TW: Sexual Assault
Written by: Suruchi Kumar
At Ungender, during our weekend ‘Learn’ sessions, we often discuss judgments and what companies did wrong which took them to court. Our motto has always been “comply, so you do not become an example in our session.” One such case study is luckily a piece of fiction but not further from reality.
Bombay Begums, one of Netflix’s latest releases got a lot wrong in its portrayal of sexual harassment investigation proceedings.
This month, Netflix brought us a web drama series about four ‘begums’ whose lives were interconnected through their workplace – The Royal Bank of Bombay (henceforth, Bank). To identify them and their roles for this case study, we will be assigning them aliases as per their position in the series.
The characters of this case study are: (1) the CEO of the Bank: trying to prove her worth in every decision to a board full of men; (2) the Presiding Officer: second senior-most woman employee of the Bank and recently promoted Deputy Director of Private Equity and Venture Capital division; (3) the Associate: trying to learn from and work with the top employees of the Bank; and (4) the Witness: a dancer by profession but hustling to start a business of her own and is the first beneficiary of the entrepreneurship scheme for women launched by the Bank.
Life at the Bank is going on as usual; politics of promotions, firing of employees, challenges to decision making, etc. but as the story progresses, we see that the Associate is sexually assaulted by a top employee of the Bank (let’s call him the Harasser) where he forces himself upon her in his car after an office party.
The incident is seen by the Witness from her vehicle who confronts the CEO to speak to the Associate. When asked, the Associate at first, denies any such assault. She claims that the incident was consensual. However, as time goes by, she’s unable to put the incident behind her and gathers the courage to file the complaint.
We watched the series and couldn’t stop saying, ‘oh no, that’s not right!’ every other minute, especially in the episodes where the sexual harassment investigation happens. The list was long but we’ve identified five points for the benefit of employers, HR teams, and IC members on what NOT to do while investigating a sexual harassment complaint under the POSH Law.
From the beginning to the end of the sexual harassment proceedings, the CEO was present and involved. We see her at the time the complaint is being filed. She’s spotted again at the time the Harasser (in this case, the respondent) asks her to “take care of it” as he helped her through a difficult time in the company in the past. We also see another board member asking her “to take care of it” to both of whom she said she will take care of the situation/case.
Sorry, Netflix! She shouldn’t have been present in that room, right from the beginning!
The CEO is the ‘employer’ as per the definition of the PoSH Law. All decisions are implemented in the employer’s name. The fact that the employer has employed the alleged harasser, it is likely that there will always be some connection. In fact, the seniority of the alleged harasser is directly proportional to the connection with the employer. To prevent any such influence or bias, the employer is kept away from such proceedings.
The investigation is sacrosanct and as per law, it is to be conducted only by the presiding officer and other quorum/Internal Committee members. The employer’s job is to implement the final recommendations of the Internal Committee. They’re not supposed to be present in the investigation.
When we’re asked to choose between two persons, we will subconsciously side with and believe the one we know well as opposed to the one we don’t, even if they are in the wrong. However, while being a presiding officer of a sexual harassment complaint this inclination towards the person they know rather than being neutral is the beginning of an unfair proceeding.
The PoSH Law mandates the investigation to be conducted as per principles of natural justice, which encompasses many aspects including a fair and unbiased proceeding.
The High Court of Delhi in U.S. Verma and Ors. v. National Commission for Women and Ors. reported in 163 (2009) DLT 557 had held that “One of the cardinal rules of natural justice is that a person hearing a case or cause should not only be impartial but should have no personal knowledge or interest.”
The Presiding Officer knew the Harasser well. She was his mentee and junior before she got promoted. She was close to him and his family looked up to him for advice and comfort. There is personal interest involved. She will believe him and want him to be acquitted of such charges. This bias and conflict of interest are apparent from her questions to the Associate and the threats made to her to withdraw or suffer the consequences of a falsely filed complaint.
It is essential that to ensure a fair and impartial proceeding, every member who has chosen to be part of the quorum/Internal Committee must declare that they have no personal knowledge or interest in the matter. Any member who cannot declare their fairness must be removed from the quorum.
The news about the Associate filing a complaint spread like a gender reveal fire in California. Everyone in the office knew! Board members knew her colleague cum friend cum flatmate knew! There was a serious breach of confidentiality.
Confidentiality is the first cardinal rule of the proceedings and a punishable offense under PoSH Law. As soon as there is a breach of confidentiality, the IC is required to investigate and report to the employer. This is essential to prevent retaliation against parties and to also prevent the office environment from becoming hostile.
While the PoSH Law does not state in so many words, it is best practice to make every member of IC, parties to a complaint, and witnesses sign a ‘non-disclosure agreement’ at the beginning of the proceedings. This will ensure that the persons involved in the complaint are bound by contract to maintain confidentiality.
In the series, the Witness, out of personal reasons, withdraws her testimony. On basis of such withdrawal, the Associate was intimidated by the Presiding Officer that she had no case and should withdraw the complaint as the action could be taken against her for filing a false complaint. This action of the Presiding Officer goes against the principles of such hearings.
The case of a complainant does not rest on the fact that they have been able to bring a witness forward to corroborate. More often than not, such incidents happen behind closed doors or in secluded places. In such cases, the complainant’s testimony is self-sufficient and should be judged by the standard of proof applicable to such proceedings which is ‘preponderance of probabilities.’
The High Court of Delhi recently in its judgment in the case of X v. Union of India and Ors. (LPA 527/2019 decided on 17.12.2020) held that “…It cannot be overlooked that the Internal Complaints Committee is intended as a platform to provide an environment of confidence to the complainant. It is not to doubt the veracity of the complaint or view the complainant with suspicion. It is to believe her and not compel her to name witnesses to seek corroboration, as has happened in the instant case.”
“…The absence of eyewitnesses to the incident cannot detract from the credibility of the complainant as her statement is to be considered independently to determine whether it has a ring of truth or not.”
Last but not the least, the Associate at various points was gaslit, threatened, and intimidated. These actions were retaliatory and that of disbelief on the part of the Presiding Officer and other members who interacted with the Associate.
The pattern of questioning when the Associate is narrating the incident –“Did you try to stop him?”, “Did you tell anyone?”, “Why were you with him in the car?” were loaded with skepticism and victim shaming. She was asked to reconsider going forward with the complaint at various stages.
Initially, the CEO gaslit the complaint to believe that she was overreacting. Lastly, she was threatened by the Presiding Officer that action will be taken against her for filing a false complaint when the Witness withdrew her testimony.
All this is proof of a hostile work environment, one that the PoSH Law endeavors to eradicate.
There haven’t been many conversations on sexual harassment at work in recent pop culture. It’s great that Bombay Begums addressed the issue and we understand that things need to be a certain way to serve the plot in a drama series.
That said, the POSH Law, its implementation, and compliance are essential in ensuring that workplaces are safer for women. Ungender has been tirelessly working to get employers to comply with the POSH law in both letter and spirit so that when someone like the Associate files a complaint in a ‘real’ workplace, she’s able to do so without any fear and has a chance at a just investigation. To that end, Bombay Begums not only misses its mark but also does more damage than good.
About the author: Suruchi Kumar is a Legal Advisor at Ungender, Advocate at the Supreme Court, and a Labour Laws expert.
Image credit: Trailer – Bombay Begums/YouTube