Any activity that is sexual requires consent, which is defined as explicit and voluntary agreement to participate in specific sexual activity. Consent cannot be assumed from the absence of a “no”; a clear “yes,” verbal or otherwise, is necessary. Consent to some sexual acts does not imply consent to others, nor does past consent to a given act imply present or future consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time.

Here are some standards to ensure consent is accurately identified.
1. Consent must be proactive action comprised of the following three components:
• Consent must be voluntary, meaning it is exercised under conditions of free will and thus cannot
be given when the following are present:
> Coercion or pressure
> Threat, intimidation, or fear

• Consent must be affirmative, as indicated through a “yes,” whether expressed verbally or
otherwise. Therefore, consent cannot be inferred from the following:
> Silence
> Passivity or lack of resistance
> Lack of active response

• Consent must be unambiguous. It must be clearly demonstrated through words and/or actions as
mutually understood by both individuals.

2. Consent cannot be given and/or is not valid when an individual is mentally or physically
incapacitated. This includes but is not limited to:
• Sleep
• Unconsciousness
• Intoxication due to drugs, alcohol, or other reasons

3. Consent is contemporaneous to the initiation of every sexual act and can be revoked at any time during
the course of a sexual encounter. Therefore, consent cannot be presumed by a prior or current sexual
or romantic relationship.

The usual perception is that unless a woman protested, resisted or if a woman was not modestly dressed, she was deemed to have consented. Silence, passiveness or ambiguous conduct cannot be construed as consent.

No means No. Yes means Yes and Silence means “NO”

Law also assumes absence of consent if the submission is due to force, fear, threat, fraud or exercise of authority.

Furthermore, to establish unwelcomeness or unwantedness, complainant is not required to prove that she had verbally protested or said “No” or conveyed in any other way that his behavior was unwelcome. It is sufficient for the complainant to establish that she by her conduct or body movement or body language conveyed to the perpetrator her disapproval of his advances. Moving away, not laughing, not participating, avoiding, change of topic, showing disinterest etc are some of the body language signs depicting NO consent.

Case studies – In one of the sexual harassment complaints handled by us, the aggrieved woman was called to the conference room for a knowledge transfer and was touched inappropriately. The woman being a junior executive, felt extremely scared to openly tell him that she is not liking it. When the touch became repetitive, she got visibly upset, and to avoid his advances, told him that “people were moving around, and they would see”. The man continued and she had to run away from the conference room. While conducting the inquiry, the man told the IC that there was consent as the woman never told him to stop and only said that “People are moving around, and they will see.” He assumed that she must be ok with the touch but is scared of people around and hence he continued his advances. He never realized that pulling her hand back, stepping back or running away from room was non-consent. For him, consent meant she verbally telling him “No”.

In another case of sexual harassment in an office party. The woman kept requesting a male colleague to join her for the dance. He initially refused but she was insisting that he join her at the dance floor. Her other colleagues who were around her also started forcing the man to join her since she was requesting him. The man reluctantly joined her. As the music got intense and loud, the man started enjoying the dance. After a while, the lights went dim and the music slow. The man found this as an opportunity to lay his hands on the woman. She kept resisting and throwing away his hands. The man continued groping her and she had to get away and stormed out of the dance floor. She subsequently made a compliant to the IC. During the inquiry proceedings, the man was surprised and asked for justification of the complaint as the act was done with consent. The lady argued that she never gave her consent. He said that she was the one who forced him to dance with her. The man claimed that the entire office saw her pulling his hand to the dance floor. The lady responded saying the consent was only for the dance and not for the inappropriate touch on the dance floor.

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Download the judgement copy here Tripura HC - Shila Debnath vs National Institute of Technology (1686 downloads )

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The petitioner orally informed the indecent behaviour of respondent No. 5 to respondent No. 4. Again on 12.10.2012 at 4 pm during the course of office hours, respondent No. 5 suddenly entered into the Hindi and English Department and started abusing her with filthy language which amounts to outrage the modesty of the petitioner and against reputation of the senior lady professor. He uttered these words in presence of number of professors who have
objected respondent No. 5. Therefore, on 13.10.2013, she made written complaint to the Principal, Government J.P. Verma P.G. Arts and Commerce College, Bilaspur. Thereafter, she again sent reminder letters on 19.12.2012 and 29.12.2012 copy was also sent to respondent No. 4 who became Additional Director, Higher Education.

The petitioner thereafter wrote to her authorities to forward her complaint to the police to file a FIR.  This was as per service rules.  The authorities did not file an FIR. Another stand taken by the authorities was that the said Asst. Professor was employed in another college and hence it is not the same employer.

HC held that:

1. It is on record that the petitioner and the respondent 5 are both government employees and  thus employer is same.  The contention that they are employed in different colleges fails.
2. The government also have failed to discharge their obligation and thus failed to perform their duty of forwarding the complaint to the police.
3. The State Government should see that in future if such exigency arise, any victim of sexual harassment at workplace should not run pillar to post to get her redressal.
4. The other contention raised since respondent 5 is employed in a different college and the alleged act was not at his workplace cannot be construed as sexual harassment.  HC held that is is not a valid ground as it is a workplace under Sec. 2(o) of the POSH Act, 2013.
5. The HC directed that the Secretary / Director / their authorized persons from Higher Education or Principal of the College where the petitioner was posted, shall initiate proceedings against respondent No. 5 for registration of FIR on the basis of complaint made by the petitioner and materials collected by the facts finding Committee within two months from the date of receipt of copy of this order.
6. It is made clear that this Court has not given any opinion on the merits of the case. On registration of FIR, it is for the investigating authority to investigate the matter and submit its report to the concerned trial Court as per the procedure prescribed under the Criminal Procedure Code.

Download the judgement copy here: Metis POSH - Case Law- Dr Savitri Tripathi vs State of Chhattisgarh 25 Oct 2021 (13902 downloads )

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The HC observed that ” Object of Vishaka guidelines defeated if complainant is coerced to withdraw complaint: Bombay High Court in plea for quashing of FIR alleging harassment by male colleague, the Court noted that the complainant may have been compelled to file the affidavit. The plea was dismissed by the Court as the offences were spelt out.”

Download the Judgement copy here :  Aurangabad HC - Withdrawing criminal complaint plea not permitted (1298 downloads )

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The ICC concluded that the allegations cannot be termed as sexual harassment at workplace and complaint is rejected.  Reproducing the recommendations of the ICC:

” “After detailed deliberations, the committee observed that both the complainant Ms. Bibha Pandey as well as the respondent Shri Ashwini Kumar Vats have entered into a relationship with each other on personal basis, with mutual consent. The allegations of sexual, mental and emotional harassment is not substantiated as the actions on the part of the Respondent and the allegations cannot be termed as sexual harassment at workplace as defined under Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act 2013. Therefore, the present complaint is rejected being non maintainable as per the provisions of the Act of 2013.

The Committee observes from the records available that the Complainant as well as the Respondent, have acted in a manner which is unbecoming of an Officer employee of the Bank as they have indulged in inappropriate acts, not maintaining good conduct and discipline expected of them. The Respondent, being at a very senior position, failed to maintain the dignity and decorum of his position. No case under Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act 2013 is made out. Both the Complainant as well as the Respondent have behaved and acted in a manner which is not befitting to the post held by them. On the contrary, it is detrimental to the organization and has vitiated the atmosphere of the Bank. The competent authority may take suitable action against them as deemed fit.”

The High Court stated that:

“`Moral Policing’ is not the job of the Management or of the ICC. Any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees. It is only if a complaint is made of sexual harassment under the Act that the Management can constitute the ICC to enquire into the same. The ICC cannot make comments on the personal conduct of the parties and the ICC’s jurisdiction would be restricted to the allegations of sexual harassment and whether a complaint is made out or not, to that effect. Under these circumstances, this Court has no hesitation in holding that the last paragraph of the
recommendation of the ICC, which comments on the conduct of the parties and recommends to the competent authority to take action against the Petitioner and Respondent No. 3, for their inappropriate disciplinary conduct, is not tenable and is liable to be set aside.”

Summing up, a personal relationship between two consenting adults which does not adversely affect the working and discipline of the organisation cannot be acted upon unless it is a compalint of sexual harassment at work.

Download the Judgement Copy here: Woman pilot moves Jammu & Kashmir High Court alleging sexual harassment (2586 downloads )

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“Sexual harassment, as contemplated in the 2013 Act, has to pertain to the dignity of a person, which relates to her/his gender and sexuality;which does not mean that any person of the same-gender cannot hurt the modesty or dignity as envisaged by the 2013 Act”, HC said.

Download the excerpts here : Calcutta HC - Same gender person and raise a complaint not barred under Act (1422 downloads )

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While handling a sexual harassment compliant, what should the Internal Complaints Committee keep in mind while conducting Inquiries?

Download the document here: Essential tips for the ICC while conducting a POSH Inquiry (4318 downloads )

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We have collated a list of important duties of the Internal Complaints Committee. Download the document here Duties of IC (3937 downloads )

Please download the checklist (.pdf) here:
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We have designed a format to assist the aggrieved individual / victim / complainant in making a formal complaint to the Internal Complaints Committee (ICC).

Please download the Complaints form (.pdf) here: Template for registering sexual harassment complaint (9030 downloads )

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Download the inquiry report format (.pdf) here: Inquiry report format (11439 downloads )

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