“My colleague has touched me inappropriately but there is no evidence, no witnesses either. I don’t think anyone will believe me. Will the IC take me seriously?”
Bhanwari Devi’s courage when fighting her case and Jyoti Singh’s horrendous rape and murder case in 2012 heralded a watershed moment in Indian law. The result was the enactment of the Vishakha Guidelines, on the basis of which the Sexual Harassment of Women at Workplace Act was passed in 2013. This law is exempt from the Indian Evidence Act, 1872.
How does this exemption help an aggrieved employee when filing a complaint? Let’s look at 2 scenarios to understand this better.
Situation 1
Nakul, a senior employee, has been sexually harassing Rosy when they are working on a field project. He often stands too close to her or brushes against her. Once he even forcefully held her hand for a long period of time. Rosy is distressed but doesn’t know what she can do since nobody else has witnessed the harassment. She has no documented evidence either, and feels nobody will believe her against Nakul’s testimony.
Criminal Proceeding: Should Rosy choose to file a case against Nakul in a court of law, she would be required to prove Nakul’s inappropriate behaviour. This is because according to the Indian Evidence Act, 1872, the person seeking a legal judgement must bear the burden of proof. In the absence of this proof, Rosy’s case may not be upheld in court.
PoSH Proceeding: In a PoSH inquiry, Rosy’s testimony is of sterling quality. Should Rosy reach out to an IC member and describe the events, an inquiry can be initiated on the sole basis of her testimony. Under the PoSH law, documented evidence and/or witnesses is not a prerequisite for lodging a complaint.
Situation 2
Every time their team meets at a local pub, Abhimanyu notices that Sherin follows Mala to the toilet. He senses from Mala’s body language that she is not comfortable with this, and tells her that she can file a complaint against Sherin with their IC. He offers to be a witness, but Mala is confused about her situation.
Criminal Proceeding: In a criminal proceeding, hearsay evidence is not admissible. As per Chapter 5, Section 60 of the IEA, oral evidence (seeing or hearing) must be direct. This means only evidence that a witness has heard or seen themselves is admissible. Should Mala file a case against Sherin’s misbehaviour in court, Abhimanyu’s testimony will not be admissible. This is also because the court must come to an absolute decision on whether Sherin sexually harassed Mala or not.
PoSH Proceeding: In a PoSH inquiry, the IC will take cognizance of Abhimanyu’s testimony as valid evidence to support the likelihood that Sherin did sexually harass Mala. The PoSH law guides ICs to use the principle of “preponderance of possibility”, which means the IC needs to establish how likely it was that the sexual harassment took place. Abhimanyu’s testimony is also admissible because it will enable the IC to examine the impact of Sherin’s behaviour on Mala. In addition to “preponderance of probability”, assessing impact on the complainant is a key guiding principle for ICs.
Situation 2 (continued)
Mala is doubtful about filing a case because she has no material evidence.
Criminal Proceeding: In a criminal proceeding, the involved parties are responsible for discovering and submitting evidence.
PoSH Proceeding: In a PoSH inquiry, the IC can take initiative to discover evidence. Should Mala choose to file a complaint, her IC can direct the pub to share relevant CCTV footage as a possible form of evidence.
The PoSH law has been exempted from the rigours of the Indian Evidence Act, 1872 keeping in mind the private, indirect nature of sexual harassment. This provision has made it possible for thousands of aggrieved employees to seek relief without prejudice, creating a long-term culture of trust and wellbeing at workplaces across India.