passed. As of now, notifications have been passed in Telangana and Maharashtra
- IC can have only 4 IC members? The Law states that IC should have at least 4 members. It has a requirement of a minimum number but not the maximum. Hence, depending upon the size of the organization, number of offices and administrative units, the number of employees in each location etc., the number of IC members can be increased as well. I also want to point out that, while making an IC, due care should be taken. On grounds of confidentiality (mandatory by Law), the number should not be too high without any purpose. If there is no requirement or need of many IC members, having many of them can be avoided so that only the few people who are on the IC become aware of any complaint. Please also note that for any inquiry related meeting, the minimum quorum for Inquiry proceedings is 3 IC members, including the Presiding Officer PO. The IC holds Term for 3 years.
- A group of companies can jointly have one IC? As per Law, each separate legal entity is required to have an IC. In my view if this is challenged in courts, joint ICs may not be considered as valid by courts.
- IC should have 51% women in its constitution? The Law states that at least half of the IC must include female members. Many organizations choose to have more women than men, but that is not a statutory requirement. So, if there are 4 members in IC (which is the minimum requirement for a valid IC constitution), at least two members must be women (which must include the Presiding Officer who has to be a senior woman employee). While the Law states the minimum number as 4, it does not prescribe on a maximum number. Hence, if there are 5 members in the IC, 3 IC members can be women, and so on.
- Is IC training really required? IC training is a very thorough process, and the more you learn, the more questions you have and the more clarifications you need. This duration usually ranges from 2 hours to 2 days to 2 weeks to even a month! with a refresher every quarter, or every 6 months! Needless to say, for the very first training for IC members, having a training of about one day may be a good idea. After all, an IC has a great responsibility and lives and careers of employees may depend on hat they decide. Hence, even a single mistake can lead to grave losses, to all parties involved including the complainants, respondents and the Employer. I would like to take the example of the widely reported Genpact case in December 2018, here, which led to the suspension and suicide of an employee (even though right now given the pendency of the case, it is not clear whether the organization was at fault). Though the IC was not held directly responsible, one can see how valuable an IC’s role is, since the Employer takes action on the recommendation given by the IC. For the IC to be responsible while deciding on recommendations, Interim Measures (Action during pendency of Inquiry), and during the inquiry process itself, which tends to get complicated given the unique nature of each complaint, the IC needs to be very thoroughly trained, and this takes days, and regular refresher courses are required from time to time. The IC training should be done by trained professionals who are experts in this sphere, with the necessary qualifications and relevant experience of handling complaints as required by provisions of Law. It is important for us as IC members to take note of instances like these and ensure that we do the right job else we may impact someone’s life in a very negative manner. Regular trainings really help in this regard.
- HR cannot be on the IC? The Law does not say that HR members cannot be in the IC or be the Presiding Officer (“PO”) of the IC. A PO as per Law is required to be a senior woman ‘Employee’ in the organization. So do the other members. Hence, if a member of the HR is in the IC, and such HR is an ‘Employee’ as per the Law, it will not be unjustified. – By Sumali Nagarajan, Associate, POSH at Work