The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the PoSH Act, was enacted to protect women from sexual harassment at the workplace. It marked an important step towards ensuring dignity, equality and safe working conditions for women. However, while discussing the protection afforded to complainants, the rights of the person accused of misconduct—the respondent—are often overlooked.

Sexual harassment complaints require a sensitive and careful approach so that women do not feel discouraged from reporting incidents. At the same time, the fundamental principles of a fair inquiry cannot be ignored. The question is not whether the complainant should be protected or whether the respondent should be heard. Both are essential requirements of a fair justice system.

A Complaint Is Not a Finding of Guilt

One of the major concerns in sexual harassment complaints is the tendency to assume that the filing of a complaint automatically establishes some form of misconduct.

In certain cases, employees may be suspended, transferred or stripped of their responsibilities soon after a complaint is filed. Their professional reputation may suffer, and they may even experience social isolation within the organisation before the investigation has been completed. Such circumstances can create the impression that the respondent has already been declared guilty.

The PoSH Act provides a mechanism for investigating complaints. It does not authorise an employer or an Internal Committee (IC) to presume that a person is guilty merely because an allegation has been made. Instead, the complaint must be examined on the basis of the information provided, supporting evidence, statements of the parties concerned and other relevant material.

The complainant must be treated with dignity and heard without intimidation throughout the investigation. Equally, the respondent must be informed of the allegations and given a reasonable opportunity to explain their position and present a defence.

What Does the PoSH Act Say About the Respondent’s Rights?

Section 11 of the PoSH Act provides for an inquiry into complaints by the Internal Committee or Local Committee in accordance with the applicable service rules and prescribed procedures. The PoSH Rules, 2013, provide further guidance on how such inquiries should be conducted.

Under Rule 7, the procedure for conducting an inquiry is outlined. The respondent is required to submit a response to the complaint, along with supporting documents and details of witnesses, within the prescribed timeframe under Rule 7(3).

Importantly, Rule 7(4) requires the inquiry to be conducted in accordance with the principles of natural justice. This means that the respondent must be made aware of the allegations and given an opportunity to examine the material relied upon and present a defence.

A fair investigation cannot take place if one party is fully informed of the allegations while the other is left to guess the case they are required to answer.

Natural Justice Does Not Weaken the Protection of Women

There is sometimes a misconception that extending the principles of natural justice to the respondent may compromise the protection available to the complainant. This is not correct.

Natural justice does not mean that the complainant must be subjected to aggressive questioning, embarrassment or unnecessary attacks during the proceedings. Nor does it allow the respondent to deliberately delay the inquiry or intimidate witnesses. It simply requires the investigation to be fair and impartial.

The Internal Committee can regulate the manner in which the complainant and witnesses are questioned, ensuring that irrelevant, offensive or intimidating questions are avoided. At the same time, the respondent must have a reasonable opportunity to challenge the allegations and the evidence presented.

The objective of the inquiry should be to establish the truth, not to turn the proceedings into a contest between the two parties.

Supreme Court’s Important Observations in the Aureliano Fernandes Case

An important judgment in this regard was delivered by the Supreme Court in Aureliano Fernandes v. State of Goa (Civil Appeal No. 2482 of 2014), decided on May 12, 2023.

The Supreme Court examined several procedural shortcomings in the investigation of sexual harassment allegations against a university professor. The inquiry had been conducted in haste, with multiple hearings scheduled within a short period. The respondent had not been given a reasonable opportunity to prepare a defence, and his request for additional time had not been adequately considered.

The Supreme Court made it clear that the sensitive nature of sexual harassment complaints does not justify ignoring the principles of natural justice or procedural fairness.

The Court emphasised that a person accused of misconduct must be informed of the allegations, provided with the material supporting them and given a reasonable opportunity to defend themselves. It set aside the termination decision and directed that the inquiry be conducted afresh in accordance with the law.

The judgment is significant because it recognises that procedural fairness is not a mere technical formality. It is essential to the legitimacy and credibility of the final decision.

Can the Respondent Cross-Examine the Complainant?

The question of cross-examination is among the most debated aspects of inquiries conducted under the PoSH Act.

Although the Act and its Rules do not prescribe a detailed courtroom-style procedure for cross-examination, this does not mean that the respondent can be denied a reasonable opportunity to challenge the evidence.

The absence of a specific procedure for cross-examination should not be interpreted as permission to exclude the respondent from questioning the allegations. The Internal Committee must ensure that the process remains fair while protecting the dignity, privacy and safety of the complainant.

One appropriate approach is to allow questions to be submitted through the Internal Committee rather than permitting direct and unrestricted questioning between the parties.

The Kerala High Court, in Abraham Mathai v. State of Kerala (2024), also recognised the importance of providing an opportunity to question the complainant and witnesses in the interest of natural justice.

It is important to distinguish between the right to challenge evidence and the right to personally interrogate the complainant. The respondent should receive a reasonable opportunity to test the evidence, but this does not necessarily translate into an unrestricted right to question the complainant directly.

Can the Respondent Be Denied Legal Representation?

Another issue that arises during PoSH inquiries is whether the respondent can be represented by a lawyer.

Under Rule 7(6) of the PoSH Rules, neither party is permitted to engage a legal practitioner to represent them during the inquiry before the Internal Committee. Therefore, the respondent does not have an automatic right to have an advocate appear before the IC.

However, the absence of legal representation does not reduce the Internal Committee's responsibility to conduct a proper and impartial investigation. The committee must explain the procedure, ensure that both parties understand the proceedings and provide them with a fair opportunity to present their respective cases.

The restriction on legal representation should not become a reason for procedural unfairness.

Suspension Before Completion of the Inquiry

Suspension is another area in which the rights of the respondent require careful consideration.

Employers may sometimes decide to suspend an employee accused of sexual harassment to protect the complainant, prevent interference with the investigation or maintain discipline in the workplace. Section 12 of the PoSH Act provides for specified interim reliefs during the pendency of an inquiry.

However, suspension should not automatically follow every complaint. The employer must consider the circumstances, the nature of the allegations, the possibility of evidence being influenced, workplace safety and the availability of alternative measures, such as a transfer or a change in reporting arrangements.

The respondent should not be made to perceive suspension as a punishment imposed before the findings have been reached. It should remain an interim measure intended to protect the investigation and those involved, rather than an indication of guilt.

The Inquiry Report and the Right to Know the Findings

Section 13 of the PoSH Act deals with the inquiry report and requires it to be provided to the concerned parties in accordance with the provisions of the Act. The employer is also required to act on the committee's recommendations as prescribed by law.

The respondent should not be kept uninformed about the findings of the inquiry. If the employer proposes dismissal, termination or another serious disciplinary measure, the applicable service rules and principles of natural justice must be followed.

Without being informed of the findings and the material on which an adverse decision is based, the respondent may be unable to effectively challenge that decision.

Section 18 of the Act provides for an appeal against recommendations or actions taken under the Act, subject to the applicable service rules and statutory provisions. Access to the relevant findings is therefore an important part of ensuring that the appeal process remains meaningful.

The Real Challenge: Maintaining a Fair Balance

The PoSH Act was introduced to address a serious and long-standing problem that has affected women's dignity, equality and participation in the workplace. The inquiry process must never become insensitive, intimidating or discouraging for women who come forward with genuine complaints.

At the same time, the law must not be applied in a manner that treats an allegation as an established finding of guilt. The Internal Committee carries a significant responsibility: it must protect the complainant from intimidation, maintain confidentiality, assess the evidence impartially and provide the respondent with a fair opportunity to answer the allegations.

The committee must also avoid unnecessary delays, premature conclusions and undue influence from management or human resources departments. An unfair investigation does not strengthen the complainant's case. Instead, it undermines confidence in the entire process and may leave the final decision vulnerable to legal challenge.

Fairness Strengthens the PoSH Act

Protecting women and ensuring a fair investigation are not conflicting objectives. Both are fundamental to the effective implementation of the PoSH Act.

A genuine complaint must be taken seriously, and the respondent must be given a reasonable opportunity to respond. The Internal Committee must not become an instrument of victimisation or institutional convenience.

The true test of the PoSH Act is not simply how quickly an organisation disposes of a complaint. It is whether the investigation is fair, whether the evidence has been properly considered and whether the final decision can withstand legal scrutiny.

Justice cannot be achieved by ignoring either side of the process. A legitimate and impartial investigation does not weaken the protection of women; it strengthens the credibility of the law itself.

(Ms Joshi, a former AICC member, is a well-recognised lawyer-cam-paigner for female rights, and has authored “Breaking the Silence: A Handbook on the PoSH Act”.)