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January 24, 2018

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The POSH Act, 2013 Is IC The Right Forum To Implement The Act?


- Bharat Vasani, Legal Advisor to Tata Group Chairman [ Tata Sons Ltd. ]

Bharat

This article gives an overview of the law and points out areas where there is lack of legislative clarity which could do with changes...

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. State of Rajasthan” to enact a law for the prevention of sexual harassment of women at workplace. The enactment - “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” - was very late, but better so than never.

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. Further, IPC was simultaneously amended to make sexual harassment a criminal offence.

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 fairly challenging. The objective of this article is to give an overview of the law and to point out the areas where there is lack of legislative clarity and where changes are required.

The Act adopts the following definition of sexual harassment under Section 2(n) of the Act.

“Sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication), namely:

  • Physical contact and advances; or
  • A demand or request for sexual favors; or
  • Making sexually colored remarks; or
  • Showing pornography; or
  • Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.

If connected to sexual harassment, the following acts shall also amount to sexual harassment:

  • implied or explicit promise of preferential treatment in the victim’s employment;
  • implied or explicit threat of detrimental treatment in the victim’s employment;
  • implied or explicit threat about the victim’s present or future employment status;
  • interferes with the victim’s work or creates an intimidating or offensive or hostile work environment for her;
  • humiliating treatment likely to affect the victim’s health or safety.

The definition is substantially similar to the definition given under Section 354A of the Indian Penal Code (IPC), which has made sexual harassment a criminal offence.

“Section 354A - Sexual harassment and punishment for sexual harassment -

(1) A man committing any of the following acts -

  1. Physical contact and advances involving unwelcome and explicit sexual overtures; or
  2. A demand or request for sexual favors; or
  3. Showing pornography against the will of a woman; or
  4. Making sexually colored remarks, shall be guilty of the offence of sexual harassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or fine, or both.

(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or fine, or both.”


While the period of limitation for filing complaint under the POSH Act with the IC is 3 months from the date of the incident, for cognizance of a complaint by a Court under Section 354A of the IPC, the limitation period provided under Section 468 of the CrPC would apply, and the period of limitation in that case would be 3 years from the date of the incident.

However, Section 473 of the CrPC provides that where the delay in filing the complaint before the Court has been properly explained or that it is necessary in the interests of justice to do so, the Court is entitled to take cognizance of the offence after the expiry of the period of limitation of 3 months.

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 parallely 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.

IC need not be influenced by a parallel criminal proceeding, if any, on any FIR registered by the aggrieved woman under Section 354A of the IPC. However, the IC will have to cooperate with the police if any specific document is demanded by the police official under Section 91 of the CrPC.

It is important to note that while the offence under Section 509 of the IPC is compoundable under Section 320 of the CrPC, there is no corresponding provision for compounding of offence under Section 354A for sexual harassment. It is not clear whether this was an accidental omission to make the consequential changes in Section 320 of the CrPC or as a matter of legislative policy, Parliament has decided not to make such offences compoundable.

I. Salient Features of the Act


The Act has described the “aggrieved woman” of any age, whether employed or not, 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.

The Act mandates the redressal process by mandating every organization to constitute an Internal Committee (IC) consisting of at least 4 members, out of which, there must be one external member. The Presiding Officer should be a woman, and at least 50% of the members should be women. However, it is advisable to constitute a Committee with 5 members in order to avoid a situation of a tie/deadlock in the case of differences of opinion. It is also advisable that the committee has two external members, with at least one member having legal/judicial background.

The rules prescribe that the quorum for the IC should be a minimum of 3 members including the Presiding Officer.

However, strangely, there is no mandatory requirement for an external member to be present at the IC meeting to constitute the quorum. The IC is expected to follow the principles of natural justice in the conduct of the inquiry, and the law mandates that the inquiry should be completed within 90 days after receiving the complaint and that the report should be prepared within another 10 days.

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 Act (under Section 11) gives IC the same powers as are vested in the Civil Court under the Code of Civil Procedure for enforcing attendance of witness and for the production of documents. However, IC members are not ‘judges’ and many of them do not have adequate experience to undertake such inquiries. Hence, it is very critical that adequate training is provided to IC members so that they can properly discharge the responsibilities placed on them under the Act.

The IC is required to adhere to the “principles of natural justice” while making the inquiry – Rule 7(4). Both the parties, the aggrieved woman and the respondent, must be given a fair opportunity to present their respective cases, and the respondent should be allowed to cross-examine the witnesses of the complainant. Further, a few principles of natural justice can be enumerated as follows:

a) Rule against bias - That an IC member should be impartial and should 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 made an IC member. A further extension of this principle states that no person should be a judge in his own cause.

b) Audi alteram partem - As mentioned above, both the complainant and respondent should be given reasonable and fair opportunity of being heard. The parties should be given sufficient notice of the inquiry. Both the parties should be provided sufficient opportunities to present their case and evidence, both oral and documentary.

The Supreme Court and High Courts have evolved certain principles which are required to be followed by administrative or quasi-judicial bodies in the determination of matters before them or while passing of orders. An IC is a quasi-judicial body, since it has been entrusted with certain powers of a Civil Court under the Code of Civil Procedure, 1908 (CPC), in matters of summoning witnesses, production of documents, and discovery under Section 11 of the Act. Therefore, it shall abide by the following principles:

a) Duty to act in a reasonable and fair manner and to not act arbitrarily;

b) Duty to act in furtherance of the object of the statute;

c) To furnish evidence and documents to be relied upon by the complainant in support of her complaint to the respondent and give sufficient opportunity to the respondent to defend his case;

d) To give reasons for making particular recommendations;

e) Recommendation has to be an informed decision made after taking into consideration all relevant materials and circumstances of the case.

The Act and the rules prescribe a procedure for the receipt of and response to complaints. The respondent has been provided 10 working days to respond to the complaint from the date a copy of the complaint along with supporting documents have been forwarded to him. The rules further provide that the IC shall be empowered to either terminate an inquiry or make any recommendation or arrive at a conclusion ex-parte if the complainant or the respondent does not remain present for three consecutive hearings of the inquiry.

Thus, the principles of natural justice imply the duty to act in a fair and reasonable manner.

Since it is not a judicial proceeding, it is not expected that the IC members should follow the technical rules of the Civil Procedure Code and the Indian Evidence Act in recording the evidence or for admission / denial of documents.

Record-keeping is however, important. All inquiry-related papers must be kept in the safe custody of the Presiding Officer under lock and key.

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.

II. Key Implementation Challenges


1. Lack of expertise of the IC – The law has cast the onus 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. Ideally, a retired judge of a District Court (or High Court) should be the Presiding Officer.

As per the Calcutta High Court in Pradeep Mandal’s case, the recommendation of the IC is final and binding on the employer, and the employer has no right to alter the recommendation in any manner. This magnifies the responsibility of the IC, and given the inexperience of the IC in dealing with such serious matters, there is need for reconsidering the constitution of the IC.

2. Corner Office Harassment – 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.

3. Monetary Settlement – The experience of the western world is that huge monetary settlements are made by companies that are confronted with allegations of sexual harassment leveled against senior management employees. In India, the largest compensation so far is `2 crores awarded by the Madras High Court in the Novasoft Technologies’ case. It is high time that Indian corporates start preparing themselves to face large potential liabilities under the Act. Like in the West, companies could consider taking appropriate insurance covers to protect themselves from potential monetary liabilities.

4. Consensual Relationships – One more challenge that most organizations face is how to deal with complaints of sexual harassment that arise from past consensual relationships. Should the management turn a blind eye to an ongoing consensual relationship between a boss and a reporting subordinate? The answer is a clear NO as there are several ramifications to this approach, particularly if such consensual relationship is between the Boss and his direct report. Many organizations have adopted a policy of voluntary disclosure of such relationships by the parties, which has not worked in practice.

5. Confidentiality – Section 16 of the Act mandates an absolute obligation of ‘confidentiality’ on the employer about the identity and address of the aggrieved woman, respondents, witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the IC, and the action taken by the employer. The Act categorically provides that such information shall not be communicated or made known to the public, press, and media in any manner. The RTI Act, 2005 also does not apply to such information. However, in practice, it has been found that the information gets invariably leaked within the organization, or in the media, putting undue pressure on the employer, the aggrieved woman, the respondent, and the IC members. In several cases, the aggrieved woman (or someone else) chooses to write a blog or communicate such information on social media, resulting in the media trying to probe further details by reaching out to the IC members. It is absolutely crucial that no IC member, or person from the employer’s organization, should be speaking to the media in relation to the proceedings under the Act.

III. Duties of the Employer


Section 19 of the Act prescribes the following duties of the employer:

(a) Provide a safe working environment at the workplace, which shall include safety from the persons coming into contact at the workplace;

(b) Display at any conspicuous place in the workplace, the penal consequences of sexual harassment’s and the order constituting the IC under sub-section (1) of Section 4;

(c) Organize workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the Act and orientation programs or the members of the IC in the manner as may be prescribed;

(d) Provide necessary facilities to the IC or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

(e) Assist in security the attendance of respondent and witnesses before the IC or the Local Committee, as the case may be;

(f) Make available such information to the IC or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of Section 9;

(g) Provide assistance to the woman if she so 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;

(h) Cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

(i) Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;

(j) Monitor the timely submission of reports by the IC.

IV. Appeal


Any person aggrieved from the recommendations made by the IC may file a writ petition under Article 226 for quashing of the IC report, or file a statutory appeal to the Industrial Tribunal. The appeal is required to be filed within a period of 90 days from the date of recommendation. In case of a complaint of sexual harassment to the Police under Section 354A of IPC, the procedure prescribed under The Code of Criminal Procedure, 1973 will have to be followed and appeal will also lie as prescribed under the Act.

Conclusion


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. Given the financial and 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.

The days are not far away when the employer may be sued for damages by the aggrieved woman. The Madras High Court recently awarded compensatory damages of `1.67 crores to the aggrieved woman in the case of sexual harassment. In the western world, it has become quite common for employers to take an insurance cover for any potential liability arising out of misconduct of their senior employees.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.


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