The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) is one of India’s most progressive workplace legislations. It was designed not only to prohibit sexual harassment but also to create a culture of safety, respect, and accountability within organisations. Interestingly, this law recognised virtual spaces as workplaces long before the pandemic normalised remote work — reflecting a forward-thinking understanding of how work and power dynamics evolve over time.
Among its many unique features, the PoSH Act mandates every organisation with ten or more employees to constitute an Internal Committee (IC) to address and redress complaints of sexual harassment. The law also grants this committee quasi-judicial powers, equivalent to those of a civil court, to ensure fairness and due process.
However, one of the most significant aspects of the PoSH Act, and one that sets it apart from criminal law — is how it approaches evidence.
The Role of Evidence under PoSH
In most legal proceedings, the Indian Evidence Act, 1872 (IEA) governs what qualifies as admissible evidence. But under the PoSH Act, the IEA does not apply. This means that an aggrieved person does not need to present physical or documentary evidence in order to file a complaint. The law recognises that sexual harassment often occurs in private spaces, in fleeting moments, and in ways that cannot always be documented. Requiring strict evidence in such cases would silence survivors rather than empower them.
So, if traditional evidentiary rules don’t apply, how does the IC conduct a fair and thorough inquiry?
The answer lies in the preponderance of probability, a principle that guides civil inquiries. Instead of demanding proof beyond reasonable doubt (as in criminal trials), the IC must determine how likely it is that the harassment took place based on all available information, context, and testimony.
- Step 1: The Written Complaint
Every inquiry begins with a written complaint from the aggrieved employee. This is the foundation on which the IC begins its work. A well-written complaint helps establish key facts such as:
- The date, time, and location of the incident(s).
- The identity and designation of the complainant and respondent.
- The names and contact information of any witnesses, if available.
- A narrative description of what happened, in the complainant’s own words, without legal jargon.
Even in the absence of supporting materials, this written complaint is considered valid and sufficient to initiate an inquiry. However, if the complainant does possess any form of evidence, it can strengthen the process and enable the IC to corroborate details.
- Step 2: Supporting Materials
The complainant can attach any materials that may help the IC understand the context or sequence of events. These can include:
- Screenshots or records of messages (WhatsApp, text, email, Slack, Instagram, Facebook, LinkedIn, etc.).
- Call logs or phone records showing communication patterns.
- Restaurant, hotel, or transportation receipts (Uber, Ola, Rapido, etc.) that establish presence at a particular place or time.
- Names of colleagues or friends the complainant spoke to immediately after the incident.
- CCTV footage or details of people who might have recorded a video or taken a photo during the incident.
All of these can be submitted to the IC. If the complainant cannot procure certain pieces of evidence, the IC is empowered to seek or summon them independently. For example, the IC may request CCTV footage from a hotel or office, or ask the HR department to share travel logs.
This flexibility ensures that the complainant’s inability to gather evidence does not hinder justice.
- Step 3: Conducting the Inquiry
Once the complaint is received, the IC examines it through interviews, written statements, and evidence verification. Each party, the complainant and respondent, is given an equal opportunity to present their side, in keeping with the principles of natural justice.
The IC looks for consistency, credibility, and context rather than rigid proof. For instance, if a complainant’s account aligns with circumstantial details, such as work schedules, travel logs, or communication records, the IC may find it sufficient to establish the probability of misconduct.
Importantly, the IC also examines the impact of behaviour on the complainant, not just the intention of the respondent. This is crucial because harassment is often about how behaviour is received, not how it was meant.
- Step 4: Establishing Preponderance of Probability
In PoSH inquiries, the IC does not need to “prove” an incident the way a court does. Instead, it weighs all available evidence and asks: Based on what we know, is it more likely than not that the incident occurred?
This approach, known as preponderance of probability, empowers the IC to make nuanced, fair, and context-aware decisions. It reflects a belief that credibility and lived experience can be as powerful as documentation.
Building Trust through Fair Inquiry
By exempting PoSH inquiries from the Indian Evidence Act, the law acknowledges that justice in workplace harassment cases requires flexibility, empathy, and awareness of power dynamics. It entrusts organisations with the responsibility to create safe workplaces and empowers ICs to investigate with sensitivity, fairness, and courage.
Ultimately, the PoSH Act places the burden not on survivors to “prove” their experience, but on institutions to listen, believe, and act responsibly. This shift, from doubt to dignity, is what makes the law one of India’s most transformative workplace legislations.
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