Understand the rules of evidence in a POSH inquiry, the role of BSA 2023, Section 11 of the POSH Act, electronic evidence, natural justice and the Internal Committee's responsibilities.
Rules of Evidence while conducting a POSH Inquiry
A POSH complaint is not a courtroom trial. But that does not mean evidence does not matter.
The BSA may not directly govern the IC inquiry under the POSH Act, but understanding its principles of evidence can significantly improve the quality of evidence appreciation in a POSH inquiry.
In fact one of the most important responsibilities of the IC is to carefully examine the facts, documents, witness statements and other material placed before it.
Does the Bhartiya Sakshya Adhiniyam, 2023 apply to a POSH inquiry?
The simple answer is, not directly in the same manner in which it applies to a judicial proceeding before a court. The BSA, 2023 is the law that deals with general rules and principles of evidence for judicial proceedings before the courts. It came into force on 1st July, 2024.
But here is the important part that must not be missed.
The fact that the strict provisions of the BSA do not automatically govern the IC inquiry does not mean that the IC can treat evidences casually.
What should an IC look at?
The POSH Act itself requires and inquiry into the complaint.
Section 11 of the act provides that the framework for the inquiry and gives the Committee certain powers similar to those of a civil court, for example requiring production of documents and examining persons the Rule further also require the inquiry to follow the principles of natural justice.
Therefore, the IC may have to examine:
- What exactly happened?
- When and where did it happen?
- Who was present
- What did the complainant report and when?
- What does the respondent say?
- Are there witnesses?
- Are there emails, WhatsApp messages, photographs, CCTV footage, call records or other digital material?
- Do documents support or contradict either version?
- Does the overall material form a consistent picture?
Evidence is not always a photograph or a video
This is perhaps one of the biggest misconception about POSH inquiries. A complainant may not have a recording of the incident
- There may be no CCTV
- There may be no independent eye witness
That does not however automatically mean that the complainant has no evidentiary value. At the same time, an allegation should not be treated as proved only because it has been made. Here the committee has to assess the material placed before it fairly and objectively.
The BSA is a lens- not the rulebook of IC
The BSA recognizes different forms of evidence, including oral evidence and documentary and electronic records. It also contains principles concerning direct oral evidence and electronic records. These concepts can help IC ask better questions:
- Is this information direct?
- Is this document authentic?
- Is the message complete or electively presented?
- Does the surrounding material support it?
- Is there any reason to doubt its reliability?
- Is there other evidence that corroborates or contradicts it?
But the IC must remember: it’s conducting a POSH inquiry- not a criminal trial.
Its responsibility is to conduct a fair inquiry under the POSH framework, give both sides a meaningful opportunity to be heard, examine the material and arrive at a reasoned finding.
And evidence cuts both ways: evidence is not only something the complainant brings. It is equally important for the respondent.
An email may support the complainant and same email chain may provide context for the respondent.
A WhatsApp message may appear incriminating when read alone, but different when the complete conversation is examined.
A witness may support one version of events—or may reveal that they did not actually witness the incident.
Context matters.
The real skill of an Internal Committee A good Internal Committee is not one that simply asks:
- “Where is the proof?”
Nor is it one that says:
- “We believe the complainant, therefore the allegation is proved.”
The better question is:
- “What does the entire material before us establish?”
and
- that requires patience.
- It requires neutrality.
- It requires understanding of evidence.
- It requires natural justice.
And above all, it requires the ability to distinguish between:
allegation, evidence, inference and finding.
These four are not the same thing. A complaint is an allegation. A document or testimony may be evidence. What the Committee understands from that evidence is an inference. And only after a fair evaluation of the material can the Committee arrive at its finding. Perhaps the most important lesson:
- POSH compliance is not merely about receiving a complaint.
- It is about knowing how to conduct the inquiry that follows.
Because when an ICC examines evidence carefully, it protects both sides:
- The complainant gets a meaningful opportunity to have her complaint examined.
- The respondent gets a meaningful opportunity to answer the allegations.
- And the organisation gets a process that is more fair, reasoned and defensible.
Evidence should never become a weapon.It should become a tool for discovering the facts and that, is one of the most important skills an Internal Committee must develop.
