In Indian workplaces, on an average 7 to 10% victims undergo harassment and less than 1% report it. There is a huge stigma, fear attached with reporting incidents of sexual harassment. Another predominant concern that complainants go though is the lack of evidence. Despite having a legislation & an Internal Committee to help, yet all in vain if victims don’t report harassment.
In Sexual harassment cases, it is often very difficult for the victim to collect evidences as the assaulter often preys in seclusion. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was drafted keeping such factors in mind. Thus the evidentiary standards are relaxed, when a person approaches the Internal Committee (IC). The goal of the IC would be to resolve sexual harassment allegations and support the victims in maintaining their dignity at work.
THE REASON WHY THE INDIAN EVIDENCE ACT IS INAPPLICABLE
If an employee is harassed by their superior or colleague, they need not fear that they can’t complain because of lack of witness or Evidence. The POSH Act is exempted from the rigidity of the Indian Evidence Act, 1872. Complainant can register their complaint to the IC and their testimony is enough to initiate the case proceedings. In the case of State of Haryana and Anr. Vs. Rattan Singh,1977. The Apex court held that the stringent and complex rules of evidence under the Indian Evidence Act (IEA) may not apply in domestic inquiries. If hearsay has a plausible relationship and is credible, there is no allergy to it.
There is no set parameter for what is evidence, it must be noted that the POSH Act is constructed on the principles of natural justice. This was also observed in the Landmark Case of Medha Kotowal Lele v. UOI,2012. The Supreme Court of India observed, “All that is required is that the inquiry must be conducted in a fair, transparent, and appropriate manner in accordance with the principles of natural justice, after giving the delinquent full opportunity to defend his case”.
WHAT CONSTITUTES AS AN EVIDENCE
So, with the non-applicability of the IEA, there is hope that the decision and justice would not be delayed. But the responsibility lies on the IC that they conduct a fair trial.
Moreover, apart from the victim’s testimony there should be an extensive enquiry. IC should make sure that the decision is unbiased and a fair trial was conducted before arriving upon the recommendations.
Along with the complainant’s testimony, the IC could enquire by
– Examining the witnesses
– Electronic evidences such as emails, chats, texts or interactions through social media
– Physical evidences such as CCTV recordings or photographs.
– Call records
– Past occurrences etc
The IC should leave no stone unturned. IC should ensure, as per the principle of preponderance of probabilities, there should be more than fifty% chance of occurrence.
POSH Act is free from the rigours of the Indian Evidence Act. Which makes it easy for the aggrieved employee to register their complaint without prejudice. This liberty is safeguarded only if the IC remains on its toes and bounds to be impartial.
ABOUT THE AUTHOR
Hemansh Tandon is an advocate based in Delhi. He is an avid reader and has a keen interest in writing prose and verses.