Fairness or Formality? Navigating the Relaxation Around Natural Justice in PoSH Proceedings – Law School Policy Review

Anjana Palamand*

Source: Education Nest

Principles of natural justice ensure fairness during inquires conducted under the PoSH Act. However, applying them very strictly without considering the factual intricacies of the case can create barriers for the complainant and witnesses and make them feel unsafe. To resolve this, courts have interpreted them to strike a balance between the complainant’s safety and privacy and the respondent’s rights. The judicial trend in this tangent shows that courts are not rejecting the principles of natural justice in order to protect the complainant, but are attempting to customise them in a way that protects all the parties – the complainant, the respondent, witnesses and the IC. This piece traces the existing jurisprudence to conclude that in cases when there is no tangible harm to the respondent or when there is a viable alternative that ensures procedural fairness, the principles of natural justice can be relaxed during the inquiry. It concludes by examining how excessive relaxation by the ICs has been discouraged by the courts; and suggests the need for a structured framework that clearly delineates the extent to which natural justice can be relaxed without undermining the respondent’s rights.

I.                Introduction

Principles of natural justice denote specific procedural rights to ensure an equitable hearing for both parties in a proceeding. The principles guarantee every person a right to represent their case where the verdict would adversely impact their interest. In applying these principles, the adjudicating body must ensure that the defendant has not been deprived of an opportunity to present their side of the case. These principles have consistently applied to proceedings under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“PoSH Act”/ “PoSH”].

Jurisprudence around the PoSH Act demonstrates that it has strived to be victim-friendly. From allowing same-sex complaints, prioritising impact over the intent of the alleged act and not imposing a high burden of proof, courts have consistently upheld the welfare of the complainants and respondents during and after a PoSH proceeding. In this tangent, there is evolving jurisprudence on how principles of natural justice are reflected in PoSH proceedings and how they can be tailored to create a more victim-friendly environment.

This piece argues that the principles of natural justice in PoSH proceedings are not absolute and can be relaxed when there is no tangible harm to the respondent or when there is a viable alternative that ensures procedural fairness. Where there have been alternatives to procedural requirements such as cross-examinations and access to evidence, courts have generally held that there is no violation of the principles of natural justice. For example, courts have held that while the respondent has a right to conduct a cross-examination, a verbal cross-examination is not necessary. However, when there is no alternative to a specific procedural requirement, courts have quashed the recommendations of the Internal Committee [“IC”] because they have violated the respondent’s rights.

The piece starts by outlining the application of the principles of natural justice under the PoSH Act. Next, it analyses judicial interpretations which have allowed for procedural relaxations to protect the complainant and witness(es) while balancing the respondent’s rights. The piece then discusses instances where violations of these principles led to the quashing of the IC’s findings. It concludes by arguing that while procedural relaxations are necessary for a sensitised approach to PoSH, they must not deprive the respondent of a meaningful opportunity to defend themselves.

The application of the principles of natural justice to PoSH proceedings is complex – while procedural safeguards exist to ensure fairness for the respondent, strict adherence without due consideration to the factual circumstances can create barriers for the complainant and/ or the witness(es). This can potentially lead to the re-traumatisation of the complainant and procedural inefficacy. Therefore, PoSH inquiries must strike a balance between ensuring due process for the respondent, while maintaining a sensitised approach that considers the complainant’s and/ or witness(es)’s safety and well-being.

II.             Understanding Principles of Natural Justice in PoSH Proceedings

Rule 7(4) of the PoSH Rules, 2013 mandates the IC to follow the principles of natural justice during a PoSH inquiry. Specifically, Rule 7(2) states that the IC must share a copy of the complaint with the respondent within 7 days of receiving the complaint. It was also mentioned in X. v. ICC, Standard Chartered Bank that while the IC is not bound by technical procedures, it has to follow the principles of natural justice.

At the same time, courts have stated that since there was no mention of any penal or adverse consequences for not following the timeline in the 2013 Rules, non-adherence to it cannot be used to quash the proceedings. The author problematizes this – while the Rules call for strict adherence to the principles of natural justice, courts have stated that since there were no consequences, it was not mandatory to follow them. In contrast to relaxing the principles, completely disregarding them because there are no consequences does more harm to the case. This inadvertently harms the complainant. Principles of natural justice must not be viewed as a means to an end; it must be followed to ensure that the trial is fair, equitable, and just to the respondent and the complainant.

Before analysing the relaxation of the principles of natural justice, it is important to understand them in detail. The principles of natural justice include the rule against bias and a fair opportunity to be heard if the decision can adversely impact the accused. The rule against bias consists of any form of bias – personal or pecuniary. This principle ensures objectivity; not just for the accused, but for the victim too. In PoSH proceedings, this means that no member of the IC can have any form of interest with the complainant or the respondent. For instance, in Linda Eastwood, the first IC’s proceedings were quashed; and the second IC was reconstituted by the respondent itself. Two of the IC’s members were also witnesses in the case. The court quashed the findings of the second committee. The court reasoned that there was an element of bias and conflict of interest since the respondent had constituted his own committee to look into allegations against him. In order to avoid bias, the respondent should have not had any role in deciding the constitution of the IC. In another case, the Delhi HC mentioned that where there was some form of hierarchy between either of the parties and the IC, there may be difficulty in deciding the case in an unbiased manner.

The second principle states that the respondent should be given a fair opportunity to participate in the proceedings. In a case where the respondent was not given a copy of the complaint and was not allowed to cross-examine witnesses, the court held that the principles of natural justice were violated. Courts have also held that not providing a copy of the inquiry report or not allowing the respondent to submit an explanation or rebut the statements of the complainant or witnesses is violative of the principles of natural justice.

III.           Judicial Interpretation: When Can These Principles Be Relaxed?

A.    Procedural Flexibilities in PoSH Proceedings

Courts have held that the IC can devise its own procedure depending on the facts of the case while ensuring that the principles of natural justice are followed. This includes customising and limiting the fairness of the inquiry.

For instance, recently, in HCL Technologies v. N. Parsarathy, it was held that a hyper-technicality is not a violation of the principles of natural justice. The respondent was facing allegations of sexual harassment from three different complainants. The IC held him guilty, and the respondent appealed to the Labour Court on two grounds – (a) he was denied access to CCTV footage and (b) he conducted his cross-examination via written communication (and not oral), which deprived him of proper opportunity since some of his questions were not put to witnesses. The court 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 would not violate the principles of natural justice.

Moreover, in this case, the complainants had alleged that the respondent used to stand uncomfortably close to them. The respondent admitted that he used to stand very close; however, he stated that he did that to supervise the complainants’ work. The CCTV footage revealed just this – that the respondent used to stand very close to the complainants. Even though the respondent did not get an opportunity to see this footage, the court held that the CCTV footage would show something that the respondent had already admitted to. Therefore, there was no reason for the respondent to challenge the order based on him not being allowed to watch the footage. Hence, it can be deduced that the principles of natural justice are not held to be violated unless there is specific, apparent, and tangible harm to the respondent because of the IC’s actions.

Another similar case is Rakesh Medhi v. The State of Assam and Ors. Here, the petitioner contended that when a PoSH complaint was filed against him, he was not given a chance to see the statements of the witnesses. The court held that the petitioner had already accepted some of the allegations; therefore, there would be no change in the outcome and it would amount to a ‘useless formality’. The author argues that while it is important to dispose cases in a speedy manner, the IC can run a risk of being biased while presuming what the respondent knows. The IC should have still given the respondent access to all statements since it was quite possible for the respondent to find some parts of the statement contentious. This is especially because the respondent had accepted only some of the allegations. Principles of natural justice were never a ‘useless formality’, they were procedural safeguards intended to protect the respondent. Therefore, ICs must ensure to not violate the respondent’s rights and strive to seek clarity on the respondent’s submissions; and presume the extent to which the respondent is guilty on a fact-based approach, not a generalised one.

B.    Protection of the Complainant and Witnesses

The author argues that in cases where the respondent is allowed to cross-examine the complainant and/ or witness(es) through a written format, it does not breach the respondent’s rights as the goal of conducting a cross-examination is still met. This is because a verbal cross-examination is not the only manner for the respondent to challenge the complainant’s and/ or witness(es)’s statements. A written cross-examination also allows the respondent to question the statements and seek responses or clarifications to the allegations; or merely seek clarifications. In a workplace setting where inherent hierarchies exist, it may be difficult for the complainant and/ or witness(es) to face the respondent. A written cross-examination allows them to be anonymous. There may be repercussions to the complainant’s and/ or witness(es)’s oral responses after the cross-examination. Not being anonymous may lead to the complainant and/ or witness(es) providing wrong answers as they would not want to displease the respondent.

In L.S. Sibu v. Air India Limited and Ors., the respondent was facing allegations of sexual harassment by 17 complainants. This was a very serious case because of the multiplicity of victims and the continuity of harassment. The IC did not allow the respondent to verbally cross-examine the complainants because of their safety and privacy. When the respondent challenged this, the court reasoned that sometimes, the complainant may not have the courage to testify about the sexual harassment they faced. Therefore, not allowing a verbal cross-examination could not have been a valid ground to hold the entire inquiry void because it was not the only way to contradict the complainants’ statements.

Whereas, when the questions are written, the IC will have the opportunity to oppose them before putting them in front of the complainant/ witness(es). The complainant and/ or witness(es) can phrase their response appropriately and are very likely to not be traumatised by the process. Since the outcome through a written cross-examination is the same, the author believes that it is in the interests of the complainant and/ or witness(es) that the IC be allowed the discretion to allow a written cross-examination.

At the same time, tribunals ought to be careful with the wording of how a cross-examination needs to take place. While cross-examinations can be allowed in a written format, they should not be disallowed entirely. For instance, in R.K. Pachauri v. Union of India and Ors., the Delhi Industrial Tribunal held that cross-examinations may not be effective in protecting witnesses who are scared of retaliation; and therefore, should not be allowed. The Tribunal did not comment on whether this means that a cross-examination may not be allowed at all; or if only verbal cross-examinations are not allowed. Given that the former entirely takes away the right of the respondent to meaningfully engage with the allegations levelled against them, the author argues that it questions the fairness of the inquiry. The Tribunal should have held that it was not mandatory for a written cross-examination, but stressed on the requirement of a written cross-examination.

IV.           When Violations of Natural Justice Led to Quashing of IC Findings

While maintaining procedural flexibility, the IC cannot deprive the respondent of critical information because that compromises the respondent’s ability to defend themselves. This would render any decision of the IC arbitrary. For example, in Vineeth VV v. Kerala State Electricity Board, the Kerala HC quashed the report of the IC because the IC did not provide a copy of the complaint to the respondent. The IC also did not allow the respondent to cross-examine the respondent. Here, with the lack of any form of cross-examination, the respondent does not have any procedural safeguards to challenge the allegations.

Moreover, the author argues that when no alternatives exist, violations of the principles of natural justice become fatal. In Dr. T.V. Ramakrishnan v. Kannur University, the respondent (who was an assistant professor) was held guilty of sexual harassment. The respondent challenged the inquiry report on the grounds that the IC did not provide the respondent with a copy of the complaint or the inquiry report. The court quashed the report because it violated the principles of natural justice.

It is important to understand why ICs do not share certain information with the Respondent. ICs may choose to not share any material that may lead the respondent to further retaliate against the complainant. Another likely scenario is that the IC may not be sensitive and may be biased with the mindset that the respondent needs to be punished; therefore, they do not think that is their duty to engage with the other side. However, the author urges that ICs need to realise that the very likely outcome of the respondent not being provided copies of statements or the complaint is that the IC’s proceedings will be quashed and the complainant will have to be put through an inquiry again. Therefore, while the IC may choose to not share statements to protect the complainant and/ or witness(es), they are likely to be re-victimised through a second inquiry; which, ironically, does not protect them at all.

The author also argues that the law is conveniently silent on whether or not the respondent has a right to cross-examine the complainant and/ or the witness(es). While Rule 7(4) states that the IC must follow the principles of natural justice, the proviso to Section 11 of the Act reads that both parties have to be given an opportunity to be heard. The right to be heard is not the same as the right to cross-examine. This difference needs to be reconciled so that the respondent can substantially enjoy the rights accorded to them under the PoSH Act.

In Ashok Kumar v. University of Delhi and Ors., the Delhi High Court held that the respondent can proceed with their cross-examination using a questionnaire, and not a verbal cross-examination. However, the respondent had no recourse to access the complaint and other documents. In such a case, where the respondent has no alternative, it is important to acknowledge their rights and ensure that it is respected or have an equitable recourse.

V.             Conclusion