The evidence reviewed in an enquiry as per The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013:
Applicability and Scope
The Internal Committee (IC) members are often faced with incidents like,
‘Under the Sexual harassment law, how do we prove a case where an employee was staring at another and making them uncomfortable?’
‘It was a case of physical harassment. The Respondent touched the Complainant under the table during lunch. There were no witnesses.’
‘The manager verbally demanded sexual favours in the closed meeting room. There is not text message or email to prove the sexual harassment.’
The Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 acknowledges that instances of sexual harassment often occur in isolation or in circumstances where evidence is difficult to come by.
In many of these instances, summoning witnesses, securing recordings or video footage, reviewing screenshots become a challenge. This leaves the committee with the word of the victim against the word of the perpetrator.
It is important to note that the Evidence Act is not applicable to the enquiry proceedings under PoSH. The Evidence Act of 1872 codifies the importance of proof in order to establish the existence of a crime. However under the prevention of sexual harassment act, 2013 this criterion isn’t required. Thus a complaint can be registered without any evidence and often a case/complaint is registered on the testimony of the victim.
The criteria to accept a complaint is not proof of the sexual harassment but the prima facia existence of sexual harassment. The law works on the principle of not proving harassment beyond reasonable doubt but the balance of probability.
The responsibility of the committee is to ensure that the principles of natural justice are upheld. According to the Section 7(4) of The Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ‘both the parties, the aggrieved woman and the Respondent, must be given a fair opportunity to present their respective cases, and the Respondent should be allowed to cross-examine the witnesses of the complainant.’
“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.”Medha Kotowal Lele, 2012 Supreme Court Case.
The principles of natural justice are those rules which have been crystalised by the judiciary as being the safeguard of the rights of the individual towards the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority towards hindering those rights. These rules are in place to maintain justice and to prevent injustice from occurring through such judicial/quasi-judicial processes.
The (nemo iudex in causa sua, or “no man a judge in his own cause”), and the right to a fair hearing (audi alteram partem, or “hear the other side”). The right to fair hearing safeguards the rights of both the individual and the Respondent. Guaranteeing a mechanism through which the Respondent will be given an equal opportunity to present his/her defence. It’s only after both the parties have presented themselves an adjudication will take place.
The important component behind this legislation is to recognise that complaints of sexual harassment in the workplace cannot be treated as an empty formality. The existence of a complaint means that a thorough procedure has to be followed as per the act.
The principle behind these provisos is that no person should be hindered from bringing forward a complaint only because they are unable to prove it. This law has been enacted to address the systematic harassment and discrimination of women in the Indian workplace across sectors. The Act aims to create an equitable working environment.
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). For more information on how to conduct a fair, timely and legally sound POSH enquiry process, reach out to hello@serein.in
Photo by Markus Winkler on Unsplash
