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I Do Not Have Any Evidence and There Were No Witnesses. How Will the IC Take Up My Complaint?

Faakirah Junaid

- May 29, 2020

The Internal Committee (IC) is a quasi judicial body, which works in the sphere of prevention of sexual harassment in workplaces in India. Even though the IC has certain legal obligations as per the law, they also have a social responsibility towards the survivor of sexual harassment. The appointment of the IC under the 2013 Act is to provide easier access to judicial intervention for the survivors.

As the experience of sexual harassment can be overwhelming, the IC is expected to create an environment which makes the Complainant feel safe, heard and understood. The Committee members should follow methods of investigations that are empathetic and unbiased thus creating an accountable and safe space for redressal. This in turn builds credibility in the redressal processes allowing more confidence amongst the survivors and bystanders to report cases of sexual harassment.

When deciding to file a complaint, a survivor is often faced with the question – “I do not have any evidence and there were no witnesses. How will the IC take up my complaint?”

Which leads us to the question: Does the IC look at “evidence”  beyond reasonable doubt or through the lens of balance of probabilities?

First let’s try to understand both these principles; Beyond reasonable doubt is the standard of proof required only for criminal courts while a balance of probabilities suggests that more likely than not the incident has occurred. In civil proceedings, like the IC inquiry under the 2013 sexual harassment Act, the standard of proof is preponderance of probabilities.

Situation of sexual harassment often occur in private. Research suggests that in cases of sexual harassment the Complainant is on trial as much as the Respondent. This puts immense pressure on the Complainant to have proof or witnesses to back their complaint without which many fear they will not be believed or fear that the lack of evidence will tarnish their own reputation. This emotional trauma in addition to the trauma of the sexual harassment itself, often deters a survivor from reaching out to the IC. More faith should be devised in the systems put in place. While every legal process must be fair, the lack of proof shouldn’t serve as armour to the perpetrator.

In the case of Tezpur University and Ors. vs. C.S.H.N. Murthy 2016, the court was of the opinion that,  “With respect to the vague complaint, it must be borne in mind that having suffered harassment of sexual nature at the hand of her HoD, the Complainant was in a state of shock and dismay. Under such circumstances she could not have been expected to be in a composed state of mind to pen down every minute detail of the entire incident on the very next day of the incident.”

In Medha Kotowal Lele, 2012 case the Supreme Court considered “The standard of proof is preponderance of probability and there is no need to establish the charge of sexual harassment beyond reasonable doubt as in a criminal proceeding. All that is necessary is that the inquiry must be conducted in a fair and transparent manner and in due compliance of the principles of natural justice, after giving full opportunity to the delinquent to defend his case.

As explained in the judgement by the Supreme Court both the survivor and the respondent should be given fair, equal and just hearing. The IC members have the responsibility to look at complaints with a lens of balance of probabilities. Which means that they are equipped to take complainant testimony or indirect evidence as the basis of establishing sexually harassing behaviour. The Internal Committees is responsible to deliver its decision, taking into account the seriousness of the act and the mental/emotional trauma that the survivor has experienced. The IC’s role is to deter such acts and serve a pillar upholding equality, justice and fairness.

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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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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.

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.

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Bhavini Pant

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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. 

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Faakirah Junaid Rafiquee

Head of Legal

Faakirah is a legal professional and expert facilitator on topics like anti-sexual harassment, anti-harassment and anti-discrimination laws in India, South East Asia, Europe, and the USA. Faakirah has conducted 100+ training sessions on the prevention of sexual harassment for employees and internal committee members.

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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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. 

Bianca D’Costa

Head of PoSH: India, Global

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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.

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Before founding Serein, Ishani was a scientist at GE Research working in the Aerospace Lab. She holds a Ph.D. in Applied Mathematics from Brown University on developing mathematical models to solve Astrophysics problems. She did her Post-doctoral studies at the University of Oxford and St. Thomas Hospital in Biomathematics.

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