Power Dynamics and the ICC: Structural Limitations of the POSH Act

Abstract

In order to offer a prompt, civil remedy for workplace harassment, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was passed. However, this chapter argues that the statute’s foundational reliance on an “Internal” Complaints Committee (ICC) is constitutionally fragile when applied to rigid corporate hierarchies. Section 4 of the Act unintentionally establishes a structural conflict of interest that disproportionately benefits senior management by requiring that the ICC be established by the company and made up mostly of workers. This chapter presents a critical legal analysis of the “Subordinate Judge” paradox found in Section 4(2), where a Presiding Officer, despite being at a senior level, is frequently required to decide complaints against a superior or a professional peer who is a friend or who they depend on for career advancement. It asserts that the ICC is no longer a neutral tribunal but rather an extension of the employer’s defense strategy due to this infringement of the principle of Nemo iudex in causa sua, which states that no one should be a judge in their own cause. The chapter also criticizes the legislative shortcomings of having just one external member, whose disapproval can be readily overruled by the internal majority. This chapter emphasizes the Chilling Effect that unchecked management power has on the inquiry process through a qualitative analysis of recent High Court rulings where inquiry findings were struck aside because of procedural prejudice. In order to guarantee a fair trial free from workplace hierarchies, the chapter ends with a proposal for legislative changes to the POSH Act that would require the externalization of inquiry panels in cases involving top executive responders.