It has been more than two decades since the Supreme Court of India in Vishaka v. State of Rajasthan, AIR 1997 SC 301, laid down the famous 'Vishaka guidelines', which inter alia, provided for the creation of an internal complaints mechanism for inquiring into complaints of sexual harassment by women employees. The Court had also recommended that the Central and State governments adopt legislation, to ensure that employers in the private sector comply with the guidelines. However it was only in 2013, in the backdrop of the public outcry generated by the Nirbhaya case, that the Central Government enacted the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act ['POSH'] amidst a slew of other legislative reforms addressing sexual violence against women.
The release of the 'List of Sexual Harassers' ['LOSHA'] calling out alleged sexual harassers in Indian academia and the recent discourse surrounding #MeToo seems to indicate that the Vishaka guidelines and POSH leave much to be desired, both in terms of the substance of the provisions which lay down the internal complaints process and the implementation thereof. For the limited purpose of this article I will focus only on one significant loophole. Both the Vishaka Guidelines and POSH provide little guidance on the evidentiary standards and procedure to be followed during the course of the inquiry. Rule 7 of the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ['POSH Rules'] only provides that the inquiry must be conducted in accordance with the principles of natural justice, and that the parties are not entitled to legal representation. Though the High Courts have differed on the scope of the right to cross-examine the complainant, the Supreme Court has held that at the least, the respondent has the right to indirectly cross-examine the complainant and her witnesses by submitting a written questionnaire in lieu of direct verbal cross-examination (Bidyut Chakraborty (Prof v. Delhi University & Ors., SLP (Civil) No. 23060/2009).
There are no 'rape shield' safeguards available under POSH similar to those provided under Section 114A (presumption of absence of consent in certain cases) and Section 146 (prohibition of questions relating to the 'immoral character' of a prosecutrix) of the Indian Evidence Act, 1872. The lack of clearly defined standards provide scope for internal committees to apply standards of criminal law while adjudicating upon a sexual harassment complaint, so as to safeguard the respondent. The complainant's ordeal may be further exacerbated if the respondent appeals to the High Court, which often ends up subjecting the complainant's testimony to stricter scrutiny than in the internal proceedings.
Though the Courts often adopt a regressive attitude in cases dealing with sexual violence, there are also many occasions on which they contribute to filling in the aforementioned legislative lacunae. In 1991, long before the Vishaka guidelines were framed, the Supreme Court had held, in the context of a departmental enquiry against a Deputy Superintendent of Police on charges of sexual assault, that a complainant's testimony cannot be discredited merely because she is 'a woman of easy virtue' (State of Maharashtra & Anr v. Madhukar Narayan Mardikar, (1991) 1 SCC 57). More recently, the Supreme Court has held that sexual harassment is not confined to actual commission of acts of unwelcome sexual behaviour but extends to the creation of a hostile and discriminatory environment at the workplace independent of such acts. Further, a complainant is entitled to compensation under Articles 14 and 21 of the Constitution if the inquiry is conducted in violation of the Vishaka Guidelines, irrespective of the outcome of the inquiry (Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394).
The latest in the line of progressive judgements dealing with sexual harassment is that of a Division Bench of the Uttarakhand High Court in Bhuwan Chandra Pandey v. Union of India,. The case concerned a writ petition challenging the order of dismissal passed against the petitioner, who was employed as a Sahashtra Seema Bal ('SSB') officer. The charges against the petitioner were that first, he had molested one of the women trainees (the complainant) from the SSB paramedic course in 1998, during the course of a journey undertaken after the training exercise. Second, that he and his father, who was a DIG in the SSB, had pressured the complainant to withdraw the case.
The internal inquiry committee found the petitioner guilty of the charges in 2001. However due to various procedural deficiencies in the inquiry process, the case underwent several stages of litigation before a fresh inquiry committee, which was constituted for the third time in 2011, affirmed the finding of guilt. This finding was upheld by the Union Public Service Commission, the disciplinary authority which passed the order of dismissal, and by the Ministry of Home Affairs. Though the complainant's version of events was corroborated by another woman trainee who had been present at the time of the incident and by superior officers, the petitioner argued that her uncorroborated 'self-serving' testimony could not form the basis for holding him guilty.
The High Court borrowed from rape law jurisprudence to hold that the sole testimony of the complainant would suffice in an internal or departmental enquiry into cases of sexual harassment and molestation, just as it would in a criminal case. If her evidence inspires confidence, there is no rule requiring corroboration of her testimony in material particulars. Crucially, the Court noted that a departmental enquiry or disciplinary proceeding is not governed by the strict technicalities of the Indian Evidence Act, 1872 as in a criminal trial. The standard of proof required is simply that of 'preponderance of probabilities', and even circumstantial evidence or hearsay may be admitted provided it is credible and has a reasonable nexus to the case.
The Court further observed that the Courts cannot reassess the sufficiency of evidence relied upon by an internal authority or re-appreciate findings of fact unless the findings are perverse. Moreover, that it is not open to the Court to interfere with the quantum of punishment imposed by the disciplinary authority unless it is grossly disproportionate or shocks the conscience. It was recommended that even in cases where the Court deems it fit to set the punishment aside, it is more appropriate to remand the matter to the disciplinary authority for re-consideration of the penalty to be imposed, instead of prescribing a substituted penalty.
Even though the High Court affirmed on facts that that the complainant's testimony in this case was well-corroborated, the aforementioned principles would be useful to complainants in more complicated fact situations. The very purpose of providing for an internal complaints mechanism is so that women can access a relatively less onerous mechanism for bringing action against sexual harassment at the workplace, rather than going through the rigors of a criminal trial. The provisions of POSH do not fully encapsulate this understanding, though it may be argued that it is an unwritten rule that internal committees must adopt a lower standard of proof, and more flexible procedural guidelines than in a criminal proceeding, while dealing with sexual harassment complaints.
Nevertheless, if the standards laid down in Bhuwan Chandra Pandey are incorporated into POSH, it would formally limit the scope for application of unreasonably high evidential standards by internal committees. It would further restrict the possibility of the High Court acting as a court of appeal and overturning a verdict in favour of the complainant. Even if status quo continues with respect to POSH Rules, the High Court's decision serves as a useful precedent for other Courts which are seized of sexual harassment matters.
While the High Court's verdict facilitates easier resolution of sexual harassment complaints, it cannot be denied that in the facts of Bhuwan Chandra Pandey, substantial injustice has been meted out to the complainant. Though the Vishaka guidelines prescribe a time-bound resolution of complaints, it has taken more than two decades to affirm the initial guilty finding and penalty prescribed against the petitioner, due to departmental procedural lapses. This gives rise to the concern that even if the law stipulates lowered evidential and procedural barriers for inquiries into sexual harassment at the workplace, the internal organisational mechanism may deliberately mishandle the matter so as to give the respondent employee the benefit of challenging a verdict against him. Though the High Court cannot reassess the findings of the Inquiry Committee, it can set aside a complainant-friendly verdict on the ground of prejudice caused to the rights of the accused due to non-compliance with a fair procedure.
The petitioner in this case had additionally argued that the verdict was bad in law as the complaints committee was composed of female officers who were subordinate to him. The Court held that since the complaints committee was only a 'delegate' of the disciplinary authority, and was constituted in accordance with the Vishaka guidelines, there was no impropriety involved in conduct of the inquiry by junior officers. Though this is again a good precedent for supporting internal committee verdicts, it does not solve the structural pressures that operate when junior officers are appointed for inquiring into charges against their seniors.
In light of the aforementioned problems, it is worth considering whether it would be more appropriate to delegate the internal inquiry process under POSH to a more autonomous body, so that complainants do not suffer on account of any mala fide strategies. Until then, it can be hoped that the Courts continue following the approach of the High Court in Bhuwan Chandra Pandey instead of encouraging bizarre remedies such as tying of rakhis to sexual harassment perpetrators.
(The author is a legal researcher based in Mumbai/Delhi.)