The Author, Navin Kumar Jaggi , Advocate is CEO of Jaggi Jaggi and Jaggi Attorneys. He is a former Law Teacher of Delhi University, where he taught Law of Pleadings and Conveyancing, Law of Limitation, Arbitration Law, Labour Law, Law relating to the Seas and Constitutional Law. He has been Counsel for the Union of India as well as the Delhi Development Authority and several other Public Undertakings for many years.
The world is currently witnessing a massive awakening with the #Metoo movement with India being at the top-most rank, as per the Report published by Google Trends. The #Metoo movement began as a hashtag on Twitter in 2017 and now India is having a #Metoo movement of its own engulfing many powerful and famous personalities. Recently, this movement was chosen as the Person of the Year by the Time magazine.
Sexual Harassment at workplace is a rampant and deep-rooted characteristic of patriarchy. With the larger influx of women in workforce, Sexual Harassment at workplace has assumed greater dimensions. Fingers have been broadly pointed to various named personalities especially those in the domain of media and entertainment industry. However the question that remains to be pondered over is can the accusations being expressed via the Internet be legally justifiable?
In the eyes of Law, it is considered as a violation of a woman’s fundamental right to live with dignity provided under Article 21 of The Constitution of India. Article 15 expressly prohibits discrimination on the grounds of sex in employment and related opportunities. The offence of Sexual Harassment is also violative of the Right to Equality under Article 14 and Freedom to practice any profession or occupation guaranteed under Article 19(1)(g).
In India, the chief source of substantive Criminal Law is The Indian Penal Code, 1860 (Act No. XLV of 1860) that lists offences under various heads and punishments related to them. The procedure of complaint, inquiry, investigation, arrest, bail, etc. in the criminal justice system in India is governed by the Code of Criminal Procedure, 1973 (Act 2 of 1974) and The Evidence Act, 1872 (Act 1 of 1872) sets out the procedure for producing evidence in the Court of Law.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is the first legislation in India specifically addressing the issue of Sexual Harassment.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, also known as POSH Act, in 2013 aims at preventing such Sexual Harassment in the first place and in case such harassment does occur, it provides for efficient redressal of complaints by setting up of Internal Complaints Committee/Local Complaints Committee and providing compensation and rehabilitation to the victim.
It further mandates that employers must form an Internal Complaints Committee and failure to set up such a committee leads to a monetary penalty of Rs 50,000 under section 26(1) of POSH Act. The landmark case of Vishakha & Ors v. State Of Rajasthan & Ors laid down various guidelines for the employers known as the “Vishakha Guidelines” to prevent the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking required steps.
The #Metoo movement is a social media campaign. Regarding the admissibility of social media evidence in Indian Courts, it is noteworthy that after the enactment of The Information Technology Act, 2000 (Act 21 of 2000), Social Media evidence are considered to be a substantive piece of evidence and legally admissible in the Court of Law under Section-65B of The Evidence Act, 1872. However it requires the attestment of the person legally producing them as permissible evidence.
Another issue related to #Metoo in legal parlance is the limitation period. As per Section-468 of The Code of Criminal Procedure, 1973 the period of limitation commences from the date of offence or the day on which such offence comes to the knowledge of the victim or where the perpetrator of crime is unknown, the day on which the identity of the offender is known. The Act also empowers the Court to extend the limitation period, “if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.”
Under Section-9, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, an aggrieved woman has to file a written complaint for Sexual Harassment at workplace within three months from the date of such incident. The limitation period of three months may be extended by the Internals Complaints Committee “if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period. The Hon’ble High Court of Delhi in Punita K Sodhi v. Union of India and Ors held that the concept of limitation is not relevant in Sexual Harassment cases, as the menace of Sexual Harassment ought not to be viewed as a one-time incident, but the impact of Sexual Harassment must be taken into consideration to understand it as a continuing wrong.
Hence, it is pertinent to mention that lack of evidence or delay in filing of complaint doesn’t disentitle the complainant from filing the complaint however, it may be fatal to the prosecution’s case.
Coming to the remedies available to the victims, the cases of Sexual Harassment differ from each other in terms of damage and intensity, the legal remedy for the victims must also be case-specific and just. In this regard, Lawyer Karuna Nundy writes that “It is important to define the legal route available to women and men who are coming out with their accusations right now. These women have named some influential people of the society and they, in turn, need to be armed with legal firepower to make sure they get the right remedy.”
Under Indian legal system, a Sexual Harassment complainant may seek civil or criminal or civil and criminal remedies simultaneously. Sexual Harassment is a cognisable offence and to take recourse under Criminal Law, the victim has to file an FIR under Section- 354A of Indian Penal Code in the nearest police station, at the residence of the victim or at any convenient place of her choice. FIR sets the process of Criminal Law in motion and can be filed by the victim or any person acquainted with the facts of the case.
Alternatively, a private complaint can be filed before a Judicial Magistrate or Metropolitan Magistrate under Section 156(3) read with Section 190 of CrPC, who may direct the police to register an FIR. The Criminal Law requires a high threshold of burden of proof beyond reasonable doubt on the prosecution and provides for stringent punishment.
To seek civil remedy, the aggrieved woman must file a complaint in writing to either the ICC or LCC, as the case may be. Section- 12 of POSH Act provides that at the request of the complainant, the ICC or the LCC may recommend to the employer to provide interim measures such as transferring the aggrieved woman or the respondent to any other workplace and granting leave to the aggrieved woman in addition to her regular leave entitlement. Section-16 of POSH Act protects the confidentiality of the complainant and prohibits the publication or making known the contents of a complaint and the inquiry proceedings.
In case the victim is not satisfied with the investigation procedure carried out by the ICC or LCC, she can move the High Court by way of a writ petition under Article 226 of the Constitution of India and the concerned High Court can issue judicial directions to ICC to make the due process of Law actually happen.
The Ministry of Women & Child Development in 2018 has launched The SHe-Box that stands for Sexual Harassment Electronics Box, an online platform for reporting complaints of Sexual Harassment. Government as well as private sector employees can use this complaint mechanism and progress of investigation can be monitored online by the ministry as well as the complainant. The complaints may also be sent via email at firstname.lastname@example.org
Article 39A of the Constitution of India provides that State shall provide equal justice and free legal aid. Section 12 of the Legal Services Authorities Act, 1987 provides that every women victim of an offence is entitled for free legal services irrespective of her social or economic conditions.
In the light of the prevailing practice, people argue that the #MeToo movement ignores the legal framework which binds the status quo of registering the online complaints. While the accusations have been made largely on social media, the real battle will be fought in the courtrooms. After the initial phase of naming and shaming, the movement has to reach certain conclusions, in this case, holding the accused accountable for their acts or making the false complainants liable for defamation, as the case may be. Many lawyers have now decided to offer pro bono services and consultations to all those who are claiming to be victims under the #MeToo movement.