What Happens When There Is No Evidence in a PoSH Case?

In different working environments, sexual harassment experiences usually occur in seclusion, away from the outside world. Regrettably, these experiences usually happen without any concrete evidence in the form of recordings, written documents, or witnesses. Therefore, the resolution of such cases usually depends on the opposing testimonies of the parties involved. This often leads to a tough and uncomfortable question: What if there is no evidence in a PoSH case?

Fortunately, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was drafted with this in mind. The PoSH law mentions that not every sexual harassment requires evidence. It allows the Internal Complaints Committees (ICC/ICs) to conduct proper inquiries to assess credibility, consistency, and context in the absence of evidence.

In this blog, we will discuss how PoSH inquiries are carried out when complaints are based more on complainants’ testimony than physical evidence and how justice can be delivered in such delicate, complex cases.

Admissible PoSH case evidence is not only limited to physical or digital evidence. Different types of evidence are recognised and could be used to support or challenge the complaint. The various types of evidence are:

• Direct Evidence: This can be documents, audio/visual recordings, messages, or photos that prove the occurrence of sexual harassment.
• Circumstantial Evidence: Sexual harassment may be inferred by the consistent pattern of communication and unexpected alteration of interaction or behaviour of the accused or colleagues.
• Testimonial Evidence: The core of the inquiry process normally comprises testimonies of the complainant, respondent, or witnesses.

However, in the majority of PoSH complaints, particularly those pertaining to sexually coloured remarks or inappropriate glances, there may not be any direct evidence. This does not make the complaint invalid; it requires detailed questioning by the ICC/IC aligning with the concept of “preponderance of probability.”

PoSH inquiries are not similar to inquiries pertaining to criminal trials. They are internal processes regulated by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The action or proceedings are guided by the principles of natural justice, that is, providing both parties a fair hearing and acting impartially.

The PoSH Act does not require hard evidence to prove a complaint. Instead, it allows the Internal Committee to make decisions based on the accounts’ credibility, the testimonies’ coherence, and corroborative circumstances. In a PoSH case, even where there is no evidence, the ICC has the right to draw a conclusion based on the degree of conviction and consistency of the parties before it in the course of the inquiry.

Take a look at our PoSH compliance and consultancy services to learn more about how compliance frameworks can aid this.

Situation:

A female employee felt compelled to speak out against her boss’s inappropriate conduct in private interactions. She disclosed that he frequently made indecent comments after meetings, hiding behind the pretence of discussing the minutes. There are no recordings or emails that prove her case. The respondent denies the allegations.

Criminal Proceedings:

If the aggrieved woman chooses to file a criminal case in the court of law, she will be required to prove her boss’s inappropriate behaviour. As per the Indian Evidence Act, 1872, the person seeking a legal judgement must bear the burden of proof. This would have led to dismissal of this case due to insufficient evidence, or the court would have considered it as a false complaint.

PoSH Proceedings:

In the circumstance of a PoSH complaint being registered, it must be acknowledged that the testimony provided by the aggrieved woman is inherently recognised as valid evidence. If a complainant reaches the ICC/IC and narrates the incident, an inquiry may start just on the basis of her testimony and written complaint. The ICC/IC asks multiple open-ended and timeline-based questions to the complainant and respondent separately. Suppose that the complainant is consistent in her statement over time and reports that she started avoiding meetings or any other symptoms of distress fairly soon after the meeting; her altered behaviour can be accepted as circumstantial evidence. Other colleagues may also notice these changes.

The ICC can also examine whether there have been chances of such complaints being brought forward against the respondent, even on an informal level, in the past.

This demonstrates that even the PoSH cases with no evidence can be fairly evaluated by understanding the patterns and behaviour instead of clear evidence.

Complainants often fear being doubted in case they do not have evidence of sexual harassment. Nevertheless, what matters is how the complainant explains the situation. Here is how a complainant can strengthen their case:

• Use the 5W 1H Method: Clearly explain Who was involved, What happened, Where it happened, When it happened, Why it was wrong, and How it affected them.
• Indirect Signs: List avoidance of individuals or places, decline in job performance, or alteration in emotional state.
• Contemporaneous Records: These include emails to friends, diary entries, or notes taken during the incident, which are all acceptable supporting materials/corroborative evidence.
• Trust the Process: Honesty and calmness during the inquiry can help the ICC arrive at a just conclusion.

Although it may be an intimidating experience, especially when respondents face a no-evidence PoSH complaint, denial or deflection will only do more harm than good. To reply constructively:

• Remain Calm and Composed: Describe a rational version of what occurred.
• Identify Gaps: When you cannot remember information, be honest and state that you do not remember instead of making guesses.
• Character References: Providing past feedback from colleagues or managers can assist in creating a pattern of respectful behaviour.
• Do Not Retaliate: Refrain from accusatory or emotional reactions. Showing respect for the process speaks well of your credibility.

The Internal Complaints Committee (ICC/IC) is essential in ensuring the complaint is resolved correctly. It is necessary to equip the ICC members with the proper training. Here is what the ICC should focus on when there is a lack of evidence:

• Neutrality and Objectivity: The ICC should not make assumptions or personal biases.
• Credibility Evaluation: Look for internal consistency in the statements made by the complainant and respondent. Also, check whether the events described are plausible and whether the behaviour during questioning seems genuine.

Best practices include:

• Asking open-ended, timeline-related questions.
• Confirming situational details, like meeting times, emails, and eyewitnesses.
• Documenting the findings in a report, including why a conclusion was reached.

Relying just on emotions or dismissing complaints due to lack of evidence can be a potential risk of injustice or even promote false PoSH complaints. Following the proper PoSH complaint process can reduce that risk.

Conclusion

Not all PoSH complaints are accompanied by evidence, but that does not make them any less valid. The legal system has come to understand that instances of sexual harassment in the workplace are typically carried out discreetly, creating a culture of fear and intimidation that can prevent victims from seeking help or justice. It gives the Internal Committees the power to make fair and sensitive inquiries even where there is no direct evidence. Knowing your rights and duties as a complainant, respondent, employer, or ICC member is vital to achieve a fair, balanced resolution.

Complykaro provides customised PoSH training in India to help organisations stay prepared, aware, and legally compliant with the PoSH Act. Invest in the right training and framework to build a workplace that is compliant and respectful. Speak with our experts today!