As per Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH) Act, the burden of proof in terms of a sexual harassment cases has different principles that are applied in the criminal court and those in the Internal Committee (IC). The internal complaints committee is a quasi-judicial body, the principle on which the cases are adjudicated is the ‘preponderance of probabilities’.
As the jurisprudence has grown in the field of sexual harassment, the law and society are now more open to listening to the Complainant. Of course, the court and IC require proof but there is a positive change when it comes to addressing such cases of sexual harassment where there is a lack of physical evidence.
As the world witnessed the #metoo movement, we began to see change in how cases of sexual harassment where handled. Now, a Complainant’s testimony is considered to be of paramount importance. Pre-existent biases like that of maligning the survivors character through disclosing details of their sexual history are now considered irrelevant.
The Supreme court set this precedent up in , State Of Maharashtra v Madhukar Narayan Mardikar 1991also explicitly stated,“…merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.” The Bombay High Court had dismissed the woman’s testimony because she was “an unchaste woman” but the Supreme Court disagreed with this and set a clear precedent”
Due to the nature of sexual offences often occurring in isolation and often without the presence of any witnesses or existence of any physical evidence. The standard that is adopted while adjudicating such cases where if a woman’s testimony is of a “sterling quality” then it doesn’t need to be corroborated.
In an instance where the IC is not satisfied by the Complainant’s testimony, the IC has the power to summon witnesses and corroborate evidence. If the committee feels there is any scope to discredit the Complainants testimony they can further host an internal inquiry. If the Respondent at this instance discredits the Complainants testimony for example: calling it motivated or due to an unsatisfactory appraisal or a relationship advance gone sour, then the Respondent has to prove these allegations against the Complainant. The consistency of the Complainant’s statement gives the Complainant the “sterling” credibility, which is often proved through inquiry.
It has to be understood the burden of proof lies on plausibility of the survivors testimony and the analysis of the defence by the respondent by following fairness, equal hearing, justice as the attributes. The book Staying in the Game: The Playbook for Beating Workplace Sexual Harassment explains that, “Many women don’t report sexual harassment for fear of not being believed. In our experience at Serein, employers are attempting to address this by training IC members to avoid moral judgement, remain objective and be empathetic.
About the Author and Serein
Faakirah Junaid Rafiquee is a lawyer and content designer .She is an experienced head of operations skilled in research, policy analysis, human rights, mental health, women rights, workshop moderation and document drafting. She is a strong operations professional with a Bachelor of Law focused in women rights and policy analysis. She has facilitated and designed workshops on issues like feminism, prevention of mental health, and childhood sexual abuse. She also has developed courses, modules and programmes on the same issues. Faakirah writes on women’s and mental health issues.
The materials on this web site have been prepared by Serein Inc. for informational purposes only and are not legal advice or a substitute for legal counsel. Reader should not rely or act upon this information without seeking professional counsel.
Serein Inc is an end to end service partner for the implementation of Prevention of Sexual Harassment (POSH) legal compliance. We partner with companies on case redressal and policies to proactively build safer work cultures and sexual harassment (POSH) trainings either in person or virtually. For more details on diversity, inclusion and prevention of sexual harassment (POSH training in India and the US).
