Progress against harassment

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Amit Wadhwa and Puneet Gupta analyze how courts are dealing with prosecutions and issues facing internal complaints committees following incidents of sexual harassment in the workplace

Under India’s legal framework, in the past incidents of sexual harassment only had criminal implications as provided under section 354 of the Indian Penal Code. Under criminal jurisprudence, the prosecution needed to prove the act beyond a reasonable doubt, along with intent to commit the offence, and that, too, after a long criminal trial; This is against the civil remedy of compensation, counselling and paid leave, along with many other provisions that address the situation holistically.

Amit Wadhwa

India signed the UN Convention on Elimination of All Forms of Discrimination back in 1992, however, for lack of legislative intent, women continued to suffer abuses in the workplace, and their potential could not be harnessed to boost the economy, polity or even the cultural fabric of India.

The plight of women came to the attention of the Supreme Court in the well-known case of Vishaka and Ors v State of Rajasthan and Ors, where the court took it upon itself to fill the legislative vacuum, and, in light of ratification of India by the above-mentioned UN convention, framed comprehensive guidelines to prevent sexual harassment in the workplace, and also provided for the establishment of an internal committee at every office and workplace.

However, the judgment and the guidelines framed within it largely remain a “dead letter”, despite various attempts by NGOs and concern groups. This was until the Supreme Court’s call for accountability of all states and autonomous bodies, 15 years after the Vishaka judgment, in the case judgment of Medha Kotwal Lele and Ors v Union of India and Ors.

Puneet Gupta

In today’s progressive atmosphere, where women employees are involved in multiple roles, it is imperative to go beyond the check-box exercise and ensure that The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), is implemented in spirit for what is expressly mandated under the act. The act is a new dawn for women’s civil rights and liberties and its strong foundation will enable inclusion and growth of women in society.

While it has been about six years since the POSH Act has been implemented, however, there are only a handful of judgments to interpret the legal provisions, their contours, implications and the underlying spirit. Here are some of the issues touched upon by the courts.

Cross-examination and witnesses. The right to cross-examine is not expressly envisaged in the POSH Act. However, the same must be given as a basic constituent under the principles of natural justice. In Ashok Kumar Singh v University of Delhi and Ors, the Delhi High Court set aside the findings of the internal complaints committee (ICC), as not only were there three reports from the body without a definite conclusion, and not conclusive of the appellant’s guilt, but also his lawyers were not given a chance to cross-examine the witnesses.

Neutral place of enquiry. There is no express provision for a place of enquiry under the POSH Act. However, applying the principle of natural justice, a neutral place of enquiry enables the complainant and witnesses to share facts without causing inconvenience to either parties, or allowing one to dominate the other. A place of enquiry that is far away from place of office or residence may discourage the complainant and witnesses from joining the enquiry, and also create an undue pressure of being far away from the ordinary place of residence, or workplace.

It is crucial for the ICC to conduct their enquiry at the nearest possible place for active and proper participation, as travelling long distances for an enquiry creates unnecessary stress for the person who has raised a voice against harassment. Such enquiries by the counterparty have been categorized as harassment in itself by the Madurai Bench of Chennai High Court, in the K Hem Lata v State of Tamil Nadu, where the complainant was called for attending an enquiry in Chennai, which was 500km away from her workplace.

The high court also pointed out that such enquiries must be conducted with the utmost sensitivity, and expressed dissatisfaction on the conduct of the authorities in conducting the enquiry in a casual manner by predetermining certain issues and disputes. It observed that the enquiry could have been conducted at the district headquarters without causing any unnecessary hardship to the complainant.

As per section 4 of the POSH Act, the ICC needs to be constituted at all the appropriate administrative units or offices, which in practical scenarios may be far away from the place of office of the complainant. Taking the lesson from the above-mentioned judgment, companies should arrange for the ICC to travel to the place of the complainant. This will also build trust among the complainant and witnesses to participate in the enquiry. A fearless and convenient participation of complainant and witnesses in an enquiry is pivotal for the ICC to come up with a fair conclusion.

Qualification of external member. The POSH Act and rules provide the qualification of external members under section 4 (2)(c), where one member is recommended to be part of the ICC from an NGO, or associations committed to the cause of women, or a person familiar with the issues relating to sexual harassment. The spirit for keeping an external member is to maintain the objectivity and independence of the ICC and to conduct a fair enquiry on the sexual harassment complaint.

In Ruchika Singh Chhabra v M/S Air France India and Anr, Delhi High Court placed emphasis on: “The objective behind the requirement of a member from non-governmental organizations or associations committed to the cause of women, or a person familiar with the issues relating to sexual harassment in the Workplace Harassment Prohibition Act, is to prevent the possibility of any undue pressure or influence from senior levels, as was laid down by the Supreme Court in the case of Vishaka.”

Similarly, in US Verma, Principal and Delhi Public School Society v National Commission for Women and Ors, it was held that the emphasis of the complaints committee procedure and its underlying premise is that the complainant is assured objectivity and neutrality in the inquiry, and is thereby insulated from the employers’ possible intrusions. To achieve that end, the requirement under law with respect to the qualification of the independent member on the ICC is an indispensable necessity for meting out justice under the POSH Act.

The Delhi High Court held the enquiry conducted by the ICC into the above-mentioned Air France matter to be invalid, as the external member failed to meet the qualifications spelled out in the POSH act. It ordered a fresh committee to be constituted as per compliance with the act.

Malicious complaint. Section 14 of the act specifically provides action to be taken against the complainant for any false or malicious complaint, to keep a check on such complaints. Malicious complaints cause irreparable loss to the respondent, but also discourage victims to come forward to raise their voice against sexual harassment. In a recent judgment by the Delhi High Court, in Anita Suresh vs Union of India and Ors, the court imposed a fine of ₹50,000 (US$699) for raising a false and malicious complaint. The complainant was found to be inconsistent in her version, and witnesses said they did not observe any incident despite the allegations of harassment taking place in the presence of colleagues.

Summary of the judicial approach. As per notable judicial trends, the courts have not interfered much with the decisions taken by the ICC on the basis of facts of the case. The litmus test is the procedural adherence to the POSH Act, service rules on a bedrock of “principles of natural justice”. So, it is crucial during any enquiry to not only follow the procedures laid out in the POSH Act and the rules, but to also address concerns raised by the complainant and respondent with sensitivity, empathy and equity.

Untouched provisions. There are some clauses yet to be interpreted by the courts, firstly on extending the time limits of three months for constitution of the ICC as per section 9(1) up to three months from the last incident of assault, and secondly for a complaint having mixed allegations of workplace harassment and sexual harassment.

Legislative voids. There are some emerging questions that are yet to find their place in the legal provisions for sexual harassment, such as whether the same should be made more gender-neutral and inclusive of the rights of LGBTQ, as society is moving at a fast pace for including every section of it within the mainstream.

Conclusion. While the act has been criticized at times for its scope of potential misuse, and for creating a gender-power imbalance, it is needed to protect the rights of working women. The act is still at a nascent stage and will gradually evolve through judicial interpretations and cases that emerge from the corporate world, government and other areas.

Amit Wadhwa is head of litigation and Puneet Gupta is head of contract at Max Life Insurance.