“As an IC, it’s hard to understand how to process evidence when it comes to cases of sexual harassment. What if there is no evidence?”
One of the several progressive approaches taken by Indian law includes how to approach and examine evidence in sexual harassment cases. To this effect, the Prevention of Sexual Harassment of Women (Prevention, Prohibition, Redressal), 2013 is exempt from the Indian Evidence Act, 1872 (IEA).
As an IC, what should you keep in mind when considering evidence in a PoSH case? Let’s explore 3 scenarios.
Situation 1
In her complaint, Rupali notes the time, date and location of where the harassment occurred. However, when asked, she replies that there is no documented evidence.
- Criminal proceeding: If this was a criminal proceeding, Rupali would seek a legal judgement that upholds her right to a safe working environment. Accordingly, under Chapter 7, Section 101 of the Indian Evidence Act, 1872, the burden of proof is on her to prove the sexual harassment occurred.
- PoSH proceeding: Since PoSH inquiry is a civil proceeding, Rupali’s testimony is of sterling quality. An inquiry can be initiated on the sole basis of her testimony. Documented evidence and/or witnesses is not a prerequisite for lodging a complaint (although both do help towards a speedy redressal).
Situation 2
Jameela lodges a complaint of online sexual harassment with her IC. She attaches screenshots of graphic texts sent by her colleague as evidence.
- Criminal proceeding: If this was a criminal proceeding, the court would ask Jameela to procure a certificate testifying to the originality of the texts. Since she submitted a copy of electronic evidence (and not in its original form, i.e., her actual phone), as per Chapter 5, Section 63 of the IEA, it is considered secondary evidence and must be certified. As per Section 65 (B), a certificate is required to prove that evidence submitted is an authentic, untampered copy of the original.
- PoSH proceeding: Since PoSH inquiry is a civil proceeding, the IC will take cognizance of screenshots as valid evidence of Jameela’s complaint. The IC may use these screenshots as grounds to cross-examine the respondent.
Situation 3
Sofia lodges a complaint with her IC against a colleague for sexually harassing her during an office party. She enlists two colleagues as witnesses because they saw her immediately after the sexual harassment took place. The witnesses testify that although they didn’t see or hear Sofia or the respondent during the act, she appeared to be in great distress after exiting the area.
- Criminal proceeding: If this was a criminal proceeding, hearsay evidence will not be 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.
- PoSH Proceeding: Since PoSH inquiry is a civil proceeding, the IC will take cognizance of the witnesses’ testimony as valid evidence to support the likelihood that the sexual harassment did take place.
Exempting PoSH inquiries from the rigours of the IEA highlights that the law entrusts companies with the responsibility of ensuring a safe workplace by (a) empowering ICs to approach evidence keeping in mind the private, indirect nature of sexual harassment, and (b) ensuring every step of the inquiry abides by principles of natural justice. This pragmatic approach allows companies to foster workplace safety efficiently.