Anjana Palamand*
Supply: Schooling Nest
Ideas of pure justice guarantee equity throughout inquires performed beneath the PoSH Act. Nonetheless, making use of them very strictly with out contemplating the factual intricacies of the case can create obstacles for the complainant and witnesses and make them really feel unsafe. To resolve this, courts have interpreted them to strike a steadiness between the complainant’s security and privateness and the respondent’s rights. The judicial pattern on this tangent exhibits that courts aren’t rejecting the ideas of pure justice so as to shield the complainant, however try to customize them in a manner that protects all of the events – the complainant, the respondent, witnesses and the IC. This piece traces the present jurisprudence to conclude that in circumstances when there is no such thing as a tangible hurt to the respondent or when there’s a viable different that ensures procedural equity, the ideas of pure justice could be relaxed throughout the inquiry. It concludes by analyzing how extreme leisure by the ICs has been discouraged by the courts; and suggests the necessity for a structured framework that clearly delineates the extent to which pure justice could be relaxed with out undermining the respondent’s rights.
I. Introduction
Ideas of pure justice denote particular procedural rights to make sure an equitable listening to for each events in a continuing. The ideas assure each individual a proper to characterize their case the place the decision would adversely affect their curiosity. In making use of these ideas, the adjudicating physique should guarantee that the defendant has not been disadvantaged of a possibility to current their aspect of the case. These ideas have persistently utilized to proceedings beneath the Sexual Harassment of Ladies at Office (Prevention, Prohibition and Redressal) Act, 2013 [“PoSH Act”/ “PoSH”].
Jurisprudence across the PoSH Act demonstrates that it has strived to be victim-friendly. From permitting same-sex complaints, prioritising affect over the intent of the alleged act and never imposing a excessive burden of proof, courts have persistently upheld the welfare of the complainants and respondents throughout and after a PoSH continuing. On this tangent, there’s evolving jurisprudence on how ideas of pure justice are mirrored in PoSH proceedings and the way they are often tailor-made to create a extra victim-friendly atmosphere.
This piece argues that the ideas of pure justice in PoSH proceedings aren’t absolute and could be relaxed when there is no such thing as a tangible hurt to the respondent or when there’s a viable different that ensures procedural equity. The place there have been alternate options to procedural necessities equivalent to cross-examinations and entry to proof, courts have typically held that there is no such thing as a violation of the ideas of pure justice. For instance, courts have held that whereas the respondent has a proper to conduct a cross-examination, a verbal cross-examination will not be needed. Nonetheless, when there is no such thing as a different to a particular procedural requirement, courts have quashed the suggestions of the Inner Committee [“IC”] as a result of they’ve violated the respondent’s rights.
The piece begins by outlining the appliance of the ideas of pure justice beneath the PoSH Act. Subsequent, it analyses judicial interpretations which have allowed for procedural relaxations to guard the complainant and witness(es) whereas balancing the respondent’s rights. The piece then discusses situations the place violations of those ideas led to the quashing of the IC’s findings. It concludes by arguing that whereas procedural relaxations are needed for a sensitised strategy to PoSH, they need to not deprive the respondent of a significant alternative to defend themselves.
The applying of the ideas of pure justice to PoSH proceedings is complicated – whereas procedural safeguards exist to make sure equity for the respondent, strict adherence with out due consideration to the factual circumstances can create obstacles for the complainant and/ or the witness(es). This could doubtlessly result in the re-traumatisation of the complainant and procedural inefficacy. Subsequently, PoSH inquiries should strike a steadiness between guaranteeing due course of for the respondent, whereas sustaining a sensitised strategy that considers the complainant’s and/ or witness(es)’s security and well-being.
II. Understanding Ideas of Pure Justice in PoSH Proceedings
Rule 7(4) of the PoSH Guidelines, 2013 mandates the IC to comply with the ideas of pure justice throughout a PoSH inquiry. Particularly, Rule 7(2) states that the IC should share a replica of the criticism with the respondent inside 7 days of receiving the criticism. It was additionally talked about in X. v. ICC, Normal Chartered Financial institution that whereas the IC will not be certain by technical procedures, it has to comply with the ideas of pure justice.
On the similar time, courts have acknowledged that since there was no point out of any penal or hostile penalties for not following the timeline within the 2013 Guidelines, non-adherence to it can’t be used to quash the proceedings. The writer problematizes this – whereas the Guidelines name for strict adherence to the ideas of pure justice, courts have acknowledged that since there have been no penalties, it was not necessary to comply with them. In distinction to stress-free the ideas, utterly disregarding them as a result of there are not any penalties does extra hurt to the case. This inadvertently harms the complainant. Ideas of pure justice should not be considered as a way to an finish; it should be adopted to make sure that the trial is truthful, equitable, and simply to the respondent and the complainant.
Earlier than analysing the comfort of the ideas of pure justice, it is very important perceive them intimately. The ideas of pure justice embrace the rule towards bias and a good alternative to be heard if the choice can adversely affect the accused. The rule towards bias consists of any type of bias – private or pecuniary. This precept ensures objectivity; not only for the accused, however for the sufferer too. In PoSH proceedings, which means that no member of the IC can have any type of curiosity with the complainant or the respondent. For example, in Linda Eastwood, the primary IC’s proceedings have been quashed; and the second IC was reconstituted by the respondent itself. Two of the IC’s members have been additionally witnesses within the case. The court docket quashed the findings of the second committee. The court docket reasoned that there was a component of bias and battle of curiosity because the respondent had constituted his personal committee to look into allegations towards him. With a view to keep away from bias, the respondent ought to haven’t had any function in deciding the structure of the IC. In one other case, the Delhi HC talked about that the place there was some type of hierarchy between both of the events and the IC, there could also be problem in deciding the case in an unbiased method.
The second precept states that the respondent ought to be given a good alternative to take part within the proceedings. In a case the place the respondent was not given a replica of the criticism and was not allowed to cross-examine witnesses, the court docket held that the ideas of pure justice have been violated. Courts have additionally held that not offering a replica of the inquiry report or not permitting the respondent to submit an evidence or rebut the statements of the complainant or witnesses is violative of the ideas of pure justice.
III. Judicial Interpretation: When Can These Ideas Be Relaxed?
Whereas these ideas relating to the rights of the respondent have been reiterated by courts in a number of circumstances, different circumstances have handled the exceptions to the ideas of pure justice and the function of the IC in sustaining them. This part discusses the procedural flexibilities in PoSH proceedings, the way it protects victims and witnesses and the way this balances the respondent’s rights and sufferer’s safety.
A. Procedural Flexibilities in PoSH Proceedings
Courts have held that the IC can devise its personal process relying on the details of the case whereas guaranteeing that the ideas of pure justice are adopted. This contains customising and limiting the equity of the inquiry.
For example, just lately, in HCL Applied sciences v. N. Parsarathy, it was held {that a} hyper-technicality will not be a violation of the ideas of pure justice. The respondent was going through allegations of sexual harassment from three completely different complainants. The IC held him responsible, and the respondent appealed to the Labour Courtroom on two grounds – (a) he was denied entry to CCTV footage and (b) he performed his cross-examination through written communication (and never oral), which disadvantaged him of correct alternative since a few of his questions weren’t put to witnesses. The court docket held that the IC had the discretion to filter or rephrase the respondent’s questions and put chosen ones to the complainant and witnesses. Doing so wouldn’t violate the ideas of pure justice.
Furthermore, on this case, the complainants had alleged that the respondent used to face uncomfortably near them. The respondent admitted that he used to face very shut; nevertheless, he acknowledged that he did that to oversee the complainants’ work. The CCTV footage revealed simply this – that the respondent used to face very near the complainants. Though the respondent didn’t get a possibility to see this footage, the court docket held that the CCTV footage would present one thing that the respondent had already admitted to. Subsequently, there was no purpose for the respondent to problem the order primarily based on him not being allowed to look at the footage. Therefore, it may be deduced that the ideas of pure justice aren’t held to be violated except there’s particular, obvious, and tangible hurt to the respondent due to the IC’s actions.
One other comparable case is Rakesh Medhi v. The State of Assam and Ors. Right here, the petitioner contended that when a PoSH criticism was filed towards him, he was not given an opportunity to see the statements of the witnesses. The court docket held that the petitioner had already accepted a few of the allegations; due to this fact, there can be no change within the end result and it could quantity to a ‘ineffective formality’. The writer argues that whereas it is very important dispose circumstances in a speedy method, the IC can run a danger of being biased whereas presuming what the respondent is aware of. The IC ought to have nonetheless given the respondent entry to all statements because it was fairly attainable for the respondent to search out some elements of the assertion contentious. That is particularly as a result of the respondent had accepted solely some of the allegations. Ideas of pure justice have been by no means a ‘ineffective formality’, they have been procedural safeguards meant to guard the respondent. Subsequently, ICs should guarantee to not violate the respondent’s rights and try to hunt readability on the respondent’s submissions; and presume the extent to which the respondent is responsible on a fact-based strategy, not a generalised one.
B. Safety of the Complainant and Witnesses
The ideas of pure justice ordinarily require the IC to permit the respondent to cross-examine the complainant and the witnesses. Nonetheless, in lots of circumstances, courts have held {that a} cross-examination could jeopardise the protection of the complainant and/ or witness. Subsequently, they’ve emphasised written cross-examinations whereas additionally permitting the IC to filter out the questions. The controversy arises on whether or not or not this compromise impacts the respondent’s rights.
The writer argues that in circumstances the place the respondent is allowed to cross-examine the complainant and/ or witness(es) by a written format, it doesn’t breach the respondent’s rights because the objective of conducting a cross-examination remains to be met. It’s because a verbal cross-examination will not be the one method for the respondent to problem the complainant’s and/ or witness(es)’s statements. A written cross-examination additionally permits the respondent to query the statements and search responses or clarifications to the allegations; or merely search clarifications. In a office setting the place inherent hierarchies exist, it might be tough for the complainant and/ or witness(es) to face the respondent. A written cross-examination permits them to be nameless. There could also be repercussions to the complainant’s and/ or witness(es)’s oral responses after the cross-examination. Not being nameless could result in the complainant and/ or witness(es) offering mistaken solutions as they might not wish to displease the respondent.
In L.S. Sibu v. Air India Restricted and Ors., the respondent was going through allegations of sexual harassment by 17 complainants. This was a really critical case due to the multiplicity of victims and the continuity of harassment. The IC didn’t permit the respondent to verbally cross-examine the complainants due to their security and privateness. When the respondent challenged this, the court docket reasoned that generally, the complainant could not have the braveness to testify in regards to the sexual harassment they confronted. Subsequently, not permitting a verbal cross-examination couldn’t have been a legitimate floor to carry all the inquiry void as a result of it was not the one technique to contradict the complainants’ statements.
Whereas, when the questions are written, the IC could have the chance to oppose them earlier than placing them in entrance of the complainant/ witness(es). The complainant and/ or witness(es) can phrase their response appropriately and are very more likely to not be traumatised by the method. Because the end result by a written cross-examination is similar, the writer believes that it’s within the pursuits of the complainant and/ or witness(es) that the IC be allowed the discretion to permit a written cross-examination.
On the similar time, tribunals should watch out with the wording of how a cross-examination must happen. Whereas cross-examinations could be allowed in a written format, they shouldn’t be disallowed completely. For example, in R.Ok. Pachauri v. Union of India and Ors., the Delhi Industrial Tribunal held that cross-examinations might not be efficient in defending witnesses who’re afraid of retaliation; and due to this fact, shouldn’t be allowed. The Tribunal didn’t touch upon whether or not which means that a cross-examination might not be allowed in any respect; or if solely verbal cross-examinations aren’t allowed. On condition that the previous completely takes away the correct of the respondent to meaningfully have interaction with the allegations levelled towards them, the writer argues that it questions the equity of the inquiry. The Tribunal ought to have held that it was not necessary for a written cross-examination, however confused on the requirement of a written cross-examination.
IV. When Violations of Pure Justice Led to Quashing of IC Findings
The writer famous that in circumstances the place there was no different or if there was tangible hurt to the respondent, courts have typically quashed IC proceedings as a result of they violated the ideas of pure justice.
Whereas sustaining procedural flexibility, the IC can’t deprive the respondent of vital data as a result of that compromises the respondent’s capability to defend themselves. This is able to render any determination of the IC arbitrary. For instance, in Vineeth VV v. Kerala State Electrical energy Board, the Kerala HC quashed the report of the IC as a result of the IC didn’t present a replica of the criticism to the respondent. The IC additionally didn’t permit the respondent to cross-examine the respondent. Right here, with the dearth of any type of cross-examination, the respondent doesn’t have any procedural safeguards to problem the allegations.
Furthermore, the writer argues that when no alternate options exist, violations of the ideas of pure justice grow to be deadly. In Dr. T.V. Ramakrishnan v. Kannur College, the respondent (who was an assistant professor) was held responsible of sexual harassment. The respondent challenged the inquiry report on the grounds that the IC didn’t present the respondent with a replica of the criticism or the inquiry report. The court docket quashed the report as a result of it violated the ideas of pure justice.
It is very important perceive why ICs don’t share sure data with the Respondent. ICs could select to not share any materials which will lead the respondent to additional retaliate towards the complainant. One other seemingly situation is that the IC might not be delicate and could also be biased with the mindset that the respondent must be punished; due to this fact, they don’t assume that’s their obligation to have interaction with the opposite aspect. Nonetheless, the writer urges that ICs want to grasp that the very seemingly end result of the respondent not being offered copies of statements or the criticism is that the IC’s proceedings will probably be quashed and the complainant must be put by an inquiry once more. Subsequently, whereas the IC could select to not share statements to guard the complainant and/ or witness(es), they’re more likely to be re-victimised by a second inquiry; which, paradoxically, doesn’t shield them in any respect.
The writer additionally argues that the legislation is conveniently silent on whether or not or not the respondent has a proper to cross-examine the complainant and/ or the witness(es). Whereas Rule 7(4) states that the IC should comply with the ideas of pure justice, the proviso to Part 11 of the Act reads that each events need to be given a possibility to be heard. The correct to be heard will not be the similar as the correct to cross-examine. This distinction must be reconciled in order that the respondent can considerably benefit from the rights accorded to them beneath the PoSH Act.
In Ashok Kumar v. College of Delhi and Ors., the Delhi Excessive Courtroom held that the respondent can proceed with their cross-examination utilizing a questionnaire, and never a verbal cross-examination. Nonetheless, the respondent had no recourse to entry the criticism and different paperwork. In such a case, the place the respondent has no different, it is very important acknowledge their rights and be sure that it’s revered or have an equitable recourse.
V. Conclusion
The evolving jurisprudence on PoSH and the ideas of pure justice exhibits that the judiciary will not be rejecting these ideas in PoSH proceedings, however is making an attempt to refine its software to search out an equitable steadiness between the complainant’s/ witness(es)’s security and the respondent’s proper to take part within the proceedings.
The inference that may be drawn by analysing a sample of case-laws is that courts don’t overturn IC selections because of minor technical or procedural lapses. Nonetheless, when these lapses end in tangible hurt to both of the events, such because the respondent not being able to mounting any defence, courts have normally intervened and quashed the IC’s report. Subsequently, there should be a steadiness right here. The IC should think about the seriousness of the allegations and the severity of the attainable motion that they will suggest when deciding the extent to which the ideas of pure justice ought to be utilized in PoSH proceedings.
Subsequently, courts and ICs ought to transfer in direction of a extra structured framework that clearly delineates the extent to which pure justice could be relaxed with out undermining the respondent’s rights. One attainable strategy is to give you standardised pointers on finest practises for procedural flexibility, thus guaranteeing consistency. ICs should even be skilled on the repercussions of not following the ideas of pure justice in circumstances the place there is no such thing as a viable different; and ought to be sensitised to understand the rights of the respondent vis-à-vis the protection and well-being of the complainant.
* Anjana is a penultimate-year legislation scholar at Symbiosis Legislation College, Pune. Her pursuits embrace legal guidelines towards sexual violence and feminist jurisprudence. Anjana additionally runs an initiative aimed toward rising consciousness about sexual violence in India.
