The POSH Act stands as a significant legislative shield against sexual harassment of women at workplaces. It sets out a prescriptive redressal mechanism for complaint resolution. This includes inter alia: (a) mandatory formation of an IC (or, 'local committee', as the case maybe) to handle complaints of sexual harassment1 and timelines for filing and resolution of complaints; (b) an IC's responsibility to conduct fair and impartial investigations; and (c) obligation to maintain confidentiality throughout the investigation process, to safeguard privacy of both the complainant and the respondent.
In the Indian organisational context, in addition to adoption of the mandatory prevention of sexual harassment at workplace policy under the POSH Act, companies adopt several other policies from a good governance and misconduct reporting perspective, which includes policies on whistleblowing, 'bystander intervention', anonymous 'tip' policies and the like. Very often, members of the management and even the IC find themselves in conflicting situations where a complaint of sexual harassment is routed to them anonymously – and more so, through reporting mechanisms under the above policies, from members and colleagues within the organisation and in some cases, even outside. In such cases, the following questions are often debated on: (a) Can an IC act on an anonymous complaint of sexual harassment? and (b) What would be their responsibility or recommended way forward in such cases?
Does the POSH Act set limitations on 'anonymous' complaints?
The POSH Act does not expressly call out the requirement that written complaints of sexual harassment cannot or should not be 'anonymous'. Under Section 9 of the POSH Act, an 'aggrieved woman' can file a 'written complaint' of sexual harassment with the IC, 'within prescribed periods'. The notable prescriptions here are that complaints to an IC must be filed by an 'aggrieved woman' and 'in writing'. Where an 'aggrieved woman' is unable to file a 'written complaint', the POSH Act allows other persons to file such complaints on behalf of the aggrieved woman, provided she has consented to it.
Interestingly, adopting a strict interpretation of the statute, an aggrieved woman could still file a complaint of sexual harassment in writing, satisfying the above requirements while choosing to remain anonymous. However, through judicial precedents, the position on this ambiguity is well settled under law that written complaints of sexual harassment cannot be anonymous, i.e., identity of an aggrieved woman cannot be held back, and that an IC cannot act on a complaint raised on anonymity. In the case of Manjeet Singh vs. Indraprastha Gas Limited,2 the Delhi High Court ("Delhi HC") had set aside conclusions drawn by an IC on grounds that the complaint received was anonymous. It was noted that anonymous complaints cannot be acknowledged or acted upon unless submitted in writing. To investigate an incidence of alleged sexual harassment based on anonymity could present challenges for the IC. This approach is seen as contrary to the principles of natural justice, which are fundamental to internal investigations and disciplinary procedures. This applies to investigations under the POSH Act as well. Indian courts have time and again re-affirmed the significance of principles of natural justice to ensure a safer workplace and to maintain transparency in processes under the POSH Act.
One of the more important reasons for disallowing cognisance of anonymous complaints is that the law, while seeking to protect women from sexual harassment at workplace, also seeks to protect the respondent from frivolity of complaints. Judicial precedents have established that due process must be followed when investigating sexual harassment cases under the POSH Act. This includes providing the respondent with a reasonable opportunity of being heard, cross-examining witnesses and offering rebuttals against the allegations raised.
In case of an anonymous complaint, a respondent may not be in a position to address the above and hence, the necessity to present the respondent with full facts and circumstances of the case and specifics of allegations, including details of the aggrieved woman. Further, investigating anonymous complaints under the POSH Act, while undermining principles of natural justice, could also result in several other challenges including increased number of frivolous complaints and complaints from parties unrelated to the actual alleged incidence. Several recent cases including Vineeth V.V. vs. Kerala State Electricity Board and Ors3 and Aureliano Fernandes vs. State of Goa and Ors4 have also established the need for an IC to investigate matters of sexual harassment in line with principles of natural justice and to offer respondents with reasonable opportunity to defend their case.
Depending on the gravity of complaint, the IC or management may not be in a position to completely disregard the allegations or complaint solely on grounds that the complainant chose to conceal their identity. Some of the recommended way forward for members of management and IC in such situations could be to request and encourage the anonymous complainant to come forward and make full and adequate disclosures, and to have the aggrieved woman make a complaint in writing to the IC (and if complaint is being filed on behalf of the aggrieved woman, seek her consent in doing so). Management may also initiate fact-finding exercises to assess if there is any merit to the allegations which warrants disciplinary measures. Unless of course there is an official written complaint of sexual harassment following the above measures, the IC is likely to be limited in its duties and powers to act on such anonymous complaints under the POSH Act.
Footnotes
1. For the purposes of this newsletter, the focus on complaint resolution mechanism is limited to that of an IC only (and not vis-à-vis a 'local committee').
2. 236 (2017) DLT 396
3. (WP (C) No. 9331 of 2024)
4. (Civil Appeal No. 2482 of 2014)
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