The PoSH Act includes a specific section that has been constructed to cover “false complaints”. There has been a common belief that the PoSH law gives way to women consistently filing false complaints of sexual harassment.
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).
However, even while constructing this provision, the parliamentary committee believed that the section shouldn’t become the antithesis to women accessing their rights. Therefore, they developed two key provisions in the section.
Section 14 defines what a false complaint is. It is important to note that the mere inability to prove a complaint does not make it a false complaint. A malicious intent has to be established before any disciplinary action is recommended against the complainant. This means that the mere apprehension of a false complaint would not hold enough ground under Section 14, the “intent to create a malicious complaint” has to be proved.
The two provisions were included in the act to ensure women are not penalised for bringing forward cases of sexual harassment owing to their inability to prove it. Therefore, it can be understood that 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 the case of Dr Susmita Banerjee v. Kolkata Port Trust & Ors (2017 SCC OnLine Cal 18079),
“The petitioner was the sole eye witness an incident of sexual harassment at her workplace and was accused of giving a false deposition during the inquiry. However, the calcutta high court adjudged that since there was no foundational basis for the said allegation, all proceedings initiated against the petitioner under section 14 were to be quashed. This tells us that there has to be substantive proof of malice when establishing guilt under section 14.”
In the case of Ms (X) v Union of India, The division bench of the Delhi High Court stated that
“The role of the ICC is not to ‘doubt the veracity of the complaint as it is, in fact, the first point of contact for the woman. That the ICC should be sympathetic instead of being suspicious even before they begin to assess the case. Therefore, the absence of an eyewitness does not dilute the credibility of the complainant. The woman/complainant’s statement has to be seen independently.”
The lawmakers in the act have constructed a difference between what is an accusation that is not proved and a malicious complaint that is filed.
Cases of sexual harassment are globally under-reported. Legislations like the PoSH Act were constructed because violence and discrimination against women are systemic and pervasive. The law that came into being because of a case of sexual violence against a woman at her workplace, is designed to safeguard the rights of a woman in Indian society.
A study by Thomas Reuters Foundation asked respondents which five of the 193 United Nations member states they thought were most dangerous for women and which country was worst in terms of healthcare, economic resources, cultural or traditional practices, sexual violence and harassment, non-sexual violence and human trafficking. It found India to be the most dangerous country for women due to a high risk of sexual violence.
The report stands testament to the fact that India requires stringent legislation to not just promote women’s rights but also to protect the basic human rights of women.
The PoSH law is one such protective safeguard that helps in the execution of the basic human right to live with dignity and without fear.
Takeaways for the ICC
- If a case comes forward that doesn’t produce much evidence, the ICC cannot deem it as a false case. The committee can forward the complaint to HR to keep an eye on the respondent’s behaviour with the complainant.
- In the case where the respondent can prove with sufficient evidence that the complainant has filed a malicious complaint, a thorough inquiry is required to determine that the complaint is false.
- The IC should not assume that the complainant is lying, it’s important to understand that the law was created to protect the complainant/victim and not to deter them from reporting.