As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, or PoSH Act, the process of inquiry and proof is markedly different from that in criminal law. Unlike criminal trials that demand evidence “beyond a reasonable doubt,” workplace sexual harassment cases are judged on the preponderance of probabilities, meaning that if the complainant’s version appears more likely than not, it can be accepted.
The Internal Committee (IC), in this sense, functions as a quasi-judicial body. It is empowered to assess facts, evaluate testimonies, and make reasoned recommendations based on fairness, natural justice, and the likelihood of events. This shift in standard recognises the sensitive nature of sexual harassment, an offence that often occurs without witnesses, digital trails, or tangible proof.
How Jurisprudence Has Evolved
Over the last three decades, India’s legal landscape has seen a steady shift in how it views the complainant’s testimony. Earlier, the absence of evidence or witness corroboration often led to the dismissal of claims. Today, the law and society are more open to listening to and believing the survivor’s account.
This evolution was accelerated by the global #MeToo movement, which forced institutions to confront the lived realities of workplace harassment, silence, disbelief, and fear of retaliation. It reframed the narrative from “Can she prove it?” to “Can we ensure she’s heard?”
Importantly, this does not mean the IC or courts ignore due process. Proof remains essential. But the focus has shifted from physical evidence to credibility, consistency, and context, the very factors that determine truth in most PoSH cases.
The Supreme Court’s Landmark Ruling
The precedent for treating a complainant’s testimony with respect and fairness was set in State of Maharashtra v. Madhukar Narayan Mardikar (1991). In this case, the Bombay High Court had dismissed a woman’s statement on the grounds that she was “unchaste.” The Supreme Court, however, overturned that ruling, stating:
“Merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.”
The Court made it clear that a woman’s credibility is not determined by her character but by the coherence of her statement. This judgment remains central to how both courts and ICs approach sexual harassment inquiries today.
The Role of Testimony in PoSH Inquiries
Sexual harassment rarely takes place in public view. Often, there are no witnesses or tangible proof, only the complainant’s account of what transpired. That is why the law gives significant weight to her testimony if it is “of sterling quality”, meaning clear, consistent, and believable in its flow and detail.
If the IC finds gaps or contradictions, it may summon witnesses, documentary evidence, or communication records to cross-verify claims. However, if the complainant’s version holds together and the respondent’s defence fails to counter it convincingly, the complainant’s account stands as proof.
In cases where the respondent seeks to discredit the complainant’s statement, the burden shifts, they must substantiate their denial with credible reasoning or evidence.
Who Shoulders the Burden of Proof?
In PoSH proceedings, the burden of proof is shared between both parties, but with different expectations. The complainant must establish that her account is credible and probable, while the respondent must demonstrate why it should not be believed. The IC’s job is to ensure both sides are heard fairly and without prejudice.
As the book Staying in the Game: The Playbook for Beating Workplace Sexual Harassment notes:
“Many women don’t report sexual harassment for fear of not being believed.”
Bridging this gap requires not just legal frameworks but cultural shifts within organisations.
How Employers Can Strengthen the Process
Many employers are now training IC members to conduct trauma-informed inquiries, ensuring that questions are not moralistic, tone-deaf, or dismissive. They are also helping committees understand the difference between cross-examination and intimidation, between neutrality and indifference.
When IC members approach each case with empathy, objectivity, and curiosity, rather than suspicion, they help the process serve its true purpose: justice that is both fair and humane.
In the end, the PoSH Act’s principle of preponderance of probabilities is not about lowering the bar for proof. It’s about raising the standard for understanding.
Reach out to hello@serein.inc for our legal expertise in PoSH
FAQs
What is the burden of proof under the PoSH Act?
Under the PoSH Act, the burden of proof in an inquiry is not like in criminal cases where proof must be “beyond reasonable doubt.” Instead, PoSH inquiries rely on the preponderance of probabilities. This means that the Internal Committee (IC) assesses if it is more likely than not that the harassment occurred. This standard recognises the nature of workplace harassment and focuses on the credibility, consistency, and context of testimony rather than requiring strict evidence.
Who has the burden of proof in harassment cases?
In PoSH proceedings, both parties share aspects of the burden of proof. The complainant must establish that her account is credible and probable, while the respondent must show why that account should not be accepted. The IC weighs both sides fairly under the standard of preponderance of probabilities.
Does PoSH require evidence?
While evidence helps in a PoSH inquiry, strict physical or documentary proof is not required to file a complaint or for the inquiry to proceed. The Act is exempt from the Indian Evidence Act, meaning a complaint can be initiated and investigated even when there are no traditional forms of evidence — the IC can rely on testimony, context, and plausibility.
Who holds the burden of proof in a civil trial?
A PoSH inquiry functions similarly to a civil proceeding, not a criminal one. In civil matters, like PoSH inquiries, the burden is shared by both parties.
Can a girl file a complaint for harassment without proof?
Yes. A complainant can file a harassment complaint even without documentary proof or witnesses. The PoSH Act recognises that many incidents occur in private and may lack tangible proof. The IC assesses all available information and determines whether the complaint is credible based on the preponderance of probabilities.
What evidence do I need to report harassment?
You do not need formal evidence to report harassment. However, any supporting information such as dates, times, descriptions of incidents, communication records (messages/emails), witness names, or contextual details can strengthen the complaint. The IC can also request additional evidence during the inquiry.
What are the three types of harassment?
While the PoSH Act primarily defines sexual harassment broadly, legal and workplace guidelines often categorise behaviors into three common types for practical understanding:
- Physical Harassment – Unwanted physical contact, touching, groping, or sexual advances.
- Verbal Harassment – Sexual comments, jokes, requests, or propositions.
- Non-verbal/Visual Harassment – Gestures, display of suggestive material, staring or sending inappropriate messages.
These categories help identify conduct that creates a hostile or intimidating work environment.