Sexual harassment of women at workplace has been one of the predominant concerns in the field of women rights as it not only violates fundamental rights guaranteed under the Indian Constitution, but also causes copious harm to the physical and mental well-being of the victim. It breaches their right to equal opportunity provided under Article 14, as any act of sexual harassment makes the work environment hostile and offensive having direct effect on the productivity of the victim. Sexual harassment also violates their right to live with dignity guaranteed under Article 21 of the Indian Constitution, as it causes a major blow to the woman’s pride and self-esteem. Therefore, pressing need was felt to devise a mechanism to foster a safe and secure environment for working women, and to address their concerns effectively in a time-bound manner.
In pursuance of this, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘Act’) was passed. This Act read with its corresponding rules (‘Law’) provides not only for redressal of a complaint, but also prevention and prohibition. The Law covers various aspects including what sexual harassment means, the constitution and composition of the Internal Committee (‘IC’), which is a body that looks into such complaints, the roles and responsibilities of IC and the employer, and the process to be followed by IC while addressing a complaint of sexual harassment.
While the Act is extensive and provides for various circumstances, practically there are a range of challenges that an IC may face during the course of either conciliation or inquiry, which may need to be dealt with on a case to case basis. This article provides a brief overview of some of the challenges that the IC may face during an inquiry. The challenges discussed are a culmination of what POSH at Work has dealt with during the course of some of its inquiries. Therefore, this article discusses some of the unique practical challenges, and the approach adopted by the IC.
The objective of this article is to help IC members who may face similar challenges during the course of their inquiries. In our experience, one may face either some or all of these challenges in an ongoing inquiry or may not face any of these challenges. Since each case is unique, the methods adopted may have to be tailored to suit the facts and circumstances of each case.
Process of Inquiry
The challenges discussed in this Article are mainly in the context of process of inquiry, and not conciliation. Hence given below is a chart showing an overview of the process of inquiry.
The purpose and some of the challenges that were faced by ICs at different steps of the process have been discussed below:
- Step – Introductory Call:
Purpose: Once a complaint is received, the IC must conduct an introductory call with the parties to discuss the Law and process followed by the IC including options available to the complainant under the Law i.e., conciliation or inquiry, and the importance of confidentiality.
Challenge 1- Change of Presiding officer:
Complainant requested for the Presiding Officer (’PO’) to be changed, and the IC being satisfied with the reason for the same, decided to change the PO. However, the organisation did not have any other senior women employee in their offices in India, but they had senior woman employees in their offices outside India. In such a case, can a female employee from an office outside India be appointed as a PO?
Law: Section 4(2)(a) of the Act states, ‘A Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees.
Provided that in case a senior level woman employee is not available, Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (1);
Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;
Interpretation of Law: Since the proviso to this Section provides that if there are no senior woman employee in any of its other offices, then a PO can be nominated from any other workplace of the same employer.
However, there is no such exemption with respect to appointment of other members to the IC. Therefore, all other members of the IC must necessarily be based out of India.
Decision: A senior woman employee of a group company outside India was appointed as the PO.
Challenge 2 – Filing Police Complaint:
During the introductory call, the complainant expressed apprehension, and stated that she was worried she may be victimised for having filed the complaint, hence, she would also like to file a police complaint. What can the IC do in such a situation?
Law: Section 12 of the Act read with Rule 8 provides for interim relief on a written request of the complainant, during the pendency of inquiry, which includes transfer of either parties, granting leave to complainant up to a period of 3 months, restrain respondent from reporting on her work performance or from supervising her academic activity, as the case may be.
Section 19(g) states that ‘Every employer shall provide assistance to the woman if she chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force.’
Decision: The IC informed the complainant regarding the interim relief available to her under the Law, notified her that the IC inquiry and the police investigation can be conducted parallelly, and checked with her if she needs any sort of assistance in filing a police complaint. Accordingly, IC provided her with, both appropriate interim relief and the required support to file a complaint with police.
Challenge 3 – One on one call with External Member:
The Complainant requested for a separate one on one call with the External Member (‘EM’), as she wanted to talk to a neutral member in order to freely express her grievances. In this situation, the dilemmas that the IC faced were:
- Can EM speak separately with the parties to the case? If yes, should such call be recorded?
- What if the Complainant shared material facts regarding the case with the EM?
IC’s decision: This one on one call was allowed on humanitarian grounds to understand the complainant’s concerns and to help her build trust on the IC and its process. Thus, the complainant was informed at the beginning of the call that the call is to alleviate her concerns. However, details of the call will not be taken on record for the purposes of the inquiry as IC is a body that takes a collective decision, and accordingly would need to maintain a quorum.
Therefore, even if the complainant shared material information relating to the facts of this case, she will have to necessarily repeat the same before the other IC members if she wishes for it to be taken on record for the purpose of the inquiry.
- Step – Request/Granting of Interim Relief:
Purpose: Section 12 of the Act provides for interim relief, which is provided at the written request of the complainant and is granted based on the discretion of IC. It is mainly provided to protect complainant from any anticipated retaliation or victimization.
Challenge 1 – Request for more leave due to physical ailment:
Complainant was already provided certain amount of leave as interim relief. However, the complainant refused to join work back citing a health issue that was triggered due to the incident, and insists that she would want to be on paid leave till the end of the inquiry, what can the IC do?
Law: Section 12(1)(b) states that ‘During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to—
(b) grant leave to the aggrieved woman up to a period of three months;’
Section 12(2) also states that ‘The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.’
Interpretation: It is possible in some cases that the complainant is insistent, and continues to ask for more leave than what is already provided. Since, interim relief is left to the discretion of the IC, it would be pertinent for IC to understand the gravity of the situation and respond to the request accordingly. Consequently, in such cases, it could be important for IC to request for medical certificate when the complainant has cited experiencing physical or emotional difficulties. This is to ascertain if IC could continue with inquiry proceedings at all such that it does not deteriorate the physical/mental condition of the complainant further.
Decision: Accordingly, the IC requested for a medical certificate and the complainant submitted the same from a registered doctor stating that the complainant was experiencing a physical ailment due to which she needed one month rest. Therefore, IC provided her an interim relief of one month.
Challenge 2 – Request for more leave due to mental condition:
In a similar case, the complainant insisted for 3 months leave as interim relief even though she had already been given a few days leave as interim relief. Therefore, IC asked for medical certificate to be produced. Accordingly, the complainant provided a medical certificate from a registered psychiatrist which stated that she was undergoing treatment for some severe mental conditions and was advised two month’s leave. In such a case, the dilemma that the IC faced was given the nature of the disorder, and the possibility that the IC inquiry could intensify the memories of harassment and heighten the emotional experience, whether it would be practical to continue with the inquiry?
Decision: The IC decided that it is best to defer the inquiry for at least the period mentioned in her medical certificate, in order to provide her time and space to recuperate and to avoid putting her through any stressful situation.
- Step – Examination:
Purpose: During this stage, the parties are provided an opportunity to elaborate on their complaint and written response respectively, and provide IC with more background and context regarding the alleged incidents. During this stage, the parties can also submit names of witnesses who could testify before the IC.
Challenge 1 – Ex-employees as Witnesses:
The parties submitted names of some ex-employees as witnesses for the purpose of the inquiry. The question was whether IC can examine those who are not part of the organisation for the purposes of IC inquiry?
Law: As per Section 11(3) of the Act, “For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
Interpretation: Since IC has been provided certain powers of the Civil Court under the Law, as per which it can summon and enforce the attendance of any person. Therefore, for the purposes of the IC inquiry, the IC can examine any one, whether they are part of the organisation or not as long as IC believes that their statements are relevant for the purposes of the inquiry.
IC decision: IC examined these ex-employees as witnesses for the purpose of the inquiry
Challenge 2 – Relevance of past conduct of a party:
The complainant named some person/s as witnesses, but they were not witness to the incident itself. However, as per knowledge of the complainant, they had been victims of sexual harassment by the respondent. Can the IC examine such person/s as witness/es?
Law: In Union of India v. Bishamber Das Dogra, (Civil Appeal No. 7087 of 2002) the Hon’ble Supreme Court held that ‘in case of misconduct of grave nature or indiscipline, even in absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.’ The same was also held by the Hon’ble Supreme Court in Central Industrial Security Force & Ors. v. Abrar Ali. (Civil Appeal No. 2148 of 2015).
Interpretation: IC is a fact finding committee. While statements of those who are not witness to the incident may not be relevant in proving/disproving the respondent’s guilt, it could help IC in establishing the likelihood of the incident having occurred. This is important because it is difficult to have direct evidence for any act of sexual harassment given that it usually occurs in the absence of any witnesses.
IC’s decision: IC examined the witnesses but decided to take these statements on record for the purposes of the inquiry only after gauging the relevance of these statements in support of either proving or disproving the allegations made in the complaint. In any case, statements of such witnesses may be considered as supporting evidence, and not conclusive evidence.
Challenge 3 – Revelation of witness identity:
A witness who was examined refused to have to have their identity revealed to the respondent despite providing an option of written cross-examination, in place of verbal face-to-face cross-examination. What can the IC do in such a situation?
Law: The Hon’ble Supreme Court in Delhi University & Anr. v. Bidyug Chakraborty and Ors. (SLP(C)No.23060/2009) allowed for the identity of the witnesses to not be disclosed to the Respondent and stated that “We further direct that as this appears to be a case of sexual harassment the identity of the witnesses need not be revealed to the respondent or his counsel and for this purpose the respondent would be entitled to submit the questionnaire which will be put to the witnesses for their answers in writing.”
IC’s decision: The IC therefore arranged for a written cross-examination, and shared the statements of the witness without revealing the identity.
- Step – Cross Examination:
Purpose: After completing the examination stage, the IC conducts cross-examination, wherein the parties are provided an opportunity to come face to face and cross-question each other based on the complaint/response copy and the statements made during examination stage.
Challenge – Written cross-examination instead of verbal cross-examination:
The complainant expressed discomfort in facing the respondent for the purposes of verbal cross-examination. In such a situation, what option can the IC provide?
Law: The Delhi High Court in Ashok Kumar Singh v. University of Delhi has held that- “Primarily, in a sexual harassment complaint, the committee has to verify and analyse the capability of the aggrieved to depose before them fearlessly without any intimidation. If the Committee is of the view that the aggrieved is a feeble and cannot withstand any cross examination, the Committee can adopt such other measures to ensure that the witnesses statement is contradicted or corrected by the delinquent in other manner. The fair opportunity, therefore, has to be understood in the context of atmosphere of free expression of grievance. If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross examination of such witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely, the Committee can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement.”
Interpretation: The Hon’ble High Court held in this case that it is important to facilitate an environment in which parties feel free to depose without any sense of fear, and if the complainant is feeble, and expresses apprehension in facing the respondent like in this case, then cross-examination can be conducted in ways other than verbal cross-examination so as to ensure that the parties do not have to face each other.
Decision: The IC conducted the cross-examination in written format, wherein the parties were asked to send their objections/questions in writing, and the IC arranged a call with opposite party to record their responses to these objections/questions.
As per Law, it is very important for all parties involved to keep details of the entire inquiry process and the identity of the parties confidential. Breach of confidentiality attracts penalty under the Law, and any other appropriate action as per the contract between the party and the organisation.
Challenge – Breach of confidentiality:
In the midst of the inquiry process, the IC was informed that complainant had reached out to the management of the company raising some of her concerns, and while doing so, she had revealed the identity of the respondent. Therefore, the organisation wanted to understand if this amounts to breach of confidentiality requiring an action to be taken against the complainant.
Law: Section 16 of the Act provides for confidentiality. It states that: “Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint made under Section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of the Act shall not be published, communicated or made known to the public, press and media, in any manner.
Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses’
The Central Information Commission (CIC) in Reshma M.G. v. All India Radio observed that ‘the intent of the legislature is loud and manifest. It is a settled principle of interpretation of statutes that the provisions of any enactment are to be interpreted in a manner which furthers the cause or purpose behind its enactment. Section 16 is enacted as a safeguard measure to check further aggravation of traumatic and stigmatic experience of a victim of sexual harassment by unwarranted disclosure of her identity.’
- (i) What is the meaning of ‘public’ under Section 16 of the Act?
- (ii) Is there a breach of confidentiality if the Complainant reaches out to the management of her company?
Interpretation: ‘The Act does not define the term ‘public’. However, ‘public’ has been defined under the Indian Penal Code, 1860. (“Code“). As per Section 12 of the Code, “public” means any “class of the public or any community.”
Taking cue from the CIC’s observation above, the intention of the Act is to safeguard the sanctity of the inquiry since first paragraph of Section 16 states that all details of the inquiry/conciliation must be kept confidential during the course of the inquiry/conciliation. Whereas second paragraph states that if justice is secured, such information can be disclosed without revealing the identity of the aggrieved woman and witness. However, it excludes the mention of respondent.
Therefore, all details of inquiry/conciliation must be kept fully confidential during the course of the inquiry/conciliation. In this case, since the complainant had reached out to the management while the inquiry was still in progress, it was important to understand the nature and context of information that was shared by the complainant. If it affected the sanctity of the inquiry, then an action must be taken.
IC’s decision: In order to understand if the information shared affected the sanctity of the inquiry, this issue of confidentiality was made a subject-matter of inquiry so that the relevant information can be brought on record. In pursuance of the same, the IC recorded statements of such person/s who had notified the IC regarding this, and examined the e-mails sent by the complainant to understand the nature of information that was shared, the intention behind it, and to ascertain whether an action for breach of confidentiality must be taken against the complainant.
Authored by Prerana Saraf, Associate, POSH at Work
Guided by Samriti Makkar Midha, Co-founder & Partner, POSH at Work