Women who have taken the lead in MeToo have convened a public hearing and consultation on Sunday, October 21 between 3pm to 6pm at the Dr MGR Janaki College of Arts and Science for Women. Meanwhile, M Subramani of inmathi.com did a phone interview with Justice (retired) Chandru who had been in the forefront of human rights, labour laws issues as a practising advocate and given landmark judgments as a Judge of the Madras High Court.
What legal recourse do victims of sexual harassment have? Can the cases be prosecuted? What kind of evidence would be needed?
Victims can always have legal course with regard to the assault made against them. The question is what is the legal course available.If it is a case of a penal offence coming under the Indian Penal Code such as assault, sexual harassment, rape etc., then they should file a complaint with the local police station. Then an F.I.R (First Information Report) is registered. Depending on the offence, the trial may take place before a magistrate or a sessions Judge. The burden of proof beyond reasonable doubt is with the prosecution. Normally, in such matters, which take place within the four corners of a premises, outside (third party) witnesses are rare to find. Ultimately, the circumstantial evidence and the documentary evidence produced by the victim alone will be available which should be accepted by the court.
But if it is a case of a complaint to the Internal Complaints Committee (ICC) constituted under Section 4 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 then the complaint will have to be made within one year. Under the 2013 Act, the procedure is more or less like a departmental action against an erring employee. At the maximum, if the charges are proved, the accused can be dismissed from service.
“Mere filing of a defamation suit may not get any gain for the man as he will be in a position of a prosecutor and the victim woman will play the role of a defendant” says Justice (retired) Chandru
How do we determine consent in case of men arguing the incidents as consensual?
If the defence pleaded by the man is one of consent, then it is for him to prove the same by bringing acceptable evidence. In case of an offence relating to rape, if the woman denies consent, then the entire burden is on the accused to prove that there was consent. The Evidence Act forbids questions to be asked regarding the past background of the victim.
What about false allegations?
In case of a prosecution under the IPC or under the Tamil Nadu Prohibition of Harassment of Women Act, 1998, since it is for the prosecution to prove the charges before the trial court no action can be taken against the victim women. Only if there was a attempt to tender false evidence, they can be prosecuted for perjury. However, under the 2013 SHW Act, in case of false complaints, action can be initiated against the woman employee for her action depending upon the findings rendered by the ICC. Whether a case will stand or not depends upon the complaint and the nature of proof tendered.
What if the men named file for defamation? What can victims do?
When a complaint of sexual harassment was made against a Judge of a Supreme Court, he promptly moved the Delhi High Court and filed a civil suit to prevent the proceedings as well as the publication of the news relating to the complaint. In fact the order was even retrospective to the extent that all the URLs on the website were asked to be removed.
Mere filing of a defamation suit may not get any gain for the man as he will be in a position of a prosecutor and the victim woman will play the role of a defendant. This will result in the man getting into the witness stand and being cross-examined on issues relating to A to Z. In case of defamation, a bonafide prosecution of an allegation will not be presumed defamatory. Only a motivated campaign can be taken as defamatory and damages will be quantified by the civil court.