POSH Act: Cases suggest need for safeguards even while keeping Evidence Act inapplicable

While relaxed evidentiary standards ensure that offences in the private realm get convicted in cases under the POSH Act, the Indian Evidence Act should not be dismissed as wholly obstructive and containing irrational technicalities.

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THERE are significant differences in the precise mix of technical rules of evidence that apply to different kinds of courts. Certain courts' procedures grant discretion to the judges to disregard the Indian Evidence Act, 1872 ('IEA') in cases where adherence to the strict evidentiary standards would incur undue expenditure or delays. However, because the duty to follow such evidential rules is so vital to the legal system, overtly obvious wording must be provided in the legislation to allow deviation from these standards.

The Internal Complaints Committee ('ICC') Proceedings under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 ('POSH Act') is one such significant divergence and the focus of this article. The ICC is not bound by strict procedural and evidentiary rules, and is required by law under Rule 7(4) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013 to "make inquiry into the complaint in accordance with the principles of natural justice."

Therefore, IEA's evidentiary rules and procedures do not apply to ICC hearings, and it can depend on hearsay evidence, or settle matters of burden of proof or admissibility of evidence, among other things, by exercising discretion. This issue may be argued from the victim's perspective as a great right in that admitting a charge of sexual harassment does not need proof.

However, men have expressed concern about women filing false complaints as a result of relaxed evidentiary standards due to the non-applicability of the IEA, and this has often surfaced in debates concerning sexual harassment in the workplace and remains one of the principal objections to the non-applicability of IEA to POSH proceedings.

In this context, this article seeks to examine how the non-applicability of the IEA to POSH proceedings gives administrative authorities more leeway in avoiding procedural technicalities and taking a functional approach in solving sexual harassment cases, which more often than not occur in a private setting with no evidence except the word of the accused against the word of the victim.

Also read: Field notes of a PoSH trainer: Unravelling class differences

Relaxed evidentiary standards

The IEA was designed to demonstrate the importance of evidence in proving the existence of an offence committed. This criterion is, however, not mandated by the POSH Act. As a result, a complaint could be filed with no evidence, and cases/complaints are frequently filed just on the basis of victim's testimony. In these cases, the ICC is given the authority to recognise evidence; but, because the IEA does not apply to ICC inquiries, what constitutes as evidence and what does not is entirely up to the ICC. There is no standard procedure for gathering, storing, and documenting evidence.

This issue may be argued from the victim's perspective as a great right in that admitting a charge of sexual harassment does not need proof. And, because the law is based on the concept of natural justice, it is not necessary to establish, as in every other case, that sexual harassment occurred beyond a reasonable doubt, but the sheer presence of the possibility is sufficient.

The defenders of the current arrangement typically argue that it is the mandate of these tribunals to safeguard such public interests and that they can only do so if they are unfettered by the stringent norms of evidence under the IEA. To that end, they assert that many instances of sexual harassment at work occur during one-on-one interactions, that ICCs are frequently confronted with the problem of a lack of hard evidence, and that a less onerous procedure, combined with a lower evidentiary standard, aids in obtaining justice for women in such cases.

They also argue that because the IEA has certain artificial rules, some logically relevant evidence and essential facts will be excluded. However, the counter argument to the non-applicability of IEA to POSH proceedings is that women could now easily make false and malicious complaints against men about sexual harassment. They are concerned that the woman's testimony will be taken at face value, and that in the lack of definitive evidence, the court will be forced to rely on circumstantial evidence and the sole testimony of women to reach its decision.

Low number of fake cases

First of all, such a counter-argument begs the question of why individuals feel the need to assume that victims or litigants are liars only when a provision is designed to help a particularly oppressed group. When it comes to a legal provision aimed at protecting female victims, numerous voices are raised in opposition.

A detailed examination of the numerous reports that have researched the number of fake sexual harassment cases filed shows that the rates of false reports are consistently quite low, ranging from two to ten per cent, just as they are for other offences. For example, a 2014 study of cases of sexual assault reported to the Los Angeles Police Department discovered that only four per cent of the complaints brought were falsified cases, and another report dealing with sexual harassment cases reported to a university over a ten-year period found that only six per cent of the cases were false allegations.

Even in India, according to the reports released by the National Crime Records Bureau, less than eight per cent of the accusations were found fake. Furthermore, such estimates do not include the number of cases that went unreported due to fear of being ostracised or stigmatised, and if we add that, the percentage of false cases could be even lower. Therefore, contrary to popular assumption, false reporting of sexual harassment is extremely rare, and even when women overcome their difficulties and come forward with their complaints, they face such prejudice and widespread scepticism.

Also read: Beyond POSH: India urgently needs a women-friendly civil law regime to bring past sexual offences under trial

Little evidence

Moreover, there is little doubt that the majority of these cases of sexual harassment occur in the private realm, where there is little to no evidence to prove that the harassment took place. In particular, a close examination of cases involving sexual harassment in the workplace reveals that sexually charged comments as well as physical advances are typically made behind closed doors, for which there are no eyewitness accounts, audio tapes, or video recordings. It is simply the victim's word against the accused's word.

For example, during my conversation with a human resources representative from a Japanese multinational corporation, he described a recent event in which the man had made some sexually charged statements and had been constantly staring at the woman. (I undertook an unstructured interview with a Human Resource representative from a Japanese financial holding company on the procedures they follow in sexual harassment complaints and how the Evidence Act's non-application helps women in such cases.) There was no concrete evidence in this case as there was no proper documentary evidence, and it became a case of a he said-she said dispute. The ICC members spoke to other employees to see if they had heard the accused's remarks or if they had ever noticed him staring at the woman, as is alleged in this instance. Although the employees never witnessed the alleged incidents in this case, a few of them claimed that the accused was habitual of making remarks and staring, and was thus convicted based on circumstantial evidence, that is, witness testimonies.

The committee determined that the accused was likely to behave in such a manner because he had done so regularly previously. Due to the absence of rigorous evidentiary standards in this case, the committee could reach the finding by relying on the perpetrator's pattern of behaviour directed at multiple female employees.

Such a case could have never been brought to justice with the cumbersome procedure and technical rules of evidence as envisaged under the IEA. In such an instance, Section 52 of the IEA would apply, which prohibits, in civil cases, the court from accepting proof of a person's character that would render plausible or implausible any conduct charged to him. Admitting materials which are logically probative to a prudent mind becomes extremely difficult under the IEA.

Take, for example, the case of Bhuwan Chandra Pandey versus Union of India & Ors. (2020) decided by the Uttarakhand High Court. In this matter, the appellant, together with fellow personnel, including two female trainees, sat in the cabin of a truck returning to Gwaldam station after completing a night training exercise. It is claimed that the appellant sexually assaulted and molested one of the female trainees in the cabin. There was no further evidence in this case outside the victim's testimony.

However, there was circumstantial evidence in the form of the lady trainee crying "please…. please" to the other female trainee, and a couple of witnesses seeing her in a highly troubled state when they halted at the Kandhar stop. Here, the court decided that in such cases, one can rely on the sole testimony of a woman in reaching a decision and that there was no cause to doubt the lady's claims when combined with circumstantial evidence (relying on the Supreme Court's judgments in State of Punjab versus Gurmit Singh & Ors. (1996) and Vijay @ Chinee versus State of M.P. (2010)).

The court ruled that because rigorous evidentiary rules are not applicable during departmental inquiries, circumstantial and hearsay evidence can be admitted (relying on the Supreme Court's judgment in State of Haryana & Anr. versus Rattan Singh (1977)). It had also stated that, in light of the totality of the circumstances, if there is no reason to doubt the victim and no possible explanation offered by the accused to demonstrate that the complainant had a motive to falsely implicate him of the said offence, then the court should normally have no qualms in having to accept her testimony (relying on the Supreme Court's judgment in State Of Maharashtra versus Chandraprakash Kewal Chand Jain (1990)).

Here, there is currently no statutory requirement to search for additional evidence or corroboration to verify the victim's testimony before issuing an order of conviction. Therefore, in the lack of any strict evidentiary standards, the court in this case could depend solely on the victim's testimony because there was nothing to indicate that the complainant had any dishonest motive to implicate him of the said offence.

Also, during my conversation with one of the facilitators appointed by the National Law School of India University, Bengaluru under its Code to Combat Sexual Harassment to provide counselling and mediation services to complainants, I was made aware of a recent incident in which the ICC went so far as to rely solely on a WhatsApp message in which the alleged perpetrator apologised to the victim after the incident occurred. The committee found this evidence conclusive and found him guilty of sexual harassment charges.

In the absence of such a rule relating to the non-applicability of the IEA to POSH proceedings, it would have been extremely burdensome for the victim to ensure the relevancy and admissibility of every single piece of evidence that she submits. In this scenario, for example, procuring a certificate as per Section 65B of the IEA, which deals with admissibility of electronic records, would have been burdensome for the victim. And, it would be demeaning to tell a woman that her story of woe will not be believed until it is corroborated in material particulars.

Also read: Prevention of Sexual Harassment at 'Online' Workplace

Takeaways

These instances illustrate how a lower evidentiary burden has enabled women to obtain the justice they deserve even when presented with the obstacle of lack of evidence or witnesses. Against this background, it is argued that the IEA should not apply to ICC proceedings under the POSH Act, since it would provide administrative authorities more leeway in avoiding technicalities and pursue a functional, instead of a theoretical and doctrinal, approach. In practice, it is difficult for ordinary courts to make decisions free of formalities and technicalities. However, when ICC hearings are not constrained by technical rules of evidence, they may take a pragmatic approach in resolving complicated matters, as was taken in the aforementioned cases.

However, although the strict and rigorous evidentiary rules of the IEA pose a challenge for sexual harassment inquiries, which are frequently plagued by a lack of evidence due to the private nature of the offence, the crystallisation of experience of the IEA should not be dismissed lightly either. While the new socio-economic challenges addressed by these ICCs demand some changes to the existing restrictive standards, the IEA should not be dismissed as wholly obstructive and containing irrational technicalities.

Most of the procedural safeguards, such as 'rape-shield' safeguards, which are ordinarily afforded to defendants and complainants are conspicuously absent in such proceedings, and the government must take steps to incorporate such safeguards into the POSH Act.