Earlier this year, the Calcutta High Court rendered a judgement on allegations of workplace sexual harassment which raises critical concerns about how the judiciary interprets and applies the law in certain cases.

At the centre of this case, the petitioner accused her senior colleague of multiple instances of inappropriate conduct, including staring, peeping into her room, unwelcome physical contact, and the use of terms like “baby” and “sweety.” While the Internal Committee (“IC”) of the organization found some terms inappropriate, it dismissed the allegations due to insufficient evidence, prompting the petitioner to approach the Court.

The Court, observing factors like delay in reporting, lack of corroboration, and complete procedural fairness in the IC’s inquiry, dismissed the petition and even concluded that the allegations were possibly motivated.

Analysis of the Court’s Reasoning

(i) “Unwelcome” Behaviour Misinterpreted: The Court minimised the petitioner’s discomfort by suggesting that terms like “baby” and “sweety” were normal in certain social circles and could not be considered sexual harassment unless repeated. This interpretation undermines the principle that unwelcome behaviour must be assessed from the perspective of the aggrieved woman (elaborated below). Additionally, even a single incident, if unwelcome and inappropriate, can be sufficient to constitute sexual harassment under the PoSH Act.

(ii) Dismissal of Key Allegations: The Court dismissed allegations of staring and peeping, reasoning that such acts were unlikely to go unnoticed in living quarters with CCTV coverage. This reliance on the absence of eyewitnesses or recordings ignores the reality that sexual harassment often occurs in subtle or private ways, making it challenging to provide direct evidence. Of relevance here is the case of Ms (X) v Union of India (2020), wherein the Delhi High Court set aside a penalty imposed on the petitioner for a false complaint of sexual harassment, by highlighting that the absence of an eyewitness does not diminish the credibility of the complainant’s statement, which must be assessed independently by the IC, acknowledging that direct evidence is not always available in sexual harassment cases.

(iii) Impact Over Intent Overlooked: Despite the petitioner consistently expressing that the respondent’s language and actions made her uncomfortable, the Court failed to consider her perspective, thus neglecting to prioritize the impact of the behaviour on her. This oversight undermines the core principle of complaints under the PoSH Act, which centers on the aggrieved woman’s experience. When conducting investigations under the PoSH Act, it is essential to factor in the subjectivity and cultural difference that may arise in day to day interactions. For instance, in the case of Dr. Punita K. Sodhi vs Union Of India & Ors., 2010 (“Punita Sodhi”), the Delhi High Court recognized the subjective nature of sexual harassment, affirming that it must be analysed from the perspective of the complainant. The Court emphasized the importance of understanding the complainant’s experience by considering the different perspectives of men and women, as conduct which may appear innocuous or even “harmless” to men could deeply offend women.

(iv) Unfounded Speculations and Personal Remarks: The Court’s suggestion that the petitioner fabricated the case due to alleged indiscipline, as well as labelling her as misandrist, appears speculative. These remarks divert attention from the merits of the case and reinforce harmful stereotypes that discourage women from reporting sexual harassment. It is crucial for the judiciary to play a role in preventing victim-blaming and ensuring that all allegations are assessed based on their legal substance.

Lastly, the Court concluded that while the statute rightly provides robust protection for women facing sexual harassment, it is crucial to ensure that this protection does not unintentionally lead to a reverse bias against the respondent. Overextension of protective measures could risk misuse, ultimately creating unintended barriers to the professional advancement of competent and hard-working women, thereby undermining the very objective of equality that the statute seeks to uphold.

Factors to Consider When Conducting an Investigation into a Sexual Harassment Complaint as an Internal Committee Member

(i) Definition of Sexual Harassment

Sexual Harassment, as defined under the PoSH Act, includes any unwelcome acts or behaviours, whether directly or indirectly implied, such as –
● Physical contact and advances;
● Demands or requests for sexual favours;
● Making sexually coloured remarks; or
● Showing pornography.

It also encompasses:
● Implied or explicit promises of preferential treatment in employment;
● Threats of detrimental treatment or adverse impacts on current or future employment status;
● Creating an intimidating, offensive, or hostile work environment; or
● Humiliating treatment likely to affect an individual’s health or safety.

(ii) Impact over Intent and the Reasonable Woman Standard

While assessing complaints of sexual harassment, emphasis is on the impact on the aggrieved woman rather than the intent of the respondent. This means that sexual harassment is assessed from the perspective of the complainant and not through the lens of what the respondent deems appropriate or innocent.

The reasonable woman standard plays an imperative role in this context. This standard helps in assessing whether a reasonable woman in the complainant’s position would perceive the behaviour / conduct in question as unwelcome, offensive, or intimidating. In the Punita Sodhi case, the Delhi High Court, addressed two important concepts, namely – (i) impact vs. intent; and (ii) reasonable woman standard. Taking reference from the judgement of Ellison v. Brady (1991), the Court emphasized that this approach ensures that sexual harassment is evaluated based on how a reasonable woman would perceive it, rather than a male-centered perspective.

By relying on these concepts, the PoSH Act ensures that claims are evaluated with sensitivity to gendered experiences, rather than dismissing them as subjective interpretations.

(iii) Standard of Proof: Preponderance of Probabilities

Unlike criminal law, where the accused’s guilt must be proven “beyond reasonable doubt,” the PoSH Act operates on the “preponderance of probabilities” standard for the respondent. This means that the decision is based on whether it is more likely than not that the alleged incident occurred, based on the available evidence. This lower burden of proof acknowledges the challenges an aggrieved woman may face in providing direct evidence, as harassment including sexual harassment often occurs in private settings or subtle ways.

While the decision rightly reinforces the importance of procedural fairness and judicial restraint, it fails to adequately respect the core principles of sexual harassment law, particularly the relevance of the complainant’s perspective and the subjective nature of sexual harassment. A fair judicial approach should ensure that the focus remains on the experience of the aggrieved woman and the broader goal of creating safe and inclusive workplaces.

How Can SHLC Help?

We, at Sexual Harassment Law Compliance Advisory (SHLC), can play a pivotal role in addressing such issues by:

(i) Conducting Awareness Programs: Educating on the principles of the PoSH Act, particularly the concepts of “unwelcome behaviour” and “impact over intent.”
(ii) Capacity Building of ICs: Training IC to adopt unbiased, complainant-centric approaches and prepare robust reports that stand up to judicial scrutiny.
(iii) Policy Advocacy: Engaging with stakeholders to emphasize the importance of judicial sensitivity and push for reforms to safeguard workplace dignity.

To learn more, please visit our website at https://shlc.in/ or contact us via email at contact@shlc.in.

Disclaimer: The information provided in this blog post is for general informational purposes only and is not intended to be legal advice. While we strive to provide accurate and up-to-date information, the law is constantly evolving. This blog post does not constitute a lawyer-client relationship and should not be used as a substitute for seeking professional legal advice. For specific PoSH-related questions and concerns, please consult with a qualified lawyer or PoSH expert.