“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 (Prevention, Prohibition and Redressal) Act, 2013 was passed. This law is exempt from the Indian Evidence Act, 1872 (IEA), a deliberate and progressive step that makes it easier for survivors to come forward without fear of being dismissed for lack of “proof.”
How does this exemption help an aggrieved employee when filing a complaint? Let’s look at three situations to understand this better.
Situation 1: Absence of evidence
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. Under the Indian Evidence Act, 1872, the person seeking a legal judgment bears 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 she 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 or witnesses are not a prerequisite for lodging a complaint. This approach ensures that survivors are heard without being penalised for the private nature of sexual harassment.
Situation 2: Witness testimony as evidence
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 uncomfortable with this and tells her that she can file a complaint 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. If Mala files a case against Sherin’s misbehaviour in court, Abhimanyu’s testimony will not be admissible. This is also because the court must arrive at an absolute decision, whether Sherin harassed Mala or not.
PoSH Proceeding: In a PoSH inquiry, the IC can take cognisance of Abhimanyu’s testimony as valid evidence to support the likelihood that Sherin did sexually harass Mala. PoSH inquiries are guided by the principle of “preponderance of probability”; the IC must establish how likely it is that the harassment occurred, not prove it beyond a doubt. Abhimanyu’s testimony is also relevant because it helps the IC understand the impact of Sherin’s behaviour on Mala.
Assessing the emotional and psychological impact on the complainant is a core principle of the PoSH Act.
Situation 3: Burden of evidence
Mala is doubtful about filing a case because she has no material evidence.
Criminal Proceeding: In a criminal proceeding, the burden of discovering and submitting evidence lies with the parties involved.
PoSH Proceeding: In a PoSH inquiry, the IC has the power to seek evidence on its own. Should Mala choose to file a complaint, her IC can direct the pub to share CCTV footage or access communication records as potential evidence. This proactive approach ensures that the complainant’s lack of resources or access does not hinder justice.
The PoSH law was deliberately exempted from the rigours of the Indian Evidence Act, 1872, keeping in mind the private, subtle, and indirect nature of most sexual harassment incidents. This legal design reflects a deep understanding of workplace realities — that harassment often occurs behind closed doors, without witnesses, and without physical evidence.
By trusting the testimony of the survivor and empowering ICs to examine probability, impact, and context, the law has made it possible for thousands of aggrieved employees to seek redress without fear or bias.
In doing so, the PoSH Act has not only strengthened legal access but it has also created a lasting culture of trust, accountability, and psychological safety across workplaces in India.
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