Serein

False complaints under the PoSH law

Faakirah Junaid

- May 12, 2021

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 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

  1. 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.
  2. 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.
  3. The ICC 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.

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Abhishek is a seasoned professional with a wealth of experience in finance and corporate governance. With over 15 years of expertise as a qualified Company Secretary, he has made significant contributions to the finance departments of companies within the real estate and startup sectors.
 
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Dr. Ishani Roy

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Ishani founded Serein to provide a data and research-based approach to solving DEI challenges at the workplace. She advises company leaders, startup founders, and venture capital firms on industry best practices to increase diversity and design a DEI roadmap.

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Chryslynn leads the product development of Serein’s DEI SaaS tool. She designs learning content and strategic insights for companies to measure their DEI growth, and achieve bias-free recruitment and psychological safety.

Chryslynn is a regular columnist with publications like ‘LiveMint’ and ‘The Hindu’ where she writes about unconscious bias, prevention of sexual harassment, and company culture.

Before Serein, she was a Gandhi Fellow working in rural Rajasthan to address educational leadership and gender equity in government schools. She graduated from Azim Premji University in Bangalore with a Master’s in Education where she specialised in gender and sexuality education.

Bianca D’Costa

Head of PoSH: India, Global

Bianca leads the compliance partnerships and workshops on anti-sexual harassment, anti-harassment and anti-discrimination laws in India, South East Asia, Europe, and the USA. She has 100+ hours of experience consulting on sexual harassment investigations in the workplace.

Bianca designs gamified learning modules for a unique and impactful learner experience on topics like gender inclusion, PwD inclusion, LGBTQIA+ inclusion, and regional inclusion among others. 

Before Serein, Bianca worked in hospitality for 5 years with Emirates Airlines. She holds a Bachelor’s degree in Political Science from St. Xavier’s University, Mumbai. She is presently pursuing a Master’s degree in Gender and Sexuality in Global Politics from SOAS University of London.

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Head of Operations

Aparna is leading the finance and operations at Serein. She has also been responsible for Serein’s online platform, customer management, and marketing.

She works closely with Serein’s 500+ long-term partners to ensure they are compliant with the Prevention of Sexual Harassment (PoSH) law. Aparna is a workshop facilitator on topics like the prevention of sexual harassment at the workplace in languages like Tamil, Telugu, and Kannada.

Aparna Pandurangan holds a degree in Electronics and Communication Engineering from Anna University, Chennai. 

Faakirah Irfan

Head of Legal

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She has 150+ hours of experience consulting on sexual harassment investigations in the workplace. Her legal research at Serein includes policy analysis, human rights, women’s rights, and document drafting.

Faakirah is an experienced legal professional. She completed her Bachelor’s degree in law with a focus on women’s rights and policy analysis from the University of Kashmir. She holds a Master of Law degree specializing in alternative dispute resolution from O.P Jindal School of Law.

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Arathi Kannan

Head of DEI: India, Global

Arathi leads the design and execution of DEI measurement tools for global partners. These include Serein’s Diversity Index, the scope of unconscious bias in recruitment and promotions, and the scope of unconscious bias in external messaging. 

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Thejaswini holds a Bachelor’s degree in Computer Application from Field Marshal KM Cariappa College, Kodagu.

Bhavini Pant

Safety and PoSH expert

Bhavini serves as a PoSH external member for 30+ companies in industries like education, healthcare, IT, Pharma, and more. She has 70+ hours of experience consulting on sexual harassment investigations in the workplace and supporting partner organizations on the legal procedure and best practices for workplace safety.

Before Serein, Bhavini worked as an archivist at Tata Institute of Fundamental Research, Mumbai, and as an editorial assistant for IIT Bombay’s PR and Alumni Associations department.

She has a Master’s degree in Education from Azim Premji University where she worked extensively with the management on anti-sexual harassment legal implementation. Her work involved the interpretation of the law in a university as a workplace and an educational institution for adults. 

Siri Prasad

Safety and PoSH Expert

Siri Prasad is a Safety and PoSH Expert at Serein and serves as an External Member of the Internal Complaints Committee (ICC) for Serein’s clients. Her work is not limited to, but includes advising in legal procedures, best practices for safe work cultures, and reviewing of PoSH policies and labor law compliance.

Siri is a Gold Medallist and holds a BBA, LLB (Hons.) from Christ University and a Masters in Science (International Employment Relations) from the London School of Economics and Political Science, where she also served as the EDI Officer.

Rishab Prasad

DEI Specialist

Rishab is passionate about creating long-term partnerships with Serein’s customers. He is responsible for marketing, operations, customer onboarding, contract writing, and relationship building. Rishab uses his directing and filmmaking skills to design engaging content for Serein’s social media platforms.

Rishab holds a Bachelor’s degree in Economics with Honours from CHRIST University, Bangalore. He has directed more than nine short films on topics like stigmas of menstruation, widowhood, and adoption.

Kirtika N

Safety and PoSH expert

Kirtika is an expert speaker and workshop facilitator on topics like sexual harassment awareness, bystander intervention, and anti-harassment redressal mechanisms. She has developed learning content for investigating committees on topics like witness cooperation in a workplace sexual harassment inquiry proceeding. 

Kirtika serves as a PoSH external member for 30+ companies in fintech, healthcare, business management, gaming, and more. She has 50+ hours of experience consulting on sexual harassment investigations at the workplace and supporting partner organisations on legal procedure and best practices.

She has a Master’s degree in Counseling Psychology from Montfort College, Bengaluru, and has experience working as a trainee counselor.

Sharanya Venkataraghavan

Safety and PoSH expert

Sharanya serves as a PoSH external member for 15+ companies in e-commerce, fintech, healthcare, SaaS, and more. She supports partner organisations on legal procedures and best practices to build safe work cultures.

She has been involved in the review of PoSH policies, labour law compliances, and research regarding the risk of secondary victimisation of complainants under the PoSH Act.

Sharanya graduated with BBA, LLB (Hons.) degree from Symbiosis Law School, Pune. She has experience in PoSH and employment law with notable law firms like Shardul Amarchand Mangaldas and Co., J. Sagar and Associates, among others.

Nandini Abraham

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Nandini is passionate about creating engaging and impactful reports, toolkits, and playbooks for Serein’s customers.

Nandini holds a Bachelor’s degree in Economics, Mathematics & Statistics from St. Joseph’s College, Bangalore.

Nithya R

HR and Compliance Lead

Nithya drives operational excellence within the HR function. She ensures that Serein maintains the highest standards of HR practices and ethical conduct. Her role extends beyond traditional HR responsibilities as she also serves as an External Member of the Internal Complaints Committee (ICC) for Serein’s clients, specialising in preventing workplace harassment through the PoSH vertical.

Nithya has graduated in Commerce from the University of Lucknow and has rich experience in hiring and retaining the best talents in the industry with companies like BukuWarung and Belong.co.

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Sri Padmavathi C specialises in providing accounting consulting services to companies. She helps in assisting & maintaining Serein’s Books of Accounts, GST, TDS, PT filing, financial statements preparation & audit review.
 
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Anisha Debnath

PoSH and DEI Workshops Facilitator

As a PoSH and DEI Workshops Facilitator, Anisha is primarily responsible for conducting sessions and facilitating conversations that enable building of safe and inclusive workplaces for all. Anisha also undertakes in-depth research into various Diversity, Equity and Inclusion issues that plague our work cultures today. All of this research goes into designing bespoke sessions and curating interactive learning experiences for several of Serein’s partners. 

Anisha has a background in History, especially in the history of gender and early feminism in colonial South Asia. 

Anisha has a Bachelor’s degree in History (Hons.) from Gargi College, University of Delhi. She has also studied for an MPhil in World History from the University of Cambridge, United Kingdom.

Aseem Deuskar

Inclusive Workspace Architect

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Aseem is an Inclusive Workspace Architect dedicated to reshaping workplace diversity and accessibility. He is skilled in conducting comprehensive accessibility audits and implementing inclusive design solutions.


Aseem is passionate about creating environments that foster equal opportunities

He holds a Bachelor’s degree in Architecture and a Master’s degree in Urban and Regional Planning.

 

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