It took 16 years for Parliament to implement the directions of the Supreme Court of India issued in 1997 in the prominent case of “Visakha vs. the State of Rajasthan” to enact Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 for the prevention of sexual harassment of women at the workplace. A distinguishing feature of the law against the sexual harassment of women is that the lawmakers have consciously decided not to burden the existing judicial infrastructure with this new jurisdiction, nor have the lawmakers decided to create new specialized tribunals to investigate/adjudicate complaints. Rather, the lawmakers have decided to delegate the responsibility for the enforcement of the Act to the concerned organization where the aggrieved woman was harassed. The Act provides for the setting up of an Internal Committee (IC) at every workplace which is expected to receive and inquire into complaints of sexual harassment by following a certain process prescribed under the Act and the Rules.
The Act has described the “aggrieved woman” of any age, whether employed or not (example: an interview candidate), who has been alleged to have been subjected to the act of sexual harassment. The definitions of “employer” and “workplace” are wide enough to cover every possible organization and every possible workplace, both in the private and public sectors. Unfortunately, there are several drafting lacunae, both in the Act and the Rules, and a lack of clarity on some important matters which have made the task of the IC very challenging.
The aggrieved woman is entitled to approach the Police even if she has filed a complaint with the IC. There are many practical challenges when the matter is parallelly investigated by the Police when the inquiry under the POSH Act is still pending. There are possibilities that the same witnesses may give a completely different version of events before the IC and before the Police. IC needs to go strictly by the evidence recorded by it and not get carried away by other developments.
The Act prescribed the burden of implementation on the IC of the organization, which is given the powers of the Civil Court to carry out the enquiry and examine the evidence. However, there is no mandatory requirement that the IC should have one external member who should have a legal/judicial background. In practice, IC members are drawn from different departments of the organization with little or no experience whatsoever in handling such complaints. As a result, inquiry reports are being challenged in the High Courts in exercising of the writ jurisdiction under Article 226, and many reports are set aside for not following the due process of natural justice. Prima facie, it appears to be a fundamental design defect in the Act. The IC is charged with conducting an enquiry which is of a very serious nature as it deals with the lives of two individuals and could destroy the career and family life of a man if wrongly held guilty. Moreover, the recommendation of the IC is binding on the Management. It would have been better if the Presiding Officer of the IC has a legal/judicial background.
There is no clarity in the Act (or in the Rules) whether the report of the IC should be unanimous, or whether it can be by majority. This is a very vital legislative ambiguity which needs to be corrected by amending the Act or Rules as soon as possible. Until the time the law is amended, one can take a view that it could never be a legislative intent to create a deadlock situation in case of differences of opinion, and hence, the report can be given by the majority. The Presiding Officer has no casting vote, and hence, it is advisable that the IC should consist of odd number of members, say, 5, 7, 9, etc.
Before commencement of the inquiry, IC members may take steps to settle matters through conciliation. However, such conciliation can happen only at the request of the aggrieved woman. From an organizational perspective, conciliation could be a high-risk proposition as there could be allegations at a later stage that the aggrieved woman was coerced to enter into conciliation. Hence, it is advisable to ensure proper documentation to record the consent of the aggrieved woman.
The experience, so far, has been that whenever there is a complaint against a member of a company’s senior management and the IC member is hesitant to conduct a fair enquiry or scared to hold the responsible guilty, it creates practical difficulties as to how one deals with the complaint. In many cases, it raises doubts about the impartiality/objectivity of IC members.
Upon the commencement of inquiry, the IC must immediately take a download of WhatsApp chats, SMSs, email records and taped conversations, if any, as also any CCTV footage, if relevant. It is recommended that all the electronic records, whether phone conversations, WhatsApp or SMSs or any other electronic records should be transcribed and duly authenticated by the aggrieved woman/respondent, as the case may be. While the requirements prescribed in Section 65B of the Evidence Act, 1872, with regard to the admissibility conditions for any electronic records may not be strictly complied with, the precautions prescribed under Section 65B are useful and, if practicable, the IC should try to adhere to it. Non-compliance of the requirements of Section 65B of the Evidence Act will not vitiate the Inquiry Report.
After the enactment of the Act, women, in general, have become more aware of their rights and therefore less hesitant to report such matters to the IC. In concluding remark, it would be not wrong to say that IC is the right forum to deal with the complaints because IC can reach the grass route level witnesses in those cases. However, to make IC successful keeping in view the reputational risks associated with the mishandling of the complaints under the Act, it is strongly recommended that the employer takes all efforts to create awareness about the POSH Policy and its implementation across the organization in an appropriate manner. It must regularly conduct training and awareness programs, not only for women employees but also for IC members, and demonstrate that it has ‘zero tolerance’ for any misconduct of an employee, irrespective of rank or status in the organization.