More than two decades have elapsed since the Supreme Court passed a landmark judgment in case of Vishakha vs. State of Rajasthan AIR 1997 SC 301, and formulate the famous ‘Vishakha guidelines‘, which inter alia providing guidance for the resolution of complaints through internal complaint mechanisms in cases of sexual harassment by women employees.
It was also recommended that the Central and state governments shall adopt legislation to assure that employers in the private sector observe the guidelines properly. Still, it was only in 2013, when the Nirbhaya case caused a massive outcry that the central government was forced to enact the Sexual Harassment of women at Workplace (Prevention, Prohibition and Redressal) Act or commonly referred to as POSH amongst a swerve of other common reforms intending to address sexual violence issues against the women.
However, it is still a sad fact that despite the legislative reforms created by the POSH Act and Vishaka guidelines, there is still no unanimity regarding the standards on the evidence presented and evidentiary and the procedures to be followed during the course of examination/inquiry.
As far as legal procedures are concerned Rule 7 of the Sexual Harassment of Women at Workplace only provides that the parties are entitled to legal representation. Still, the High Courts have a different view on the scope of the right to cross-examine the complainant indirectly, whereas the Supreme Court has held that the respondent has right to indirectly cross-examine the complainant and her witness through the submission of a written questionnaire in lieu of direct verbal cross-examination in case of Bidyut Chakraborty Prof. Vs Delhi University &others)
Presently, no rape shield safeguards are available under the POSH Act 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.
Thus, it could be understood that in the absence of evidently defined standards gives an opportunity to such internal committees to use the traditional standards of criminal law while resolving upon a sexual harassment complaint, and obviously safeguard the respondent.
The complainant’s ordeal may be aggravated if cases where the respondent appeals to the High Court, obviously ending upon subjecting the complainant’s testimony to severer inquiry than as compared to the internal proceedings. Lately, it is one of the progressive judgments related to sexual harassment passed by a Division Bench of the Uttarakhand High Court in reference to Bhuwan Chandra Pandey vs Union of India.
The case involved a writ petition challenging the order of dismissal passed against the petitioner, employed as a Shastra Seema Bal officer (SSB). The charges against the petitioner were that firstly the respondent molested one of the women trainees from the SSB paramedic program that happened in 1998, during the course of the journey undertaken after the training exercise. Secondly, the trainee was pressurized to withdraw her complaint as the respondent was a senior officer and his father was a DIG in the SSB at that time.
Accordingly, the internal inquiry committee found the petitioner guilty of the charges in 2001. But, due to procedural deficiencies during the procedure, the case suffered multiple stages of litigation afore a fresh inquiry committee that was instituted for the third time in 2011, which confirmed the earlier findings. Further, such findings were sustained by the Union Public Services Commission (UPSC), the disciplinary authority that conceded with the order of dismissal and by the Ministry of Home Affairs.
Though the complainant’s version of events was corroborated by another women 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 Court borrowed from rape law jurisprudence to hold that the sole testimony of the complainant would suffice in an internal or departmental inquiry into cases of sexual harassment and molestation, just as it would in a criminal case.
If evidence inspires confidence, there is no rule requiring corroboration of her testimony in material particulars. Crucially, the court noted that a departmental inquiry or disciplinary proceeding is not governed by the Indian Evidence Act strict technicalities as compared to a criminal trial. The standard of proof required is simply that of “preponderance of probabilities” and even circumstantial evidence or hearsay may be admitted to provide 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 to re-appreciate findings of the fact unless the findings are perverse.
The petitioner in the case had additionally argued that the verdict was bad in law as the complaints committee was composed of female officers subordinate to the respondent. The court held that since the complaints committee was only a delegate of the disciplinary authority and as constituted in accordance with the Vishaka Guidelines, there was no impropriety involved in the conduct of the inquiry by junior officers.
It is also worth considering whether it would be more appropriate to delegate the internal inquiry process under POSH to a more autonomous body so that the complainants do not suffer on account of any mala fide strategies. Until then, it could be hoped that the courts continue following the approach of the HC in the case of Bhuwan Chandra Pandey instead of encouraging bizarre remedies such as tying rachis to sexual harassment preparators.
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