Do Courts Rely on Stereotypes Instead of Legal Frameworks in Cases of Sexual Harassment?

On 9 July 2019, the High Court of Delhi in Anita Suresh v Union of India & Ors (2019), delivered a judgment related to sexual harassment at the workplace. News outlets immediately reported on the judgment with headlines that declared that the court had imposed a fine of Rs 50,000 on a woman for filing a “false” complaint of sexual harassment at her workplace (India Today 2019; Hindu 2019). While the articles themselves only went to the extent of reporting facts related to the judgment and its outcome, readers’ comments offer telling insights into people’s opinions on the subject of sexual harassment. The tenor of comments ranges from blanket declarations that false complaints are routinely lodged against senior employees, to recommendations of rigorous imprisonment as penalty to individuals who have filed false complaints of sexual harassment (Bhattacharya 2019). This is not the first time that such measures are recommended and nor will it be the last. The fear of women filing false complaints has repeatedly featured in discussions about sexual harassment at the workplace and continues to be one of the principal oppositions to the existence of the law against sexual harassment. 

In this article, the author looks at the content and reasoning of the Anita Suresh judgment, and assesses it against the legal framework applicable to workplace sexual harassment cases. The focus of this article is to assess how legal standards distinguish cases of false complaints from cases where the complaint cannot be proven. 

The brief facts of the case are as follows. In 2011, the petitioner, Anita Suresh, filed a complaint of sexual harassment with her employer, the Employees’ State Insurance Corporation (ESIC), alleging that another employee of the ESIC had made comments indicating sexual advances towards her and made sexually inappropriate remarks. Given that this was prior to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act),^[1] the ESIC constituted an Internal Complaints Committee (ICC) in accordance with the guidelines set out in Vishaka & Ors v State Of Rajasthan & Ors (1997). The ICC heard the complaint, but due to a lack of evidence, it was unable to establish that such behaviour had been exhibited by the respondent. It recommended relocating the petitioner and the respondent, and did not impose any further penalty or instruction on the parties or the ESIC. The petitioner challenged the ICC’s recommendation on grounds that there was sufficient evidence to prove her complaint and that the penalty awarded was insufficient.   

Review by the Delhi High Court

The High Court of Delhi, while hearing the petition, reviewed the ICC’s proceedings and ruled that the petitioner had filed a false complaint. The court does not appear to have gone into the merits of the complaint. Its basis for the ruling was that, when questioned by the ICC, the petitioner could not remember who may have been witness to the sexual advances. Additionally, the court said that none of the people examined at the time reported witnessing any such conduct by the respondent. It also said that the petitioner had not mentioned the exact comments made by the respondent to the ICC. On these grounds, the court ruled that the complaint appeared to be false and seemed to have been filed with “some ulterior motive.” The court went on to examine the petitioner’s past service record and noted that she had been subject to disciplinary action on work-related issues on two occasions. It is unclear as to why her service record was relevant to the case discussed, but the court devoted significant attention to it.^[2] 

The court concluded by stating that her writ petition (against the order of the ICC) was without merit and stood dismissed. A monetary penalty was imposed on the petitioner and the respondent was granted the opportunity to initiate action against her for filing a “false complaint.” 

What Does the POSH Act Say?

Under the POSH Act, there is a specific provision inserted to deal with false complaints. Section 14 of the Act specifically states that if the ICC, during the course of the investigation, finds that any complaint has been falsely or maliciously filed, or that any evidence brought before the ICC is false, it can recommend a penalty to be imposed on such person(s). This section was inserted amidst much concern that women are “prone” to misuse rights-based legislations. When the POSH Act was evaluated by the Parliamentary Standing Committee in 2011, they observed that this section should not deter women from filing complaints (Rajya Sabha 2011). As a result, two key provisos had been inserted into the section. First, that the inability to prove a complaint does not render it false. Second, that malicious intent has to be specifically established before disciplinary action is recommended against the complainant. 

The principle behind these provisos is that no person should be penalised for bringing forward a complaint only because they are unable to prove it. As is common knowledge, a majority of instances of sexual harassment (whether at the workplace or elsewhere) happen in places or situations where evidence is difficult to come by. In a workplace, sexually coloured remarks and physical advances can be made behind closed doors, where there are no witnesses, no recordings, no video footage, and indeed nothing but the word of the victim against the word of the perpetrator. It is the role of the ICC to find evidence and establish whether the harassment occurred or not. However, despite the ICC’s best efforts, it is likely that there will be cases where the ICC will be unable to reach a conclusion due to lack of evidence. In such cases, the complaint will not be termed “false” or “malicious,” and the respondent will not be held guilty of sexual harassment. For a complaint to be considered false or malicious, the ICC needs to specifically show that the complainant intentionally and maliciously filed a complaint that she knew to be untrue. In this manner, the law does seek to establish a balance between the possibility of misuse and the preservation of an individual’s right to file complaints. 

Legal Framework Disregarded by the High Court

The judgment, however, is in clear and gross violation of these principles. First, the court disregarded the first proviso to Section 14 and ruled that because the petitioner was unable to produce evidence to support her claim, she must have filed a false complaint. The effect of this ruling is twofold. First, it is a clear derogation from the principle set out in the POSH Act, and second, it has the potential to deter more women (or men) from coming forward with their complaints owing to the fear that a lack of evidence will eventually label them as the wrongdoer. Although the POSH Act was not applicable in 2011, when the company’s ICC heard the case, the High Court of Delhi ought to have paid heed to the concepts set out under the current law, given that they are based on principles of equity and justice.

Furthermore, while the court made a blanket statement that the complaint was filed with an “ulterior motive,” it provided no concrete evidence for this ruling in the judgment. The court did reproduce the petitioner’s disciplinary record at her workplace, but in no way did it identify a tangible or convincing link between her record and the alleged “malicious intent” behind her sexual harassment complaint. 

One may even argue that in the process of trying to settle the case, the court overlooked the realities of sexual harassment at the workplace. It is rarely something that will have direct witnesses or evidence, and that is what precisely makes it an insidious hindrance in women’s participation in the waged workforce. The judge, in this case, seems to have gone along with the trope that women are prone to lie and misuse the law, and for good measure, cited past misconduct to discredit the petitioner. 

Questions of Equity 

“What can men do to protect themselves against the possibility of a false complaint?” This is a common question that comes up during legally mandated anti-sexual harassment trainings. It leads one to wonder why people feel the need to assume that complainants or plaintiffs are liars or abusers of a measure only when it is intended to uplift a disadvantaged group. For instance, despite wide knowledge regarding the occurrence and possibility of insurance fraud, there is no discourse condemning the existence of insurance policies. 

During discussions with employees in corporate offices in Bengaluru, as a part of my professional experiences, one can see a discernable wave of anger and frustration at the fact that women are given the “freedom” to talk about their experiences, not just on social media, but also through the constitution of a decentralised ICC, which look into complaints of sexual harassment at the workplace. Common points of discussion include the loss of reputation that a man faces because of a “false” complaint, the potential of women “misusing” any rights given to them, and most jarringly, the opinion that sexual harassment is either exaggerated or non-existent. From Section 498A of the Indian Penal Code (which criminalises cruelty towards a woman by her husband or in-laws) to the POSH Act, rights-based laws that seek to safeguard women are met with intense anger, criticism, and even contempt by certain groups.

However, these laws exist because violence and discrimination against women are systemic and pervasive in India and across the world. The objective of these laws is not to place women at a higher position of power than men. Rather it is to provide them with opportunities and rights to enable them to have an equal standing. By failing to adhere to the principles of equity and subscribing to stereotypes about women’s behaviour, the courts will do a disservice not only to the women of this country, but also the laws that seek to empower them.