Background
The Parliament took 16 years to implement the directions issued by the Supreme Court of India in 1997, in the landmark case of Visakha vs. State of Rajasthan[1] (“Visakha Guidelines”) to enact a law for the prevention of sexual harassment of women at the workplace. The enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”) was very late, but better so than never.
A distinguishing feature of the legislative scheme under the Act is that the lawmakers have consciously decided not to impose the new jurisdiction on an already burdened judicial infrastructure. Rather, the Act provided for the setting up of an Internal Complaints Committee (“IC”) at every workplace for the purpose of receiving and inquiring into complaints of sexual harassment by following the processes prescribed under the Act and the Rules. The Indian Penal Code (“IPC”) was simultaneously amended by inserting Section 354A to make sexual harassment a criminal offence.
Unfortunately, even after a decade since the enactment of the Act, several drafting lacunae continue to exist both in the Act and the Rules. This has made the task of the IC very challenging. In this article, the authors provide an overview of the legislative scheme under the Act and the Rules and highlight aspects where legislative clarity is required.
The definition of sexual harassment is similar in the Act and the IPC, though the period of limitation is different. Under the Act, the limitation period for filing a complaint with the IC is three months from the date of the incident. Whereas, for cognizance of a complaint by a Court under Section 354A of the IPC, the limitation period is three years from the date of the incident, as provided under Section 468 of the Code of Criminal Procedure, 1973 (“CrPC”).
The Act allows for parallel proceedings under the Act and the IPC, though such parallel investigations come with their own set of challenges. There are possibilities that the same witnesses may give completely different versions of the event(s) before the IC and the police.
This would require the IC to go strictly by the evidence recorded by it and not get influenced by the parallel criminal proceedings, if any. However, this won’t excuse the IC from cooperating with the police’s investigation, and to provide any document they demand under Section 91 of the CrPC.
Legislative Scheme
Under the Act, an ‘aggrieved woman’ is a woman of any age, whether employed or not, alleged to have been subjected to the act of sexual harassment. The definitions of ‘employer’ and ‘workplace’ under the Act are wide enough to cover every possible organisation and workplace in the private and public sectors. In Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Ors[2]., it was also clarified that sexual harassment allegations under the Act are maintainable against an individual of the same gender as well.
The Act mandates every organisation to constitute at least a four-member IC, of which, one person needs to be the Presiding Officer and one person must be an external member from a non-governmental organisation, who is familiar with issues relating to sexual harassment and has at least five years of experience in social work. The purpose of the external member is to ensure an independent person is available to assist, advice and aide the IC, as clarified by the Supreme Court (“SC”) in Punjab and Sind Bank and Ors. v. Durgesh Kuwar.[3] Further, the Presiding Officer is required to be a woman working at a senior level and at least 50% of the IC members should be women.
However, it is advisable to constitute an IC with five members in order to avoid a situation of a tie/deadlock in case of differences of opinion. It is also advisable to include two external members in the IC, with at least one member having a legal/judicial background. As per the Rules, the quorum of the IC should be a minimum of three members, including the Presiding Officer. Strangely, there is no mandatory requirement for an external member to be present at the IC meeting to constitute the quorum, nor is there a requirement for the quorum to have women members in majority.
There is no clarity in the Act/ Rules, whether the IC Report has to be unanimous, or on the basis of majority. This is a vital legislative ambiguity which requires immediate clarification. Until the Act/ Rules is amended, a view can be taken that the legislative intent cannot be to create a deadlock situation in case of differences of opinion.
The Act gives the IC the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (“CPC”), limited to summoning and production of documents.
As per the Rules, the IC is required to adhere to the principles of natural justice while making an inquiry. Below are a fewprinciples ofnatural justice that need to be followed:
a) Rule against bias
In consonance with the principle that ‘no person should be a judge in his own cause’ – An IC member should be impartial and shall approach the matter with a free and fair mind. Ideally, a person who is a witness or is interested in the complaint in any manner should not be an IC member.
b) Audi alteram partem
Both the complainant and the delinquent should be given reasonable and fair opportunity of being heard, along with due notice of the inquiry.
The principles of natural justice are critical in order to come to a just conclusion, especially when the adjudication is done by a quasi-judicial body. However, in many circumstances, the IC members do not have any legal background, and therefore, lack adequate experience to undertake such inquiries. The Act and the Rules themselves lack clarity and aren’t descriptive enough for a reasonable man to carry out quasi-judicial functions.
Hence, it is critical that adequate training is provided to the IC members – to enable them to duly discharge their responsibilities specified under the Act. This requirement of training has also been emphasised by the judiciary time and again[4].
Since the enactment of the Act, the judiciary has laid down certain important principles, that have aided in the interpretation of the Act and have facilitated its implementation.
In Rashi v. Union of India and Another[5], the Delhi HC clarified certain requirements that need to be followed by the IC regarding its constitution and functioning:
- IC members must be impartial i.e. they should not have any personal knowledge or interest in the case or be connected to the case in any manner;
- IC members should not have conflict with any of the parties involved;
- IC members ought to possess blemish-less credentials;
- An independent person should be someone external and cannot, for example, be the panel lawyer of a bank where the Complainant and the Respondent are employees of the bank;
- There should be no undue pressure and influence on the IC from senior levels;
- Principles of natural justice should be followed scrupulously; and
- The Visakha Guidelines should continue to guide the IC and should be followed rigorously.
The SC in Delhi University & Anr. v. Bidyug Chakraborty and Ors.[6] reiterated the importance of privacy of the witnesses’ identity in sexual harassment cases. On the other hand, the Delhi HC in Ashok Kumar Singh v. University of Delhi & Ors[7] laid down a detailed procedure to allow fair opportunity to the delinquent to cross-examine the witnesses while maintaining their identity confidential. The procedure is as follows:
- The delinquent should be allowed to cross-examine the witnesses of the complainant through a questionnaire, which shall be submitted to the IC at the time when they are produced for cross-examination;
- The witnesses shall answer the questionnaire in the presence of the IC;
- Both the parties shall not be present at the time when the cross-examination of the witnesses of the complainant is being recorded;
- IC shall endeavour to ensure that the witnesses who are being cross-examined, does not confabulate with the witnesses who are yet to be cross-examined;
- IC shall make every endeavour to supply a copy of the cross-examination of the complainants’ witnesses to the delinquent on the same day (of questioning) or at the earliest, in any case before cross-examination of the next witness;
- After completion of cross-examination of the complainants’ witnesses, the delinquent would be permitted to lead defence evidence. The delinquent shall submit the examination-in-chief of the defence witnesses to the IC. Copies of the statements of the delinquent’s witnesses shall immediately be made available to the complainant;
- After completion of the cross-examination of the witnesses of the delinquent, parties shall be given a personal hearing by the IC.
The IC members are not expected to follow the technical rules of the CPC and the Indian Evidence Act, 1872 while recording evidence, or admitting/denying documents, since the sexual harassment inquiries are not strictly ‘judicial’ in nature. However, the expectation to follow the principles of natural justice is clear, which implies that there is a duty to act in a fair and reasonable manner.
Key Implementation Challenges
- Lack of expertise of the IC
The law has cast the onus of implementation of the Act and Rules on the IC, which has been given the powers of the Civil Court to carry out the enquiry and examine the evidence. In practice, IC members have little to no experience in handling such sensitive and judicial complaints. As a result, many of the enquiry reports are challenged in the High Courts by way of writ petitions filed under Article 226 of the Constitution.
Many of these reports are set aside for not following the principles of natural justice, which the IC members might not be familiar with in the first place. This appears to be a fundamental design flaw in the Act and the Rules. The IC is responsible for conducting an enquiry, result of which may have a life-changing impact on the aggrieved as well as the accused.
- Corner Office Harassment
There have been instances where the IC members are hesitant to conduct a fair enquiry when the complaint is against the company’s senior management, such as the CEO/ CFO, etc. This is a practical difficulty in implementing the Act, which raises doubts about the impartiality/ objectivity of the IC members.
- Confidentiality
The employer is obligated to maintain strict confidentiality. The Act provides that any information relating to the inquiry shall not be communicated or made known to the public, press, or media in any manner. However, in practice, it has been found that information invariably gets leaked within the organisation, or in the media, putting undue pressure on all the parties involved, including the IC members.
- How to deal with electronic evidence?
One crucial issue relates to the manner in which the IC should deal with electronic evidence – in the form of Whatsapp chats between the victim and the accused, video recordings, etc. On many occasions, the Whatsapp chats between the victim and the accused are exported to email, and printed copies are provided to the ICC.
Given that the IC proceedings are not strictly ‘judicial’ in nature, the strict rules relating to admissibility of electronic evidence prescribed under Section 65B of the Indian Evidence Act, 1872 will not be applicable. Hence, the requirement of obtaining a ‘certificate’ when secondary copies of the electronic records are produced (such as email copies of the WhatsApp chats) will not per se be applicable.
However, in such situations, can the ICC automatically rely upon such email copies, if the authenticity/ veracity of the same has not been disputed by the accused? Will the IC have an obligation to independently verify whether the extracts of the WhatsApp chats are accurate, and have not been tampered with? Another question that arises is whether the IC’s obligation to independently verify the authenticity of such secondary copies will arise only when it is disputed by the accused?
Given the significance of electronic evidence in the current day and age, it is imperative that these unanswered questions are settled by a conclusive pronouncement of the SC.
Concluding Thoughts
The Act has played an important role in ensuring that victims have greater confidence in reporting alleged acts of sexual harassment. Given the financial and reputational risks associated with mishandling of complaints under the Act, it is advisable for employers to take all efforts to create awareness about their POSH Policy and to ensure its implementation across the organisation. Organisations must regularly conduct training and awareness programs, not only for women employees but also for the IC members.
For effective implementation of the Act and Rules, it is essential that the IC, being the fulcrum of the Act, is trained and educated with legal knowledge and practices to carry out its quasi-judicial responsibilities. Amending the Act to mandate the appointment of at least one member of the IC with legal background, would be a step in the right direction.
[1] AIR 1997 SC 3011.
[3] AIR 2020 SC 3040.
[4] See for instance, Ruchika Kedia v. Internal Complaints, Goa Institute of Management, Through Its President Prof. Annamika Sinha And Ors, 2020 SCC Online BOM 139.
