The recent allegations of sexual harassment against TVF founder and CEO Arunabh Kumar have ignited a lot of debate about sexual harassment at the workplace, and what the right procedures for inquiry and investigation are for these.
Interestingly, Mr Siddiqui is not representing any of the women in this case, but has filed this case of his own accord, citing his frustration with the lack of action being undertaken by the police against Kumar, despite the deluge of complaints against him.
But how and why is this happening? Can a sexual harassment complaint actually be filed by someone other than the accuser? And what happens to the accused at the end of it all?
Who Can Make a Complaint Under the Sexual Harassment Act?
The procedure for complaints under the Sexual Harassment Act is very specific.
Complaints have to be made by the “aggrieved woman”, i.e., the woman who has faced sexual harassment at the workplace. She will need to file an official complaint with the ICC at the workplace within three months (extendable to six months, if the victim could not have made the complaint earlier) of the incident she believes constitutes sexual harassment.
Once the ICC receives a complaint with the relevant evidence, it must conduct an inquiry into the complaint.
There are some exceptions when someone else can file the complaint on behalf of the aggrieved woman, in the event that she is unable to make the comment, whether through physical or mental incapacity, or by virtue of being dead.
What is important to note is that technically, until an official complaint is filed with a employer’s ICC, the company is under no obligation to conduct an inquiry. As the posts by Indian Fowler and other accusers of Arunabh Kumar do not constitute complaints under the Sexual Harassment Act (and were likely to be time-barred even if they were), this meant that no actual inquiries or investigations were likely to take place at TVF.
As a result, one avenue of action against Kumar for his transgressions was entirely unavailable.
What About a Case Under the IPC?
Complaints of sexual harassment at the workplace can also be made under various provisions of the IPC. These can be made regardless of whether a complaint was made under the Sexual Harassment Act or not.
The allegations of sexual harassment against disgraced former TERI director, RK Pachauri, were made under the IPC by his accuser, for instance.
A key difference in the procedure for cases under the IPC, however, is that there is no requirement for the accuser to file a complaint with the police. The sexual harassment offences under the IPC are cognizable offences. This means that the police can launch an investigation into allegations of such offences without the filing of a complaint or FIR (see section 157 of the Code of Criminal Procedure).
Investigations into cognizable offences can be launched on the basis of knowledge obtained by the police through any source – their own intelligence, or information provided by any person.
What Mr Siddiqui has done is essentially prod the police into doing their duty, a duty they should themselves have recognised in light of the sheer volume of public accusations against Kumar, including by women who were not claiming anonymity.
What are the Consequences for the Person Accused of Sexual Harassment?
The filing of a criminal case, as against mere proceedings under the Sexual Harassment Act, has crucial consequences for the accused.
Even if an inquiry by an ICC under the Sexual Harassment Act finds an accused guilty, the accused is unlikely to suffer any particularly severe consequences. At worst, the perpetrator may be fired and made to pay compensation to the accuser. In other cases, the ICC may direct them to issue an apology, block their promotions, or dock their pay, which hardly send much of a strong message out against their conduct.
Discretion rests with the ICC, which can be problematic in a situation where the accused has a lot of influence in the organisation.
Arunabh Kumar’s status at TVF, for instance, would very likely have prevented any strict action being taken against him if an inquiry were conducted.
With the cases under the IPC, on the other hand, the consequences of a guilty verdict are much more severe:
The interim consequences are also much more stringent. During the inquiry into a complaint under the Sexual Harassment Act, the law does not require any action to be taken against the accused. For sexual harassment offences under the IPC, however, the accused can be arrested and kept in custody, subject to regular rules on bail.
The major disadvantage of a case under the IPC as against under the Sexual Harassment Act, is that a case under the IPC takes much longer to come to fruition.
The allegations against RK Pachauri, for instance, were made in February 2015, and evidentiary hearings are still ongoing today. In contrast, an ICC inquiry into a complaint under the Sexual Harassment Act has to be completed within 90 days of the complaint being made, and its directions implemented within 60 days of being provided to the employer.
(The writer is a lawyer qualified to practice in India, England and Wales and can be reached @VakashaS. He is currently working with a boutique tax advisory firm in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)