The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the PoSH Act, was enacted to ensure a safe and dignified work environment for women. While the Act is primarily aimed at protecting women from sexual harassment, it also recognises that the respondent, or the person accused, has certain rights to ensure the process remains fair, unbiased, and in line with the principles of natural justice.
Who is a Respondent?
Under Section 2(m) of the PoSH Act, a respondent is defined as a person against whom an aggrieved woman has made a complaint. In other words, it refers to the individual alleged to have committed sexual harassment in the workplace.
To prevent misuse of the law and ensure due process, the Act clearly outlines a set of procedural and constitutional rights that protect the respondent during the inquiry process.
Procedural rights in an inquiry
- Right to know the complaint- According to Rule 3 of the PoSH Rules, the respondent has the right to know the nature of the allegations made against them. They must be provided with a copy of the written complaint and any supporting documents before being called in for a hearing. This ensures that the respondent is fully aware of the charges and can prepare an appropriate defence.
- Right to respond- The respondent is entitled to ten working days from the date of receipt of the complaint to submit a written response. This response can include supporting evidence, documents, or a list of witnesses they wish to call upon in their defence. The Internal Committee (IC) must consider these submissions before proceeding further.
- Right to representation and evidence- The respondent has the right to substantiate their case with relevant documents or testimonies. While the PoSH Act doesn’t permit legal representation during the inquiry, respondents may be assisted by colleagues or internal representatives, depending on company policy.
- The Right to Be Heard- Sections 11 and 13 of the PoSH Act guarantee both parties, the complainant and the respondent, an equal opportunity to be heard. This includes access to the findings and inquiry report once the IC completes its investigation.
The foundation of this right rests on the principles of natural justice, which are embedded in the Indian Constitution under Article 14 (Right to Equality) and Article 21 (Right to Life and Liberty).
Two key principles apply to PoSH inquiries:
“Audi Alteram Partem” (Hear the other side)
This means no one should be condemned unheard. The respondent must be given a fair chance to present their side, provide evidence, and cross-examine witnesses to ensure that the inquiry is balanced and objective.
“Nemo Judex in Causa Sua” (No one should be a judge in their own cause)
This ensures that the Internal Committee functions impartially, without bias or preconceived notions. The IC must maintain neutrality and avoid conflicts of interest when handling complaints.
In alignment with these principles, Rule 7(4) of the PoSH Rules states that:
“The Complaints Committee shall abide by the principles of natural justice in the procedure of inquiry, rendering an unbiased examination and enquiry of complaints and similarly in the process of attaining justice.”
This means that fairness and impartiality are not optional; they are legal obligations during every stage of the inquiry.
Right to confidentiality
Confidentiality is one of the cornerstones of the PoSH framework. The Act explicitly prohibits public disclosure of any information related to the complaint or the inquiry. According to Section 16, the following details must not be disclosed to the press, media, or public:
- The identity, name, and address of the aggrieved woman, respondent, or witnesses.
- Information about the conciliation or inquiry proceedings.
- The recommendations of the Internal Committee or Local Committee.
- The actions taken by the employer or district officer.
This protection ensures that the reputation, dignity, and privacy of both the complainant and the respondent are preserved.
A landmark case, P v. A & Ors., emphasized the importance of confidentiality. The court observed:
“It is imperative, therefore, to protect the identities of the parties from disclosure, even accidental disclosure, in these proceedings. This is in the interest of both sides.”
The judgment also directed the establishment of internal protocols to ensure that names and sensitive details remain strictly confidential, underscoring that both the complainant’s and the respondent’s identities are protected under law.
Upholding Fairness in the Quest for Justice
The PoSH Act’s strength lies in its balance, it protects women from workplace harassment while ensuring that the accused is not unfairly treated or condemned without due process. The Internal Committee plays a critical role in maintaining this equilibrium.
Every IC must:
- Conduct inquiries without bias or prejudice.
- Give the respondent a reasonable opportunity to present evidence and witnesses.
- Ensure that cross-examinations are fair and non-intimidating.
- Maintain strict confidentiality throughout and after the process.
- Deliver findings based solely on substantiated evidence and testimonies.
More to Know
If the respondent refuses to pay compensation, The IC can recommend that the employer recover the amount from the respondent’s salary or dues, or as per applicable recovery procedures.
If the respondent is a star performer: Performance or position cannot override accountability. All employees, regardless of rank, are equally subject to the PoSH Act.
If the respondent retaliates: Any act of retaliation or intimidation towards the complainant or witnesses constitutes a separate misconduct and can lead to disciplinary action.
Ultimately, justice under PoSH is not about punishment, it’s about process. Ensuring that both parties are treated fairly, that confidentiality is respected, and that truth is established through evidence is what keeps workplaces both safe and just.
Reach out to us at hello@serein.inc to know more.