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Film Production Units Have To Form Internal Complaints Committee Under Posh Act : Kerala High Court Orders In Women In Cinema Commission's Plea

By Komal Kinger      Mar 20, 2022      0 Comments      1,449 Views

On March 17 , 2022 , the Kerala High Court observed that the film production units must organise an internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, generally known as the POSH Act. 

The Court also ruled that other connected organisations with more than 10 employees, such as the Film Employees Federation of Kerala (FEFKA) and the Kerala Film Chamber of Commerce, should have an Internal Complaints Committee  as required by law. 

In a Public Interest Litigation (PIL) filed by Women in Cinema Collective (WCC) for the establishment of a grievance redressal mechanism in the Association of Malayalam Movie Artists (AMMA), the body of Malayalam movie actors, the Court issued an order regarding the prevention of sexual harassment of women.

A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly also recorded that Association of Malayalam Movie Artists ( AMMA) has volunteered to constitute an Internal Complaints Committee (ICC) and added that  if AMMA constitutes an ICC as undertaken the same shall be in accordance with the provisions of the POSH Act.

 “We also make it clear that any organisations, establishments, private institutions are employing workers whether for wages or not in contemplation of the provisions of the Act, 2013 coming under the definition of employer, employee and workplace, they are duty bound to constitute an Internal Complaints Committee.”

 

DIRECTIONS PASSED BY COURT :-

  1. The production unit of each film industry is an establishment employing Actor Artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee, if they are engaging more than 10 workers, as is contemplated under the Act, 2013. 
  2. If any of the respondent organisations, apart from the political parties, are duty bound to maintain Internal Complaints Committee, if they are engaging 10 workers or more for managing the office establishments and wherein women workers are employed for wages or not. 
  3. If women workers are employed by any of the respondent organisations related to the film industry in which less than 10 workers are employed, then they are entitled to make suitable complaints to the Local Complaints Committee in accordance with the provisions contained under section 6 [1] read with Section 9 of Act, 2013 [2]
  4. Since the Association of Malayalam Movie Actors , has volunteered to appoint a committee to deal with any sexual harassment at its workplace, we record the same and accordingly to take action to notify the members of the Internal Complaints Committee, in accordance with law.

The Hon’ble Court also pointed out that the political parties, which are not having any employer-employee relationship with its members and which are not carrying on with any private venture, undertaking, enterprises, institution, establishment etc. in contemplation of a 'workplace' as defined under section 2(o)(ii) of Act, 2013 [3], are not liable to make any Internal Complaints Committee

The Hon’ble Court  requested  the film associations or organisations  to constitute a joint committee for redressal of women's complaints.

“Even though, we have clearly expressed our views with respect to the extent of obligations of the organisations coming under the provisions of Act, 2013 to form Internal Committees, we convey our desire that the organisations associated with the film industry viz., Association of Malayalam Movie Actors (AMMA), FEFKA, Kerala Film Chamber of Commerce, Kerala Film Producers Association, take steps to constitute a joint committee, by including the members of organisations registered with them in tune with the provisions of Act, 2013 to deal with sexual harassment of women, which would definitely render sufficient confidence to women Actor Artists and other employees & other workers employed by the production unit ; which would in turn protect the dignity, and make the right to life and personal liberty of the women in the film industry more meaningful and fruitful”.


BACKGROUND OF WOMEN IN CINEMA COLLECTIVE CASE 

In 2017, an established actress was subjected to a heinous incident of sexual assault in Kochi and  she courageously spoke up for justice. A collective of eighteen women from the Malayalam film industry started to come together to stand by this Survivor.

The entire episode and ensuing reactions reaffirmed the stronghold of patriarchal beliefs in the film industry highlighting the challenges faced by survivors in their course of pursuing justice. Spanning multiple generations and film disciplines, this group met up with the Chief Minister of Kerala to draw government attention on the gender-discriminatory values and unsafe practices that are rife in the film industry. Thus the Women in Cinema Collective, the first of its kind, came into existence. [4]

In the case the petitioner claims that AMMA is attempting to defend Dileep rather than protect the survivor. WCC also held a press conference in 2018 to criticise the Association's inaction against Dileep and its disrespect to the survivor's interests. Members of the WCC also stated in the news conference that they will seek other ways to resolve their issues because they have lost faith in AMMA's leadership.

The major contention  in the Public Interest Litigation was that the association had failed to establish an internal Complaints Committee/Grievance Redressal Cell, as mandated by the Supreme Court in the Vishaka case [5] and the Sexual Harassment at Workplaces (Prevention, Prohibition, and Redressal) Act 2013.

For WCC, Advocate Santhosh Mathew, assisted by Advocates Anil Sebastian Pulickel, Arun Thomas, Vijay V. Paul, Karthika Maria, and Veena Ravindran, contended that the Kerala Film Chamber of Commerce is governed by the terms of the Vishaka decision and the Act as a Society comprised of investors. As a result, they contended that it should have required all Producers registering a particular Title to form a Complaints Committee for the Project and to ensure that any complaints received by the Complaints Committee created for the Project are dealt with immediately.

A similar charges was placed against the Kerala Film Producers Association, Film Employees Federation of Kerala (FEFKA), Malayalam Cinema Technicians Association (MACTA) and the Kerala Film Distributors Association. The Association's failure to act infringes on the fundamental rights of its members, according to Articles 14, 15, 19 and 21 of the Indian Constitution. Furthermore, the WCC pointed out that the nature of the artists' work prevents them from seeking such remedy.

It has also been emphasised that the definition of "workplace" in Section 2 (o) of the Act encompasses any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, or other similar entity, and that the Vishaka guidelines and the 2013 Act apply equally to the Association.

The Kerala Women's Commission has filed an impleading application in the case, claiming that it exists solely to serve and protect the interests of women in the state.

Meanwhile, the Centre for Constitutional Rights Research and Advocacy had filed a Public Interest Litigation (PIL) seeking directions to form Internal Complaints Committees (ICC) within political parties, media, and film production houses in accordance with the Prevention of Sexual Harassment At Workplaces Act 2013.

Special Government Pleader M.R. Sreelatha, Senior Advocate K. Sreekumar, State Attorney N. Manoj Kumar, Advocates K. Manoj Chandran, S.A Mansoor, Ammu Charles, A.S. Dileep, Binod P, Susheela Dileep, P.S Murali appeared for the respondents. 

Advocates Talish Ray and Sunitha Ojha represented an in represented an intervenor Cine And TV Artistes' Association which supported WCC in the matte

 

Case Title: Women in Cinema Collective & Anr v. State of Kerala & Ors. 

Citation: [WP(C) 34273/2018
 


[1] SECTION 6 OF  THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

 Constitution and jurisdiction of 1 [Local Committee].—(1) Every District Officer shall constitute in the district concerned, a committee to be known as the “1 [Local Committee]” to receive complaints of sexual harassment from establishments where the 1 [Internal Committee] has not been constituted due to having less than ten workers or if the complaint is against the employer himself. (2) The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned 2 [Local Committee] within a period of seven days. (3) The jurisdiction of the 2 [Local Committee] shall extend to the areas of the district where it is constituted

 

[2] SECTION 9 OF  THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

 Complaint of sexual harassment.—(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident: Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing: Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period. (2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section

 

[3] Section 2 of sub clause (o) of “OF  THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

workplace” includes— 

  1. any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
  2. any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertain mental, industrial, health services or financial activities including production, supply, sale, distribution or service;
  3. hospitals or nursing homes;
  4. any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
  5. any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
  6. a dwelling place or a house;

[4] https://wccollective.org/about/

[5] Vishakha v. State of Rajasthan [(1997) 6 SCC 241] 

 



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