When we look at understanding the concept of inquiry it’s important to note that the law has laid down the guideline that the ICC has to necessarily follow the principles of natural justice in conducting their inquiry.
What does “the principles of natural justice” mean?
A complaint relating to sexual harassment is a sensitive matter. It has been well explained by the court in the following case law:
In the case of Ashok Kumar vs University of Delhi, the court said:
“That is a sexual harassment complaint, sometimes the complainant may not have the courage to depose all that has happened to her at the workplace. There may be an atmosphere restraining the free expression of the victim’s grievance before the ICC. The privacy and secrecy of such victims are also required to be protected. It is to be noted that verbal cross-examination is not the sole criteria to contradict or contradict any statement given by the aggrieved before any authority.”
Here, the court examines that in the case of a sexual harassment complaint, the complainant may not have the courage or the emotional stability to speak about the trauma they have experienced. This could be owing to a lack of safe space to express themselves in front of the committee. It is imperative to uphold the privacy of the complainant.
“Primarily, in a sexual harassment complaint, the ICC has to verify and analyze the capability of the aggrieved to depose before them fearlessly without any intimidation. If ICC is of the view that the aggrieved is feeble and cannot withstand any cross-examination, ICC can adopt such other measures to ensure that the witness’s statement is contradicted or corrected by the delinquent in another manner. Fair opportunity, therefore, has to be understood in the context of an atmosphere of free expression of grievance.”
This case law further elaborates that:
“Fundamental principles relating to the principles of natural justice is that when prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict.”
The judges acknowledge that it can be difficult for a complainant to express themselves with the respondent present in the same room. They deliver on the matter by upholding the “free expression “ of the complainant, which is very difficult to achieve in presence of the respondent.
The court, therefore, puts the onus on the internal committee to create another mechanism to cross-examine the status of the complaint that doesn’t include the victim and respondent being in the same room.
Takeaways for the Internal Committee :
- The inquiry process should be confidential and a safe environment for the victim to be able to communicate the incident without any fear.
- To formalize a mechanism where the complainant and respondent are not in the same room. This is to ensure that the complainant’s statements are not corrected or contradicted by the respondent.
- The complainant should be given a safe space and the fair opportunity to express themselves freely. The ICC must ensure an atmosphere that fosters the same, specifically focusing on being free from any fear of retaliation.
Glossary of legal maxims used:
Principle of natural justice: This principle is used while adjudication of a case. Where a person is guaranteed a fair, unbiased hearing.
For eg: Both the respondent and the complainant should be given equal opportunity to represent their case without any discount. The act of making sure that both sides have had adequate representation means that principles of natural justice have been followed.
Another fact that the juror shouldn’t be related to either parties so as to eradicate bias which again is a principle of natural justice.
Prejudicial statements: statements that can cause a preconceived opinion. In legal cases they can change the course of the case and result in a partial/ biased judgment.
For eg: if a person has been convicted of harassment before and that is being used as a statement against him in the present case. Hence the statement can build a bias on the jurors mind who would likely believe that the person would’ve committed the act again.
Free expression: In the given article it can be understood as the ability to express one’s opinion free from any fear. Here we understand that the victim would fear harm or it would harass them mentally if they’re cross questioned in front of the accused. The courts identify the lack of safety the situation would put them in hence hindering the ability of free speech.