After seven long years, the redacted version of the report was released, which shines a glaring light on the disturbing gender exploitation that exists in the Malayalam film industry. The report pointed out several crimes against women, including minors, and the existence of a ‘mafia’ that controls the whole industry. Here are some of the major findings:

• Sexual abuse and casting couch: The committee interviewed women from the industry, who said they had to face unwanted physical advances and rape threats even before they commenced work. Women also stated that they were coerced into exchanging sexual favours for job opportunities, and had to face denial of employment or career advancement if they refused.
• Lack of safety on the film set: Many men, influential in the industry, were known to knock on the doors of the rooms of women artists. To circumvent this, women resorted to bringing their parents or close relatives to the set and their accommodations.
• Inadequate facilities on set: Women artists said they were put through a lot of hardship given the inadequate facilities, such as changing rooms and toilets, for them on set, especially in outdoor locations.
• Poor working conditions: Junior artists, who were interviewed by the Hema committee, claimed they were “treated worse than slaves”, having to work for nearly 19 hours at poor remuneration. They also said intermediaries misappropriated a good part of their payments.
• Cyberthreats and cyberbullying: Artists, who refused to comply with the demands of those powerful in the industry, had to face the threat of online harassment. Cyberbullying, public threats, and defamation posed significant challenges for them.

Although the report is specific to the Malayalam film industry, the sad truth is that a similar culture exists across various industries, and the findings of the Hema Committee resonate with the challenges women face in other industries as well.

Recently, renowned actor Rahul Bose sought to know why no other industry has constituted committees to look into the increase in cases of sexual harassment. He called for the need for greater awareness to empower women to speak up and fight harassment.

A few days ago, a committee was formed in West Bengal to investigate sexual harassment of women in the Bengali film industry. It has been reported that the Tamil and Telugu film industries are also likely to establish committees with the aim to protect women in the respective industries.

Meanwhile, in the Kannada film industry, though actor Sanjjanaa Galrani mooted the establishment of the Sandalwood Woman Artist Association, the Karnataka Film Chamber of Commerce has opposed the move to set up a panel akin to the Hema Committee. Earlier this month, at least 150 persons, including actors, writers, and directors sent a formal letter to Chief Minister Siddaramaiah to form a committee to look into the sexual abuse allegations in the Kannada film industry, also known as Sandalwood.

The #MeToo movement that gathered steam in 2017 was a watershed moment, given that it helped highlight gender discrimination and harassment across various sectors globally. It empowered countless individuals to share their experiences and brought significant attention to the need for systemic change in workplaces.

The Sexual Harassment of Women at Workplaces (Prevention, Prohibition and Redressal) Act, 2013, more commonly known as the PoSH Act, came into effect in December 2013. However, it was only in 2018 that the Securities and Exchange Board of India mandated all listed companies to disclose the data on sexual harassment complaints in their annual reports. As per data available, in 2013-14, when PoSH was implemented, 161 cases were reported. A year later, this number surged to 465. The numbers have continued to rise till 2020-21. Following the outbreak of the COVID-19 pandemic and subsequent work-from-home option, the number of cases dropped to 586 cases across 300 companies, down from 961 cases the previous year. In 2021-22, the number increased again to 767 cases, followed by a spike the following year reaching 1,160 cases, a whopping 51.2% jump.

The release of the Hema Committee report serves as a wake-up call not just for the Malayalam film industry, but for all sectors where gender exploitation and harassment persist. With 80% of women in India employed in the unorganised sector—often facing informal work, low wages, and job insecurity—the report aims to inspire change and improve conditions for women everywhere.

The Hema Committee report has shed much-needed light on the crucial gaps and challenges in the implementation of the PoSH Act. Here are some of the top takeaways from the report that all industries should focus on to ensure women’s safety:

• Lack of awareness: One of the biggest challenges identified is the widespread lack of awareness of the PoSH Act among employees, especially in the small and medium-sized enterprises (SMEs) sector. This can be addressed by creating awareness among the entire workforce.
• Inadequate implementation: Several organisations have either not formed Internal Committees (ICs) or have ICs that do not function effectively, which undermines the Act’s impact. Organisations can comply with the Act by forming these committees and ensuring that they function properly in letter and spirit.
• Training gaps: There is an urgent need for regular and structured training programmes to educate both employees and management on the PoSH guidelines and responsibilities. Regular training programmes and awareness campaigns should be part of an organisation’s annual calendar.
• Accountability issues: The report highlights a lack of accountability in enforcing the PoSH Act, with many complaints either being mishandled or worse, ignored. This challenge can be addressed by ensuring transparency and accountability in the functioning of the ICs.
• Protection for informal sector workers: Women in the informal sector often face the brunt of workplace harassment; yet, there are very few mechanisms to address their concerns. The workers’ associations or unions should put in place mechanisms to address the problems of these women.

While there have been strides in implementing the PoSH Act, much more needs to be done to ensure that workplaces are truly safe and inclusive for women. From increasing awareness and training to enhancing accountability and protections for women in informal sectors, the road ahead requires collaborative efforts from industries, regulators, and society at large.

It’s time to turn awareness into action and ensure that every woman feels empowered and protected in her place of work. To know more about what to do to make your workplace safe and inclusive for women, get in touch with us.

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The Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 recognizes that sexual harassment often happens in isolation or in circumstances where evidence is difficult to come by.  

In several of these incidents, securing evidence like, messages, recordings, video footage, screenshots, etc… becomes a challenge. This leaves the committee with the word of the victim against the word of the perpetrator. 

The Evidence Act of 1872 states the importance of proof to establish the existence of a crime. Criminal cases require evidence ‘beyond reasonable doubt’ to prove facts and hold someone guilty. However, civil cases are proved based on the principle ‘Preponderance of Possibilities/ Probabilities.’ Since POSH cases are civil in nature and its IC has the power of the civil court, the Evidence Act of 1872 criterion does not apply. 

In POSH cases for an IC to determine sexual harassment, it has to form its belief based on either of the following: 

Following the elements of this principle, that needs to be satisfied:  

• There is more likely for the event(s) to happen than not to happen. (Probability of one event being more true than the other, i.e. more than 50 %)
• Should satisfy: prudent man test. (IC fact finding and coming to conclusion from the perspective of a reasonable man)
• Principles of Natural Justice has to be followed

Steps for applying this principle:

• Look into facts 
• Repair the chances
• Weigh the chances that tend to intermingle
• First: Weeding out the impossible 
• Second: Weeding out the improbable
• Final decision

Case: Medha Kotwal Lele & Ors. V. Union of India and Others, 2012

“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.”

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Facts of the Case
In this case, a complaint of sexual harassment was filed by a female employee against the respondent. The complaint was initially submitted to the Inspector General (IG) and subsequently forwarded to several authorities, including the DG SSB, New Delhi, Dy. IG, SSB, SHQ, Tezpur, and the Chairperson of the National Women Rights Commission, New Delhi. The first complaint was filed on August 30, 201. On September 18 2012, the complainant also submitted a second complaint containing additional allegations against the respondent.

Two initial inquiries, a fact-finding inquiry and a Frontier Complaints Committee inquiry, failed to substantiate the allegations. Subsequently, the Ministry of Home Affairs constituted the Central Complaints Committee to investigate the matter. The Central Complaints Committee had to be constituted in view of Clause 9 of the 2006 Standing Order. Clause 9 of the 2006 Standing Order envisages two levels of complaints committee; (i) a Frontier Complaints Committee for the “combatised and in-field officers” (ii) a Central Complaints Committee for the “non-combatised officers”. Since at the time of lodging of the complaint, the respondent was serving as a non-combatised officer, the Central Complaints Committee was formed. While the Central Complaints Committee’s Inquiry was still pending, the Ministry of Home Affairs annulled the Frontier Level Complaints Committee’s Inquiry Report on the ground that the Chairperson of the said Frontier Level Complaints Committee was of an equivalent rank as that of the respondent.

The Central Complaints Committee found the respondent guilty of sexual harassment.
The respondent argued that the allegations were false and claimed that they were made because he had rejected the transfer application of the complainant. As a result, he approached the Central Administrative Tribunal (CAT) seeking the cancellation of the Central Complaints Committee’s inquiry. However, CAT refrained from expressing an opinion on the matter, as the disciplinary proceedings were still pending.

The case then moved to the High Court, which ruled that the Central Complaints Committee had overstepped its jurisdiction by considering the second complaint and had taken on a prosecutorial role during the inquiry. The High Court stated that the jurisdiction of the Central Complaints Committee was limited to the first complaint filed by the complainant and it should not have considered the allegations made in the second complaint. The High Court also found that the committee’s findings were based on surmises and conjectures, characterizing the case as “No Evidence.” Against this order, the Supreme Court was approached.

Findings By The Supreme Court

1. Courts Should Not Get Swayed By Discrepancies and Hyper Technicalities
In its order, Supreme Court ultimately held that the High Court’s judgment was incorrect, and the Central Complaints Committee had not exceeded its jurisdiction by considering the second complaint. The High Court’s decision was set aside, and the order of punishment imposed by the disciplinary authority was upheld.

At the outset, the Supreme Court underlined the gravity of addressing workplace sexual harassment, emphasizing that offenders should not evade legal consequences. The court noted that failure to hold harassers accountable could be distressing for victims, particularly when the wrongdoer faced minimal penalties or remains unpunished. However, the court also recognized the challenge in verifying such allegations, stating that such allegations were easy to make but difficult to disprove. Thus, the court stated that when someone claimed false implication for ulterior motives, the court had a duty to thoroughly examine the evidence and determine the credibility of the accusations.
The Court underlined the importance of not being swayed by insignificant discrepancies or hyper-technicalities when reviewing such cases. It stressed that allegations of this nature should be considered within the broader context of the entire case. The Court also cautioned against showing undue sympathy or leniency towards the individual accused of misconduct.

Regarding the consideration of additional or second complaints, the Court highlighted that this issue is a separate matter to be evaluated based on whether it was filed promptly and not mischievously at a later stage to cause prejudice to the accused. In the specific case at hand, the Central Complaints Committee was established on August 6, 2012, and its first hearing took place on September 25, 2012. The second complaint, filed by the complainant, was submitted on September 18, 2012. This timeline indicated that the second complaint had been promptly submitted shortly after the Central Complaints Committee’s formation and before its first hearing.

The Court emphasized that the Central Complaints Committee’s authority was derived from the 2006 Standing Order, not solely from the complaint itself. Furthermore, even if it were assumed that the committee’s existence was contingent upon the complaint, Clause 10(i) of the 2006 Standing Order envisaged the possibility of filing a complaint with the committee. This indicated that a complaint could be submitted to the committee after it had been constituted. The court further held that in the context of departmental inquiries, strict and technical rules of evidence and procedure did not apply in the same manner as they would in a regular court of law, where witnesses are examined under oath. The Court emphasized that there should be no aversion to considering “hearsay evidence” as long as it had a reasonable nexus and credibility in the case at hand.

2. Role of Courts in Evaluating Validity of Disciplinary Proceedings Limited
In evaluating the validity of the disciplinary proceedings, the Supreme Court emphasized that the primary fact-finding authorities in such cases are the inquiry authority and the disciplinary authority. Therefore, the role of the court, in its power of judicial review, should not be to act as an appellate body or reevaluate the evidence or substitute its own findings for those of the fact-finding authorities. Instead, the scope of judicial review is limited to assessing the propriety of the decision-making process and the fairness of the inquiry procedure.

The Court also highlighted the limited jurisdiction of the High Court in such matters. It stated that the High Court should not function as an appellate authority or replace its own findings with those of the disciplinary authority. Interference by the High Court is only warranted under specific circumstances, added the Supreme Court– “It is no doubt true that if there is “no evidence” or the decision is “so unreasonable that no reasonable man could have ever come to it”, or the decision is “so outrageous” in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it “or that it is so absurd that one is satisfied that the decision-maker must have taken leave of his senses”, it calls for interference by a competent court of law.”

3. Impact of Procedural Violation to Be Weighed Against Overall Fairness of Inquiry
The Supreme Court then turned its attention to the question of whether the respondent was asked by the Central Complaints Committee if he pleaded guilty to the allegations presented in the second complaint. The High Court had noted that while the respondent was asked about his plea regarding the allegations in the first complaint, there was no evidence to suggest that a similar exercise had been undertaken concerning the second complaint.

The Supreme Court clarified that the obligation of the Authority to ask the accused whether they pleaded guilty or had any defense was only applicable if the accused had not admitted any of the charges in their written statement of defense or had not submitted any written statement of defense. In the case under consideration, the respondent had indeed filed a written statement of defense addressing all the allegations outlined in the ten points examined by the Committee. Furthermore, the respondent had cross-examined all the witnesses regarding these allegations.

The Court opined that in case of a mere violation of a procedural rule, no prejudice could be claimed to have been caused to the respondent even if it was assumed that he was not asked to plead guilty to the second complaint. The Supreme Court held that the High Court had overlooked the principles established by the Court and had unreasonably set aside the disciplinary authority’s punishment order. This was done without applying the “test of prejudice,” which should have been employed to assess the impact of the procedural violation on the respondent’s rights and the overall fairness of the inquiry.

Download the Case law here –  Metis-POSH-Case law-POSH UNION OF INDIA AND OTHERS vs Dilip Paul 061123 (6224 downloads )

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Read more here (pdf): TAMIL NADU GOVERNMENT GAZETTE (13168 downloads )

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The various Acts have defined the definition of “sexual harassment at work place” but finally the Hon’ble Supreme Court has decided the principles of law in respect of prevention of ‘Sexual Harassment at workplace“ in matter of Vishaka v. State of Rajasthan 1997 (6) SCC 241 based on an Article 19 (1) g of the Indian Constitution which affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business.

Download the article here: INDIAN’S LAWS ON PREVENTION OF SEXUAL HARASSMENT AT WORK PLACE (13064 downloads )

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Download the copy here Calcutta HC- Soumen Sarkar vs The State Of West Bengal (13221 downloads )

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