Examining A Sexual Harassment Complaint

The foundation of freedom, justice and peace in the world roots from the recognition of inherent dignity and of the equal and inalienable rights of all the members of the human family. Women are thus entitled to human rights, including the right to live free from violence and discrimination. However, even after great strides made by the International women's rights movements over the decades, women around the world are still struggling for the recognition of their basic human rights. The same is evident from the judgement promulgated by the Supreme Court in Vishaka v. State of Rajasthan wherein it was held that 'each incident of sexual harassment of woman at workplace results in violation of fundamental rights of women of "Gender Equality" and "Right to Life and Liberty" guaranteed under Article 14, 15, 19(1)(g) and 21 of the Constitution of India.' India being a State Party to the Convention on the Elimination of all Forms of Discrimination Against Women, 1979 ('CEDAW') was under an obligation to adopt a legislation specially addressing workplace sexual harassment. Therefore, the resultant Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred as POSH Act), was enacted. The fundamental paradigm of POSH is to: 1. Prevents hostile work environment. 2. Define the unwelcome behavior based on the 'test of reasonableness'. 3. Recognize quid-pro-quo harassment. Section 2(n) of the POSH Act, defines 'Sexual Harassment' akin to the definition provided by CEDAW, which includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: - i. physical contact and advances; or ii. a demand or request for sexual favours; or iii. making sexually coloured remarks; or iv. showing pornography; or v. any other unwelcome physical, verbal or non-verbal conduct of sexual nature; This progressive POSH Act, provides for protection and redressal of complaints of sexual harassment by an aggrieved woman. As per Section 4, POSH Act, the redressal mechanism of the complaint provides for a mandatory constitution of an Internal Complaints Committee (hereinafter ICC), wherein, every employer having ten or more employees shall constitute a Committee by an order in writing. Step 1: Filing Of Complaint An aggrieved woman of an act of sexual harassment at workplace may make a written complaint to the ICC within three months from the date of such incident. Upon the receipt of complaint, it is incumbent upon the ICC to take steps to settle the matter by way of conciliation, excluding monetary settlement, at the request of the aggrieved woman before initiating an inquiry under the Act. Where a settlement through conciliation is arrived, no further inquiry is conducted. However, if the conciliation fails, the committee shall proceed with the inquiry in accordance with Section 11, POSH Act. Step II: Understanding The Complaint In order to allow a fair, prompt and impartial inquiry, it is necessary that the ICC is capable of understanding the fundamentals of the complaint. Therefore, it is pertinent that an environment of trust and confidence is developed throughout such inquiry. As sexual harassment places the aggrieved woman in an atmosphere of intimidation, humiliation and/or hostility it is for the ICC to empathize with her. There is a whole range of behavior and activity which falls within the wide amplitude of the term 'sexual harassment' under the POSH Act, such as a lewd joke, inappropriate or sexual comment, leering at woman's body and/or giving sexually suggestive gestures, etc. It was held by the Supreme Court in Apparel Export Promotion Council v. A. K. Chopra, that 'even an attempt to molest or outrageous behavior of employee amounts to Sexual Harassment and actual assault or touch is not necessary to prove it.'iv Step IV: Inquiry Section 11, POSH Act provides that an inquiry into such complaint must be in accordance with the service rules applicable to the respondent. Section 11(3) vests ICC with the similar powers are vested civil court under CPC, 1908, which includes power to summon and enforce attendance, require discovery and production of documents. To ensure substantive justice, it is pertinent for the ICC to abide by the Principles of Natural Justice. While inquiring into the complaint it is requisite for the ICC to understand the root from which the complaint is arising. Thus, the Internal Committee should be impartial, free form any prejudice and allow fair opportunity to the Respondent to be heard. As the inquiry is required to be completed within 90 days, during its pendency the ICC also has the power to either transfer or grant leave or any other relief to the aggrieved woman. Step V: Cross-Examination Thereafter it is incumbent upon...

Examining A Sexual Harassment Complaint

Kanti Mohan Rustagi

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