CHAPTER-IV

ROLE OF JUDICIARY TOWARDS THE WOMEN

EMPLOYEES
4.1 General

Justice means balancing of interests. Existence of democracy depends on justice and

justice depends on the independent judiciary. Thus it is clear that judiciary is identified
as the last bulwark against the arbitrariness and all that can be broadly labelled as not
only unjust but also immoral. A judge without judicial activism can perhaps be
described as a flower without a colour and fragrance; and a vehicle without fuel and
wheels. In protecting the principle of ‗welfare state‘ judiciary, should play an active
role as a watching tower and judgements should be society oriented.

The majority of the women are either unaware or ignorant about their rights, which are
provided to them by the law. Even if, they are made aware or well versed with the
whole scenario, a very few have economic resources and courage to obtain legal
redress. No one can ignore the significant role being played by the judiciary in this
direction helping her to get what is due to her as a matter of right. It‘s a great
achievement of not only one of the pillars of democracy but the democracy itself that
the principle of equality between the sexes enshrined in our constitution is being
reinforced and safe guarded through sound judicial process. After that in sexual other
pronouncements, the judiciary has shown its innate desire to help, this deprived and
underprivileged section of the society facing the brunt of this form of sexual violence in
silence while giving a whole new dimension to justice himself.208

4.2 Sexual Harassment and Indian Judiciary

Prior to vishaka, there have been quite a few remark also judgements that not only
brought to fore the existence of this systematic and planned discrimination in our

208
See Apparel Export Promotion Council v. A.K. Chopra, 1999, 625 and also see Medha Kotwal Lele v.
Union of India, 2004 (5), SCALE 573 & 2013 (1) SCC 297

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society but also exposed glaring loopholes in making safe work places available to
increasing force of working women.

4.2.1 Sexual Harassment at Workplace – a Slight Harm?

Bajaj case

In this case, the victim and the offender (both government officers) were present in at a
dinner party in another government officer‘s residence. In the lawn, ladies and
gentlemen were sitting in separate semicircles. The accused (K.P.S. Gill) crossed over
to the ladies circle and called the victim, saying he wanted to talk to her over some
matter. She went to him and when she was about to sit on a chair the accused drew that
chair close to touch his chair. As she pulled the chair back to its place, the chair was
again pulled by the accused. Realising that something was wrong, the victim moved
away and sat at her original place between the ladies. The accused reached her and
stood so close to her that he was only four inches away from her knees. He asked her to
get up and come along with him. The victim objected saying, ―Mr. Gill, how dare you,
you are behaving in an obnoxious manner, go away from here.‖ The accused again
commanded the victim to get up and accompany him, and blocked her way in such a
manner that she could not get up from the chair without touching him. She immediately
drew her chair back, got up and tried to leave the place. On this, the accused slapped
her on her posterior in full view of all ladies and gentlemen present.

On 20 july 1988, she lodged a complaint alleging commission of offences under

Section 341, 342, 354 and 509 Indian Penal Code against the Director General of police
of Punjab (KPS gill) for sexually harassed in a party in full view of her associates.
Many of them brushed aside her humiliation by a drunken Gill as a ‗trivial‘ incident.
The entire political and bureaucratic establishment threw its weight to protest the police
chief and awarded him the ‗Padma Shri‘ when the matter was sub-judice. The said
establishment, at the same time, tried to intimidate Bajaj by spreading slander against
her and isolating her for daring to protest. In the words of Bajaj ―when your
prescription is different from all others because ailments with which you are suffering
have unique features, when you do not have a set of rules or standards or established

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norms or tradition to follow or any legislation or precedent to bank upon, you have to
muster courage to fight against all odds and create your own way out of the complex
and peculiar situation.‖209

Raising the voice against a national hero was not very easy, though emotional, for that
quite a senior officer, then Commissioner-cum-Secretary. ―the decision to complain
was really tough- there are consequences of complaining and not complaining. If I
hadn‘t complaint it would have appeared that I was willing participant. The people
above him left no stone unturned to protect Mr. Gill. And he would have continued
doing this to other women. I had to put a stop to this. Why should I cry about my
humiliation in private? I just had to fight for my dignity. Because of this, there were
times when even my life was threatened. Yet I remained determined. 18 years is not a
short period. It is a lifetime210.

An FIR was registered and complaint to the court of the chief judicial magistrate was
made. The high court quashed the complaint and FIR. The Supreme Court reversed the
judgment of the high court and held that the FIR disclosed an offence under Section
354 Indian Penal Code. One of the arguments, which found favour with high court was
that, in view of Section 95211 of the Indian Penal Code, the harm caused did not entitle
Mrs. Bajaj to complain. Regarding this provision, the Supreme Court observed:

“viewed in the light of the above principles212, we are of the opinion that section 95 of
IPC has in no manner application to the allegations made in the FIR. On perusal of the
FIR, we have found that Mr. Gill, the top most official of the state police, indecently
behaved with Mrs. Bajaj, a senior lady IAS officer, in the presence of a gentry and in
spite of her raising objections continued with such behaviour. If we are to hold, on the

209
Story of the Day, the Times of India, 18 july,1988
210
Reality Bytes, Delhi Times, The Times of India, July 30, 2005
211
Section 95 of the Indian Penal Code states: ―95. Act causing slight harm. – nothing is an offence by
reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm if
that harm is so slight that no person of ordinary sense and temper would complain of such harm.‖
212
The court had earlier cited Veeda Menezes v. Yusuf Khan Hazi Ibrahim Khan, 1996 (supp) SCR 123.
According to the said judgment, whether an act is trivial will depend on the following factors: ―nature of
the injury, the position of the parties and the knowledge and the intention with which the act was done
and other related circumstances, it cannot be judged solely by the measure of physical or other injury the
act causes.‖

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face of such allegations, the ignominy and trauma to which she was subjected to was so
slight that Mrs. Bajaj, as a person of ordinary sense and temper, would not complain of
it, sagacity will be the first casualty.”213

And finally, the hon‘ble Supreme Court held that allegation made by Rupan Deol Bajaj,
prima facie disclose offences under Section354 and Section 509 Indian Penal Code,
1860. In this case, the perpetrator was formed guilty for repeatedly making in
appropriate advances and slapping the complainant on her posterior. The Supreme
Court pronounced that the ultimate test for ascertaining whether modesty has been
outraged under the Indian Penal Code is whether the action of the offender could be
perceived as capable of shocking the senses of decency of woman. The court adopted
the many dictionary definitions of the term of modesty which are: (i) womanly
propriety of behaviour; scrupulous chastity of thought, speech, and conduct, (ii)
decorous in manner and conduct; not forward and lewd; (iii) freedom from coarseness,
indelicacy or indecency; regard for propriety in dress, speech or conduct; (iv) reserve or
sense of shame proceeding from instinctive aversion to impure or coarse suggestion.214

Having intention to insult and outraging the modesty of women is an essential element
of under section 354 read with section 509 of Indian Penal Code. In all criminal
offences, intention has to be proved from the acts of the accused and facts and
circumstances of the cases.

In this case the accused was found guilty under Section 354 read with 509 of Indian
Penal Code and court directed him to pay 2 lakh rupees as compensation. This was the
first instance where judiciary actually took a stand up holding women‘s right. There has
been no looking back by the judiciary since, then, keeping pace with the changed work
culture, mauling progressively, step by step, in its quest to provide safe and projective
environment to the women of the society.215

213
Bajaj case.
214
Indira Jaising, Sexual Harassment at Workplace 25 ( Universal Law Publishing, 2nd edn. 2014).
215
Ritu Gupta,Sexual Harassment at Workplace 46 (Universal Law Publishing, Ist edn. 2014).

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4.2.2 Vishaka case

Not many, apart from lawyers and activities, would recall that the recent Sexual
Harassment Act,216 as published in the Gazette of India had its origins in the ghastly
rape of a community worker in rural Rajasthan.217

In India, ―there was no statutory definition of sexual harassment till 1997 through there
had been quite a few notable judgements earlier that pinned down and brought to fore
the existence of this problem. Before 1997, any women facing sexual harassment at
workplace had to lodge a complaint under either Section 354 or Section 509 of Indian
Penal Code 1860. Moreover, till Vishaka, neither civil nor penal laws in India imposed
any obligation on the employees or person in charge of the workplace to protect the
female employees from sexual harassment. For the first time in the Indian Judicial
history, the court recognised sexual harassment at workplace a recurring phenomenon.
The hon‘ble Supreme Court took initiative in the above said case to define it in a
formal legal manner. The definition of sexual harassment at workplace was closely in
Pari materia with that of CEDAW.218‖

The main aim of the Apex Court during the cause of evolving these guidelines was to
ensure a fare, secure and comfortable work environment on one hand and completely
eliminate situation or possibilities, where the protector could abuse his trust and turn
predator on the other. The Supreme Court also justified that these guidelines would not
prejudice any rights available under the protection of Human Rights Act, 1993. The
employees or person in charge of the workplaces, in public as well as private sectors
were directed to take appropriate steps to present sexual harassment.‖

216
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
217
Rekha Dixit, ‗Her loss; Our Laws‘, The Week, Sep. 2013
218
The United Nations Convention on the Elimination of all Forms of Discrimination against Women,
1979, Recommendation No. 19.

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4.2.3 An Analysis of Judgement of Vishaka

Vishaka v. State of Rajasthan219

The historic judgement was outcome of a writ petition filed by certain social activities
and NGOs to an incident of brutal gang rape of a government development worker in a
village Rajasthan. Bhanwari devi was appointed as a ‗saathin‘ a female village level
social worker of a development programme run by the Rajasthan government. This
project was started for the empowerment of women. The main aim of the project was to
fight against child and multiple marriages in the villages, with the assistance of the
local administration. In this area, during the festival of Akhatejj, as per the tradition in
Rajasthan, thousands of infants and children are married every year. She tried to stop
the marriage of infant daughter in Bhateri, her village, as a part of her duty.

The marriage took place nevertheless clandestinely but in this entire exercise what she
earned was the ire of the Gujjar family (infant daughter family). As expected, the
retribution came quite early in the form of social boycott. The Gujjars, an influential
and majority community, resolved not to buy earthen pots from her and refused to sell
milk to her. Not only this, she was threatened with dire consequences and harassed
mentally as well as physically. 220

In sep 1992, five men belonging to an upper caste community who wanted to ‗teach her
a lesson‘ for challenging their authority, including Ramkaran Gujjar, gang raped
Bhanwari in front of her husband while both were working in their fields.

In this case after the rape, the only male doctor at the primary health centre refused to
medically examine her and the doctors at Jaipur only confirmed her age without
making any reference to rape in his medical report. At the police station, she was also
tortured by the policeman. The policeman asked Bhanwari to leave her lehenga behind
as evidence and return to her village. She was left with only her husband‘s bloodstained
dhoti to wear.

219
AIR 1997 SC 3011
220
Ritu Gupta, Sexual Harassment at Workplace 47 ( Universal Law Publishing 2014).

106
Apathy of the system crossed all limits when their plea to let them sleep at the police
station that night was turned down bluntly. She received no support or help of any sort
from her employers, the Rajasthan government or any other corner despite repeated
complaints to the authorities. Instead, the district administration along with the police
not only tried to cover up but also shifted all burden upon her holding her responsible
for the unpleasant experience.

In her quest for justice, she filed a case against the rapists in the trial court without
losing confidence and her faith in the rule of law. It was only under pressure from
various women‘s groups that the accused were arrested. The trial court acquitted the
criminals in 1995. ―It is beyond comprehension that those who live in rural culture,‖
said the court, ―... would in this manner commit a rape. Particularly in collusion with
someone who is 40 years of age and another who is 70 years of age and that too during
broad daylight... in the presence of other men. The court is of the opinion that Indian
culture has not fallen to such low depths that someone who is brought up in it, an
innocent, rustic man, will turn into a man of evil conduct who disregards caste and age
differences and becomes animal enough to assault a woman...‖. The judge also asserted
that 52 hours delay in the medical examination meant it was possible that she was lying
about the accusation.

Down but undeterred, Bhanwari Devi did not lose her heart. When reporters met her to
record her struggle, she said, ―Print my name, I am not a criminal that I should be
ashamed. Take my photograph, I have nothing to hide. It‘s those men who should feel
ashamed to come out in broad daylight and have their photographs taken.‖ However, by
1997, 15 years after the incident, the Rajasthan High court held only single hearing of
the case and two of the accused were dead.221

Her inimitable fighting spirit inspired fellow saathins and women‘s groups
countrywide and they launched a concerted campaign for justice for Bhanwari. By
now, there was national outrage regarding this case. Relentless efforts of everyone
associated with the movement brought fruit when in the appeal filed before it, the High

221
Ibid. At p.48

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Court held, ―it is a case of gang-rape which was committed out of vengeance.‖ ―It was
a serious lapse on the part of the employer‖ (the state government of Rajasthan in this
case), the Court pointed out, ―not to provide ‗safe working environment to the
Saathins.‖

As an immediate and instant response to the judgement of the High Court, the
remaining three accused, who had until then been absconding, surrendered before the
court.

Several women‘s groups filed a Public Interest Litigation (PIL) in the Supreme Court,
based on which the Vishaka judgment was delivered in 1997. Rest in history, this can
be said to be a significant legal victory of women organization heralding a new trend in
the country.222

The writ petition was filed in the SC with three aims:

(1) To assist in findings suitable methods for the realization of gender equality.
(2) To prevent Sexual Harassment at workplace
(3) To fill vaccum in the existing legislation.

The Supreme Court observed that, ―in the absence of domestic law occupying the field,
to formulate effective measures to check the evil of sexual harassment of working
women at all work places the contents of International Conventions and norms
(CEDAW) are significant for the purpose of interpretation of the guarantee of gender
equality, right to work with human dignity in arts 14, 15, 19 (1) (g) and 21 of the
constitution and the safeguards against sexual harassment implicit therein. Any
international convention not inconsistent with the fundamental rights and in harmony
with its spirit must be read into these provisions to enlarge the meaning and content
thereof, to promote the object of the constitutional guarantee. This is implicit223 from
Article 51 (c) and the enabling power of the parliament to enact laws for implementing
the international conventions and norms by virtue of Aricle 253 read with Entry 14 of
the Union list in seventh schedule of the Constitution. Article 73 also is relevant. It

222
Ibid at p. 49
223
Ethinic Affairs v. Teoh, 128 ALR 353; Nilabati Behera v. State of Orissa, AIR (1993)2 SCC 746.

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provides that the executive power of the union shall extend to the matters with respect
to which parliament has power to make laws. The executive power of the union is,
therefore, available till the parliament enacts legislation to expressly provide measures
needed to curb the evil.224‖

Thus, ―the power of the court under Article 32 for enforcement of the fundamental
rights and the executive power of the union have to meet the challenge to protect
working women from sexual harassment and to make their fundamental rights
meaningful. The progress made at each hearing culminated in the formulation of
guidelines to which the union of India gave its consent through the learned solicitor
general, indicating that these should be the guidelines and norms declared by this court
to govern the behaviour of the employers and all others at the work places to curb this
social evil.225‖

The obligation of the court under Article 32 of the Indian Constitution for the
enforcement of these fundamental rights in the absence of legislation must be viewed
along with the role of judiciary envisaged in the Beijing statement of principles of the
independence of the role of judiciary in the LSEASIA region. ―These principles were
accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those
representing the minimum standards necessary to be observed in order to maintain the
independence and effective functioning of the judiciary. The objectives of the judiciary
mentioned in the Beijing Statement are:‖

Objectives of the judiciary: 10 the objectives and functions of the judiciary include the
following:

(1) To ensure that all persons are able to live securely under the rule of law;
(2) To promote, within the proper limits of the judicial function, the observance
and the attainment of human rights; and

224
Para no. 7 of Vishaka case.
225
Para no. 8 of the Vishaka case.

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 (3) To administer the law impartially among persons and between persons and
the state.226‖

The Supreme Court said again the International Conventions and norms are to be
read into them (Fundamental Rights) in the absence of enacted domestic laws
occupying the field when there is no inconsistency between them. ―The High Court
of Australia in Minister for Immigration and Ethnic Affairs v. Teoh., 227 has
recognised the concept of legitimate expectation of its observance in the absence of
a bill of rights in the constitution of Australia. In Nilabati Behera v. State of
Orissa228 a provision in the ICCPR was referred to support the view taken that an
enforceable right to compensation is not alien to the concept of enforcement of a
guaranteed right as public law remedy under Article 32 of the constitution, distinct
from the private law remedy in torts. There is no reason why these international
conventional and norms cannot, therefore, be used for construing the fundamental
rights expressly guaranteed in the constitution of India which embody the basic
concept of gender equality in all spheres of human activity.‖‖

The Apex Court in Vishka‘s case, also referred to Article 51 (c), Article 253, Entry
14 of Union list in Seventh Schedule and Article 73, the court also referred to
definition of human rights in Section 2 (d) of Protection of Human Rights Act, 1993
and some provision of CEDAW. The Supreme Court taking note of the fact that the
present civil and penal laws in India do not adequately provides for specific
protection of women from sexual harassment in work places and that enactment of
such legislations will take considerable time provided certain guidelines declared
under Article 141 of the constitution. So, we see that Supreme Court played the role
of guardian of fundamental rights. Rather, it would be appropriate to say that
Supreme Court gave a temporary respite to the working women.

Having regard to the definition of human rights in section 2 (d) of the protection of
Human Rights Act, 1993. Taking note of the fact that the present civil and penal

226
Para no. 11 of the Vishaka case
227
128 ALR 353,
228
(1993) 2 SSC 746: (1993) AIR, SCW 2366

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 laws in India do not adequately provide for specific protection of women from
sexual harassment in work places and that enactment of such legislation will take
considerable time. The court further held that it is necessary and expedient form
employers in work places as well as other responsible persons or institutions to
observe certain guidelines to ensure the prevention of sexual harassment of
women.‖

4.2.4 Guidelines and Norms Prescribed in Vishaka Case

Guidelines and Norms prescribed in this case are as follows:

i. Duty of the Employer or Other Responsible Persons in Workplaces and

other Institutions
It shall be the duty of the employer or other responsible persons in work places
or other institutions to prevent or deter the commission of acts of sexual
harassment and to provide the procedures for the resolution, settlement or
prosecution of acts of sexual harassment by taking all steps required.
ii. Definition

―For this purpose, sexual harassment includes such unwelcome sexually determined
behaviour (whether directly or by implication) as under:

a. Physical contact and advances

b. A demand or request for sexual favours
c. Sexually colour remarks
d. Showing pornography
e. Any other unwelcome physical, verbal or non-verbal conduct of sexual
nature.

When any of these acts is committed in circumstances where under the victim of such
conduct has a reasonable apprehension that in relation to the victim‘s employment or
work whether she is drawing salary or honorarium or voluntary, whether in
government, public or private enterprise such conduct can be humiliating and may
constitute a health and safety problem. It is discriminatory for instance when the

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 woman has reasonable grounds to believe that her objection would disadvantage her in
connection with her employment or work including recruiting or promotion or when it
creates a hostile work environment. Adverse consequences might be visited if the
victim does not consent to the conduct in question or raises any objection thereto.‖

iii. Preventive Steps

All the employers‘ people‘s in-charge of work place whether in the public or private
sector should take appropriate steps to prevent sexual harassment. Without prejudice to
the generality of this obligation they should take the some steps as under:

a. Express prohibition of sexual harassment as defined above at the work place

should be published, notified and circulated in appropriate ways.
b. The rules or regulations of government and public sector undertaking bodies
relating to conduct and discipline should include rules or regulations prohibiting
sexual harassment and provide for appropriate penalties in such rules against the
offender.
c. The private employers be should takes steps to include the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing
Orders) Act, 1946.
d. The appropriate work conditions should be provided in respect of work, health,
leisure and hygiene to further make sure that there is no hostile environment
towards women at workplaces and no employee women should have reasonable
grounds to believe that she is disadvantaged in connection with her
employment.
iv. Criminal Proceedings

Where such conduct amounts to a specific offence under the IPC or under any other
law, ―the employer shall initiate appropriate action in accordance with law by making a
complaint with the appropriate authority. In particular, it should make sure that victims
or witnesses are not victimized or discriminated against while dealing with complaints
of sexual harassment. The victims of sexual harassment should have the option to seek
transfer of the perpetrator or their own transfer.‖

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 v. Disciplinary Action

Where such conduct amounts to misconduct in employment as defined by the relevant

service rules, appropriate disciplinary action should be initiated by the employer in
accordance with those rules.

vi. Complaint Mechanism

Whether or not such conduct constitutions an offence under law or a breach of the
service rules, as appropriate complaint mechanism should be created in the employer‘s
organization for redress of the complaint made by the victim. Such complaint
mechanism should ensure time bund treatment of complaints.‖

vii. Complaints Committee

The complaint mechanism referred to in above point, should be adequate to provide,

where necessary, complaints committee, a special counsellor or other support service,
including the maintenance of confidentiality. The complaints committee should be
headed by a woman and not less than half of its member should be women. Further, to
prevent the possibility of any undue pressure or influence from senior levels, such
complaints committee should involve a third party either Non Governmental
Organisation r other body who is familiar with the issue of sexual harassment. The
complaints committee must make an annual report to the government department
concerned of the complaints and action taken by them. The employers and person in-
charge will also on the compliance with the aforesaid guidelines including on the
reports of the complaints committee to government department.‖

viii. Workers‟ Initiative

Employees should be allowed to raise issues sexual harassment at workers meeting and
in other appropriate forum and it should be affirmatively discussed in employer and
employee meetings.

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ix. Awareness

Awareness of the rights of female employees in this regard should be created in

particular by prominently notifying the guidelines (appropriate legislation when
enacted on the subject) in a suitable manner.

x. Third Party Harassment

Where sexual harassment occurs as a result of an act or omission y any third party or
outsider, the employer and person in-charge will take all steps necessary and reasonable
to assist the affected person in terms of support and preventive action.

xi. Consider Suitable Measure

The Central or State governments are requested to consider adopting suitable measures
including legislation to make sure that the guidelines laid down by this order are also
observed by the employers in private sector.

xii. Guidelines will not Prejudice

These guidelines will not prejudice any rights available under the protection of Human
Rights Acts, 1993.

These guidelines were to be observed by ―the employers or other responsible persons in

workplaces or other institutions so as to ensure the protection of women at workplaces,
violation thereby, their fundamental rights guaranteed by the constitution. The
guidelines were issued under Article 32, so the basic human right of gender equality
and guarantee against sexual harassment and abuse, more particularly against sexual
harassment at workplace.‖

Thus, Apex Court judgement is a landmark for not only recognizing sexual harassment
at workplace under Indian jurisprudence as a dehumanizing crime against women
workers, but also for having laid down detailed guidelines for prevention and
Redressal of women victims against the malaise of sexual harassment. In doing so,
Supreme Court stepped into the terrain of law making. However caution being the
byword, the Supreme Court clarified its intention not to encroach upon the legislative

114
 function and clearly spelt out that the guidelines were to be treated as a declaration of
law in accordance with Article 141 of the Constitution of India until the enactment of
appropriate legislation concerning sexual harassment at workplace.229

In compliance with Vishaka Guidelines a new rule was inserted in the Central Civil
Service Conduct Rules 1964 prohibiting sexual harassment of working women by
government servant and taking of appropriate steps by every government servant in
charge of workplace to prevent sexual harassment of any women at such workplace
(Rule 3 c). Sexual harassment as a misconduct has been inserted in Schedule 1 and 1A
of Industrial Employment (Standing Orders) Central Rules 1964 in 1999.230

4.2.5 Conclusion of Vishaka case

Vishaka is, indeed, unique in many ways. Such judicial articulation paves the path not
only by bringing SH within the framework of human rights but also by shifting the
focus of gender violence from a criminal wrong to a discriminatory conduct that
violates a woman‘s basic human rights. The court not only acted as the active guardian
of fundamental rights but also provided temporary respite to working women. The
guideline extended the responsibility to eliminate discriminatory sexual conduct to a
larger society, in this case, the workplace and obligated the employer to ensure a safe
and healthy environment for women employees. The main aim of the court, while
evolving these guidelines, was to ensure a fair, secure and comfortable work
environment to the extent possible, and also, to eliminate situations where the protector
could abuse his position and turn predator.231

Vishaka‘s case was a quantum leap in expanding the principle of fairness in procedure
after Maneka Gandhi232 where the court, for the first time, has observed that right to
equality would also include the right not to be treated in an arbitrary manner. After
1978, probably it was for the first time in 1997, in Vishaka, the Principle of fair and

229
An Article by Kasturi Gakul, ‗Sexual Harassment of Women at Workplace in India- A legal
Perspective‘, Gauhati Law Times, vol. I, 2013 at p. 19
230
Ibid. At p. 19-20
231
An Article by Ritu Gupta, ―Vishaka and Thereafter: A Critique of the follow Upaction‖ Delhi Law
Review, vol. XXX:2011
232
Maneka Gandhi v. Union of India, AIR 1978 SC 597

115
 just procedure was expanded further to include a gender justice procedure in
furtherance of the constitutional goals of equality.‖

4.2.6 Post Vishaka Scenario

The drive to fill the existing gaps in the judicial framework gains momentum with
every fresh verdict by the Apex Court generating a whole new range of remedial
measures under varying circumstances creating thereby, a sense of security in the other
aggrieved parties placed similarly. Moreover, strenuous attitude of the court is anti
fungal in nature and helps to curb the mushrooming growth of such incidents in future.

The Apex Court went a step ahead and held that, an attempt to molest would amount to
sexual harassment. Outrageous behaviour of the employee is sufficient to constitute
sexual harassment and actual assault or touch is not necessary to prove it. 233 In this case
AK Chopra, an Employee of Apparel Export Promotion Council was charged with
sexually harassing a woman employee working as a clerk cum typist. The clerk had
complained that the accused had tried to physically molest her in the office and also
tried to sit too closer to her and advertently. Despite her repeated protests, he continued
to repeat his offensive and unwelcome overtures.234‖

The harassed employee complained to her employers about the demeaning behaviour of
her superior. ―Following her complaint, the company suspended the alleged harasser
and initiated disciplinary proceedings against him as per the guidelines laid down by
the Supreme Court. The Disciplinary committee held him guilty of sexual harassment
and removed him from service.‖

The parties aggrieved by the above order, he appealed to the Staff Committee but
before it could take any decision, ―he managed to obtain the unconfirmed minutes of
the staff committee, few of which purportedly favoured him on certain grounds. He,
then, approached the high court without any delay with prayer that company be
directed to implement those minutes. The High Court arrived at a conclusion the
accused only made an attempt to molest the clerk without actually doing so and

233
Apparel Export Promotion Council v. A. K. Chopra, AIR 1999 SC 625.
234
Ibid.

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therefore, he could not be removed from the service. Deciding in his favour while
allowing the petition, the high court directed the company to implement the decision of
the staff committee as per its unconfirmed minutes. The company filed an appeal with
the Supreme Court. Criticizing the judgment of the high court, the Supreme Court held
that the high court erred while deciding in favour of the alleged harasser and the court
should not ordinarily interfere in the findings of the disciplinary proceedings unless: (a)
the finding were based on evidence or (b) the finding were legally tenable. In this case,
as the findings were based on evidence and were legally tenable, therefore, the High
Court should not have interfered.‖

The Apex Court of India applied the law laid down in Vishaka‘s case for the first time
in this case and upheld the dismissal of a superior officer of the Delhi based Apparel
Export Promotion Council who was found guilty of sexual harassment of a subordinate
female employee at the work place on the ground that it violated the fundamental rights
guaranteed under article 21 of the constitution of India. The Supreme Court made it
clear that sexual harassment is gender discrimination and any act or attempt of
molestation by a superior would constitute sexual harassment.‖

The Supreme Court in this case held that, any action or gesture, whether directly or by
implication, aims at or has the tendency to outrage the modesty of a female employee,
must fall under the general concept of definition of sexual harassment. Each incident of
sexual harassment, at the place of work, results in violation of Fundamental Right to
Gender Equality and the Right to Life and Liberty the most two precious Fundamental
Rights Guaranteed by the constitution of India. As early as in 1993 at the ILO Seminar
held at Manila, it was recognized that sexual harassment at workplace was a form of
gender discrimination against women.‖

4.2.7 Awarding Compensation to Victims

In Radha Bai v Union Terriority of Pondicherry, 235 Ms. Radha Bai was Assistant
Director of Social Welfare Department, Pondicherry. A protective and shelter home for
women are stetted under suppression of immoral traffic act was started at Reddiar

235
AIR 1995 SC 1476; 1995 (4) SCC 141; 1995 (4) JT 34; 1995 Scale 842

117
Playam by the social welfare Directorate. Radha Bai received a report that the above
institution was being misused by the minister for social welfare with the connivance of
the superintendent for illegal and immoral purposes. She reprimanded the
Superintendent which infuriated the minister. She was transferred from Pondicherry to
Karaikkal. Subsequently the minister for social welfare became the Home Minister and
continued to use women institution for his immoral activities with the help of some
officials.

Ms. Radha Bai made representation to the Government of Pondicherry alleging attempt
to molest her by some officials in connivance with Home Minister, Pondicherry. Then
she was levelled as a lunatic and false criminal cases were started against her. She was
suspended from service. She made a representation to the Governor of Pondicherry
with a request to make an enquiry into her allegations contained in the complaint filed
by her. No action was taken on her representation. She moved to Madras High Court,
but her application was dismissed. Then, she moved to the Supreme Court which
directed the Governor to take necessary action. Then the Governor ordered an enquiry
by a judicial officer of the rank of district judge to inquire into the allegations made by
Radha Bai. The order of the Governor was not given effect by the administration again
Ms. Radha Bai moved Madras High Court for an appropriate order under writ
jurisdiction. The petition was dismissed by the Madras High Court. Then she preferred
special leave petition before Supreme Court. On the basis of instruction of the Supreme
Court, the chief Secretary of Pondicherry issued necessary order of inquiry by district
judge of Pondicherry. Unfortunately, a superfluous and evasive inquiry into the
allegation made by Ms. Radha Bai, the Supreme Court discussed the materials placed
before the district judge, and came to the conclusion that Ms. Radha Bai was
unnecessarily harassed by the administration and the minister-in-charge of home
affairs.

It is held by the Supreme Court that there was inaction and attempt to cover up the
entire pisode by the Govt. Of Pondicherry and that Ms. Radha Bai was removed from
service 17 years ago for no laches on her part and she was driven from pillar to post to

118
seek redress for the wrong done to her. Considering the totality of the circumstances
and non-excusable lapses of the administration, and in doing complete justice in the a
matter, the Supreme Court declared that Ms. Radha Bai would be entitled to full
pension and other retirement benefits. The apex court awarded a lumpsum
compensation of Rs. 3 lakhs for the loss of reputation and honour of Ms. Radha Bai and
for the agony she had to suffer in the long battle against the Government of
Pondicherry and the then Home Minister of Pondicherry within one month from the
date of the order. Thus we can draw an inference that Supreme Court is taking these
matters seriously. In this case, at last, Ms. Radha Bai had pyrrhic victory for making
allegations against Home Minister, Pondicherry.

In another case, 236 in Sept., 1989, Juli John, a research scholar at the Centre for
Advance Studies, University of Madras was assaulted by her supervisor, Dr. N. Raman,
in the course of a meeting to discuss her dissertation. ―Dissatisfied with the enquiry
conducted by the University, she lodged a complaint in the police station in December.
The trial court acquitted Raman as the offence was not proved beyond reasonable
doubt. When the matter came up in the Supreme Court, nine years later, the Hon‘ble
Judge was convinced of the genuineness of her complaint and observed that there was
ample evidence from the side of supervisor himself in the form of various
recommendations etc. to prove Juli‘s competence.‖

Yet he said ―though the appreciation of evidence is not proper in this case, since nearly
9 years have elapsed after the occurrence and in the meantime the petitioner got
married and settled at Kerala after finishing her studies, I don‘t think it appropriate to
be remanding the matter to the trial court to consider afresh. Under these
circumstances, I do not deem it fit to set aside the impugned judgement and to reward
the matter, even though the reasoning for acquittal is not correct.‖

Vulnerability of women students in science faculties is considerably greater than in the

humanities and arts as there is a complete dependence of the students on the supervisor.
Supervisors are known to indefinitely prolong the period of doctoral research of women

236
1998 (CRZ) GJX 0817 MAD

119
students while extracting personal and secretarial services from them. Research
guidance is denied to meritorious girl students on the assumption that they will marry
and leave. This was good occasion for court to formulate some guidelines. The
assumption in this decision is that the passage of time and that the fact that Sexual
Harassment did not impede Juli‘s ―marriage and settling down‖, both mitigating and
offence that is itself innocuous.237

4.2.8 Moving the Immoveables: Nalini and Prakriti

Nalini Netto, ―a senior IAS officer in Kerala was assaulted by the then Minister for
Transport, Neelalohitadasan Nadar in his office in the Legislative Assembly premises
in the course of an official meeting on December 21, 1999.‖ She extricated herself and
informed her husband, also an IAS officer and some colleagues. But she did not lodge a
formal complaint as she felt that such an action may tarnish the image of the
government as a whole. Her colleagues were unanimous in advising her on the similar
lines of maintaining silence.

When, after one months, the stress and mental agony became virtually unbearable, she
sought the intervention of the Chief Minister. ―However, she did not request for the
prosecution of the Minister but simply asked for a different working environment and
that some action might be taken to protect the modesty of woman officers.‖

Immediately after this Netto‘s case came to light, Prakriti Srivastava, the Divisional
Forest Officer, Nilmbur, Kerala lodged a complaint on 11th April, 2001, ―alleging
sexual harassment by the same minister in February 1998. Instead of lodging a formal
complaint, she simply reported the incident to the city police commissioner, a woman
herself, and the chairperson of the Women‘s commission. She felt too insecure to file a
written complaint as she was not well versed with the social ethos of the state.
Moreover, she got to know of the ignominy suffered by few other women in certain
previous instances of sexual harassment through media reports.‖

237
Workshop on Sexual Harassment at Workplace, Organized by Haryana Police; 17 Aug. 2002, pp. 19-
20

120
In the course of the investigations of the case, Srivastva was summoned to depose be
fire the Additional Director General of Police (ADGP). ―After her disposition,
however, she started receiving constant threats of grave nature from that minister which
ultimately became unbearable and intolerable. She was left with no option but to file a
written complaint only under Section 354 Indian Penal Code demanding legal remedy
for the offence of sexual harassment so committed. The government appointed justice
Sashidharan committee without having any legitimacy as the police enquiry was
already going on and it amounted to a parallel enquiry in the same matter.‖ All norms
were violated grossly while constituting the committee as a sitting male judge, justice
Sashidharan, was appointed as its chairman.

This committee victimized Nalini consistently on one pretext or the other and insisted
on holding a public trial, though as per Vishaka judgement it is to have an in-camera
hearing. Further, even the instruction of the Vanitha commission that a public trial
should not be held in such cases, was completely ignored by the committee. The then
chief justice went to the extent of comparing her case with that of Monica Lewinsky
and suggested that, like her, she should face a public trial. ―The crime branch in the
enquiry relating to Nalini Netto summoned Parkariti for evidence. Her case was, suo
motu, taken up by the human rights commission. Though the former minister quit his
ministerial post in the wake of the charges of sexual harassment, he continued to be a
member of the legislative assembly. Despite his tarnished reputation, his party fielded
him as a candidate in elections, proving that political parties have a callous indifference
to the candidates‘ morality or reputation or even criminality.

The first class magistrate sentenced Nadar to three months imprisonment and a fine of
50,000 rupees. ―However, the additional sessions court (Fast Track) in 2008 acquitted
him of charges of harassment and sexual assault. In Prakriti‘s case Nadar was
sentenced to one-year jail by the trial court and the appellate court at Kozhikode upheld
the conviction.‖The case is before the High Court now.238

238
Supra no. 217 at page 54.

121
PE Usha, a woman activist at Calicut University, suffered harassment at the hands of a
bus passenger in December 1999. Though she succeeded in taking the bus to a police
station and getting the criminal arrested, police action was tardy. At her workplace, one
of the male colleagues, created a hostile work environment by spreading word that she
was a consenting party to a public sexual act and not a victim of assault.

Despite an enquiry report by the Kerala State Women‘s Commission establishing his
guilt, university committee concluded that there was no evidence, on record, of sexual
harassment by the accused as it did not fit in stereotypical forms of sexual harassment
as per Vishaka‘s judgement. The most interesting aspect of the whole episode was that
the head of the department, in which her tormentor worked, headed that university
committee. From April 18, 2002, Usha launched an indefinite fast in front of the
university. Her oppressor also launched a counter stir. It has been a decade long
struggle of a feminist against sexual harassment.

Showcase of Apathy of the System

These cases, not only, reflect the insensitivity and apathy of the society towards such
incidents; they also become a show case of the gravity of humiliations and insults borne
by the victim in order to convince the society without at being at fault on her own.

The cases of Rupan Bajaj, Nalini Netto and Prakriti Srivastva are particularly
significant because they become the showcase of the vivid facts and factors involved
including their class location i.e. an ‗enlightened‘ upper middle class, the bureaucracy
and general apathy of the system towards such incidents. These cases also highlight
that the boundaries of class locations, in such instances, have suddenly become fluid.
There is no more a distinction between the hallowed environs of a high level official
party, a ministerial meeting, the corridors of legislative assembly and a daily journey in
public transport. There is also an obliteration of the distinction between a ‗Super Cop‘,
a minister and the ―pathological bottom pinchers,‖ ‗riff-raff‘, ―sexual pervert‖, the
nameless and faceless man on the street.

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4.2.9 Follow up of Vishaka‟s Case by Various High Courts

The court decisions in the Vishaka and AK Chopra case were followed by various High
Courts in a number of cases on this sensitive issue.

Shehnaz case:

It was in Saudi Arabian Airlines, Mumbai v. Shehnaz Mudbhalkal239 probably for the
first time that any High Court applied the court‘s guidelines with regard to sexual
harassment at workplace.

Shehnaz Mudbhalkal story is not unusual. She became the first employee to win a legal
battle in a labour court against her employers on the grounds of sexual harassments and
has thereby created a legal landmark of sorts. Shehnaz‘s services with Saudi Arabian
Airlines were terminated because she did not give in to the sexual demands made by
her superior, Abdul Ellah Bahrani. She has been awarded full back wages and
continuity of service with effect from July 25, 1985.

Shehnaz joined the services of Saudi Arabian Airlines (SAA) on November 16, 1978 as
secretary to the Station Manager. She received the letters of appreciation from the
management and was awarded a merit certificate and a merit salary equal to 5 percent
of her wages. She had trained various persons in the duties of Customer Service Agent.
In July 1983, Abdul E. Bahrani took over as station manager and Shehnaz‘s nightmare
began. He asked her out of lunch and dinner, he made suggestive remarks, he asked her
which method of contraception she preferred. On one occasion he even made physical
advances at her at a colleague‘s party from which she could escape with the help of
some friends. She even approached the country manager with her grievance but was
informed not to put anything in writing as this would harm both her career as well as
the company‘s image. Bahrani embarked on a predictably vindictive course. He used
various methods of humiliation repeatedly threatening her with termination and even
threatened to jeopardise her husband‘s job in Saudi Arabia if she did not submit to his
demands. Matters come a head when vacancy for the Lead Customer Service Agent

239
1999, 2 LLJ 109 (Bom)

123
arose. Fearing Bahranis vindictive response, she made a representation that in view of
her seniority and past record she would be given the post. Bahrani telephoned her
residence at 12 midnight and asked her to come over to discuss the representation. She
naturally refused. The victimisation intensified from this point onwards.

On January 24, 1985 when she reported back from leave she was not permitted to sign
the muster. This continued for the next three days up to January 28. He forced her to
tender a letter of apology with a promise not to use it. For her job she wrote down a
letter what was dictated to her and this letter was later used as a ruse to issue a
suspension order against her. The same letter years later convinced the labour court that
Brahani was indeed victimising her.

Subsequently he intensified the pressure by issuing a suspension order for four days
from February 6. When she resumed work, she declared that her suspension was illegal
and she would complain to authorities in Jeddah. ―This is when my fate was sealed‖,
says Shehnaz.

In July 1985 she was assigned very typing work as a result of which she developed
severe chest pain. She was compelled to proceed on a month‘s sick leave when she
joined her husband in Jeddah. During her stay there she approached the company head
quarters and made a formal complaint against him. The Executive vice President
assured her that necessary steps would be taken and that should resume work. But she
was not allowed to work and was advised to stand by at home. A letter of termination
was sent to her. The order of termination was pre-dated to 24 July, 1985 to escape from
the consequence of the directions received from the Jeddah office in the matter.

Brahani vendetta was not yet complete. The very next day he despatched letters to all
the Airline offices in Bombay informing them that she was a terminated employee, thus
ensuring that she would find it impossible to obtain another job.

She challenged the termination order on the ground that it was served since she had
refused the advances of her boss. In 1997, the labour court directed that she be
reinstated with full back wages and continuity of service and the Mumbai High court
upheld the directions.

124
On Feb., 5, 1999, Justice B.N. Srikrishna commented on the actions of SAA as
operation scuttle and observed, ―the conduct of the boss would squarely fit in with the
concept of sexual harassment as defined by the Supreme Court.‖ Legal and Women
activists hailed the courts verdict, noting that this was the first time a high court had
applied the Sc guidelines. ―The judgment is significant‖, pointed out legal activist
Flavia Agnes. ―most women don‘t come forward because they feel that nothing will
happen. This may inspire more women to take a stand when they are being forced to
compromise.‖

But her tryst with the destiny did not end here. On joining SAA on February 24, 1999,
she was immediately transferred to Chennai. ―She then filed or an injunction on the
transfer of a suit, where she claimed damages of around Rupees one crore for the
sexual harassment and emotional pain and suffering caused to her. It was in response to
this suit, that on April 8, 1999 Justice AP Shah of the Mumbai High Court restrained
the company from transferring her and directed that she be allowed to ‗resume her
duties at the Sahara International Airport with her salary and all other dues. Justice R.
C. Kochar held that the company‘s actions were of malafide intent and directed that she
be reinstated on January 3, 2000 with full salaries and back wages. Her case was further
complicated by the fact that her then- husband, also an employee with SAA was
threatened with retrenchment if she took an aggressive stand against the airline. Her
decision, not to put an end this battle, led to estrangement with her husband which was
nothing less than a live nightmare.‖

She said, after she emerged victorious, ―Working women have to deal with sexual
innuendoes and the passes all the time. We take it in our stride. its only when one is
pushed beyond excusable limits that we knock the court‘s door. After that you have to
stick it out, even if there are times you want to scream with frustration.‖

Thus, it is clear here that this judgment illustrates that how a typical case of sexual
harassment may include both quid-pro-quo and hostile working environment elements.

Legally, speaking, she won but lost on personal front due to the apathy of the system
towards such matters.

125
In an another case, Vasantha R. v. Union of India,240 the Madras High Court issued a
number of guidelines and welfare measures for female workers who worked during
night shifts such as duty of employer, to prevent/deter the commission of acts of sexual
harassment and to provide procedure for its resolution, maintaining of complaints
committee in the factory, proper lighting facilities in the surroundings where women
workers move about in the factory, women workers employed to work in a batch of not
less than ten and total number of women workers employed in a night shift shall not
less than two third of the total strength, sufficient women security during shift, separate
transportation facility for women workers, not less than one third of strength of
supervisors during night shifts shall be women, boarding and lodging arrangements for
women workers to be exclusively under women wardens, monthly meeting with
representatives, etc.

A Division Bench of the Allahabad high court in one such case held that ―the conduct
of the petitioner, including disgusting immoral remarks, was deplorable and could not
be condoned and therefore, the sexual harassment committee had acted leniently by
merely ordering compulsory retirement instead of dismissal, which he deserved. 241 The
Madras high court upheld the punishment of dismissal awarded in a case of
misbehaviour, with a superior lady officer by the petitioner.242‖

In Samridhi Devi v. Union of India, 243 the Delhi High Court held that in a case of
sexual harassment complaints, by their very nature, and the public interest element
involved, the employer is under a duty to ensure that the workplace is kept safe, and
free from sexual harassment. The court observed that if action is not taken, or taken
belatedly, or taken in a casual or inappropriate manner, the confidence and the morale
of female employees as a class is undermined. The court also made reference to
Vishaka.244

240
2001, II LLJ 843 Madras
241
R.B.S. Chauhan v. Reserve Bank of India, 2003, 2 LLJ 634
242
Jawahar Khalifulla v. Deputy Commissioner of Labour, 2002, 3 LLN 1090 (per Y. Venkatachalam J.)
243
2005, DLT 284
244
Vishaka v. State of Rajasthan, AIR 1997 SC 3011

126
In Rinchu v. Govt. Of NCT of Delhi & Ors.,245 the Delhi High Court held that in the
present times, where women are increasingly being deployed in carrying out diverse
assignments, the employer is under an obligation to provide safe working environment
and directed the grant of Rs. 7.5 lakhs as compensation to the victimized nurse.

In U.S. Verma, Principal and Delhi Public School Society v. National Commission For
women & Ors., 163 (2009) DLT 557 ordered the Delhi Public School (DPS) Society to
compensate two of its teachers and a former receptionist who had been alleged sexual
harassment by the Principal, U.S. Verma of Faridabad branch of DPS, with Rs. 2.5
lakhs.

A recent decision of the Delhi High Court 246 examined the victimisation of a lady
employed by a government medical college, who had complained about sexual
harassment by a senior doctor employed by the same hospital. The court found that
there was serious contravention of Central Civil Services (Conduct) Rules, 1964 as well
as the decision of the Supreme Court in Vishaka. Neither the composition of the
committee, nor the procedure followed by it, conformed to the law. It also found that
there was no justification for transferring the complainant out of her place of work,
while the respondent- harasser continued as the head of the department. The court drew
attention to guideline 4 of the Vishaka guidelines which requires that employer should
ensure that victims of sexual harassment at the workplace are not victimised or
discriminated against while dealing with complaints of sexual harassment, and that it is
the victim who must have the ―option‖ to seek transfer of the perpetrator or their own
transfer.

Again the issue is whether sexual harassment at workplace affects only private rights or
a collective issue? In Regional Manager, Syndicate Bank v. General Secretary, 247 a
disciplinary action was initiated against a bank employee for abusing and using
―sexually colourable words‖ with a lady cashier. The punishment of compulsory
retirement awarded by the bank management was set aside by the Labour tribunal,

245
MANU/DE/3718/2006
246
Punita K. Sodhi v. Union of India, 2011 I LLJ 371 Del
247
ILR 2011, 4 Ker 144

127
recording a finding which said that, ―the act was not an act prejudicial to the interests
of the Bank but only affected the private rights of the lady cashier.”248 The Kerla High
Court overturned the Tribunal‘s decision and restored the punishment, observing:

“the act of abusing the lady cashier (superior officer of the delinquent employee)in the
presence of other co-workers in filthy, vulgar language, with „sexually coloured words‟
has been held as established by the management as alleged in the charge sheet. Even
after arriving at such a finding, when the tribunal says that the charge is vitiated and
unsustainable; that the said act in not an act prejudicial to the interests of the bank and
that it only affects the „private rights‟ of the lady cashier, it cannot but be said that the
verdict passed by the Tribunal is per se wrong and perverse in all respects.”249

It follows that a case of sexual harassment at the workplace is not one which affects
just the ‗private rights‘ of a petitioner. It creates a hostile work environment affecting
the interests of every employee in an establishment. Therefore, sexual harassment at the
workplace can be construed as an unfair labour practice prejudicial to the interests of
every worker in a given establishment and thus, an industrial dispute can be raised by
the affected workers in such case.250

Non provision of charge sheet does not always vitiate the inquiry. In Ajay Bhatnagar v.
Presiding Officer,251 the petitioner was alleged to have engaged in acts amounting to
sexual harassment in the workplace and a complaints Committee in accordance with
Vishaka was set up. The committee gave its findings that the allegations of harassment
were proved and on this basis, the disciplinary authority dismissed the petitioner from
services. Subsequently, an industrial dispute was raised regarding the fairness of
dismissal, on the sole ground that the petitioner was not presented with the charge-
sheet. The matter finally came before the Delhi High Court, which observed that:

“having held that the report of the complaints Committee was vitiated for want of
principles of natural justice, the learned Trial Court permitted the Respondent to lead

248
Ex. P1 Award passed by the Industrial Tribunal Kollam at para 6.
249
Ibid at para 20.
250
Indira Jaisingh, Sexual harassrnent at workplace 169 (Universal Law Publishing, second ed. ) 2014.
251
2012 LLR 1181

128
evidence. The witnesses of the management i.e., both the Chairperson of the Committee
and the complainant respectively, were duly cross- examined by the petitioner. Thus,
there is no illegality in the order of the learned trial court. Once the trial court permits
recording of evidence, no charge-sheet is required to be issued to the petitioner. The
Tribunals are not bound by the strict rules of evidence and they have to perform the
functions following the principles of the natural justice.”252

The court accordingly upheld the petitioner‘s dismissal.

4.2.10 Supreme Court Latest Decision

In Aman Kumar v. State of Haryana,253 the Supreme Court described what amounts to
an offence under section 354 Indian Penal Code as follows:

“Essential ingredients of the offence punishable under Section 354 Indian Penal Code
are that the person assaulted must be a woman, and the accused must have used
criminal force on her intending thereby to outrage her modesty. What constitutes an
outrage to female modesty is nowhere defined. The essence of a woman‟s modesty is
her sex. The culpable intention of the accused is the crux of the matter. The reaction of
the woman is very relevant, but its absence is not always decisive. Modesty in this
section is an attribute associated with female human beings as a class. It is a virtue
which attaches to a female owing to her sex. The act of pulling a woman, removing her
dress coupled with a request for sexual intercourse, is such as would be an outrage to
the modesty of a woman, and knowledge, that modesty is likely to be outraged, is
sufficient to constitute the offence without any deliberate intention having such outrage
alone for its object.”254

In a case where a Bhil tribal woman was paraded naked by upper caste men, the
Supreme Court upheld the conviction of the accused under Section 452, 354, 323, 506
and 34 Indian Penal Code. Unfortunately, the court was constrained not to interfere
with the acquittal of the accused by the high court under Section 3 of the Scheduled

252
Ibid at para 5
253
(2004) 4 SSC 379
254
Ibid. at para 13

129
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, in the absence of an
appeal by the state, a failure deprecated by the court.255

The range of actions covered by sections 354 and 509 of the IPC

Having the intention to insult/outrage the modesty of a woman is an essential element

of both the sections. Intention, as in all criminal offences, has to be proven from the
acts of the accused and the attendant facts and circumstances.

The following acts have been held by different courts to be covered by Section 509:

(1) Sending a letter containing indecent propositions to a woman comes within

the word ―gesture‖ which refers not merely to body signs but also
conveying his attitude,256 and is also covered within the words ―exhibits any
object‖,257
(2) Following a woman in public transport such as bus, tram or local train,
laughing and grinning at her, standing in her way and shouting her name,258
(3) Creating any undue obstruction or causing serious inconvenience to a
woman in her public life;
(4) Belittling or harassing her may be covered as an intrusion of her privacy and
thereby an insult to her modesty under Section 509 or 354 IPC;
(5) Entering into a woman‘s work-place or work-station with an intention to
commit an offence or intimidate, assault or annoy her, which would not only
be covered under the above-mentioned sections but may also amount to
criminal trespass.259

Thus, any situation of sexual harassment, including situations where the harassment is a
manifestation of discriminatory official or professional practices or usage may also be
covered under these provisions. The act of the offender must be capable of shocking the
sense of decency of a woman.
255
Kailash v. State of Maharashtra, (2011) 1 SCC (Cri) 401
256
M.M. Haris V. State of Kerala, 2005 Cr. LJ 3314 (Ker)
257
Emperor v. Tarak Das Gupta, AIR 1926 Bom 159
258
Mohammad Kasam Chisty, 1911 Crl. Appeal No. 454 of 1910, decided on 18 th January, 1911, per
Chandavarkar and Heaton JJ.
259
Section 441, IPC

130
In D. S. Greval v. Vimmi Joshi,260 in this case respondent, a female was employed as a
teacher in any Army Public School. She was subsequently appointed as Principal.
Hitendra Bahadur, Vice Chairman of the school, wrote a letter to the respondent
inviting to help her, ―may I extend my hands towards you and hold your hands tightly
and ask you to lean on my shoulder whenever you need me. It will be greater pleasure.‖

It was stated that it is a matter of great regret that army which is disciplined
organisation failed to provide a complaint mechanism and ignored the decision of this
court which was bound to be given effect to in terms of Article 141 of the Indian
Constitution.

The Supreme Court once again reiterated its concurrence with the Vishaka‘s judgment.
Court came down heavily on the army authorities for not constituting a complaints
committee. It dismissed the appeal and directed that high court may appoint a three
member committee headed by a lady and in the event of its findings that writ petitioner
was subjected to sexual harassment, the court said that a report may be sent to army
authorities for initiation of a disciplinary action against the appellants on the basis
thereof court directed the management to bear all the costs of the respondent as it found
management to be guilty of breaching Vishaka guidelines by not constituting a
complaints committee. Courts expressed its regret on not having legislation in the
concerned field.261

Medha kotwal lele‟s case

In another case, letter written by doctor Medha Kotwal of Aalochan on Sexual

harassment by a professor, was considered sympathetically and converted into a writ
petition by the Supreme Court.262

Directions issued by Supreme Court in this case:263

260
2009, 2 SCC 217
261
Ibid at 218
262
Medha Kotwal Lele and others v. Union of India and others; 2004 (5), 2013 , 1 SCC 297
263
Ibid.

131
―44. In what we have discussed above, we are of the considered view that guidelines in
Vishaka should not remain symbolic and the following further direction are necessary
until legislative enactment on the subject is in place.

44.1. The states and union territories which have not yet carried out adequate and
appropriate amendments in their respective civil services conduct rules (by whatever
names theses rules are called) shall do so within months form today by providing that
the report of the complainant committee shall be deemed to be an inquiry report in a
disciplinary action under each civil services conduct rules. In other words, the
disciplinary authority shall treat the report/findings etc. of the complaints committee as
the findings in a disciplinary inquiry against the delinquent employee and shall act on
such report accordingly .the findings and the report of the complaints committee shall
not be treated as a mere preliminary investigation or inquiry leading to a disciplinary
action but shall be treated as a finding/ report in an inquiry into the misconduct of the
delinquent.

44.2. The states and union territories which have not carried out amendments in the
Industrial Employment (Standing Orders) rules shall now carry out amendments on the
same lines, as noted above in clause (i) within two months;

44.3. The states and union territories shall form adequate number of complaints
committees so as to ensure that they function at taluka level, district level and state
level. Those states and /or union territories which have formed only one committee for
the entire state shall now form adequate number of complaints committees within two
months from today .each of such complaints committees shall be headed by a women
and as far as possible in such committees an independent member shall be associated .

44.4 The state functionaries and private and public sector undertakings/organisation
/bodies/institutions etc., shall put in place sufficient mechanism to ensure full
implementation of the vishaka guidelines and further provide that if the alleged
harasser is found guilty, the complainant- victim is not forced to work with/under such
harasser and where appropriate and possible the alleged harasser should be transferred.

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Further provision should be made that harassment and intimidation of witnesses and the
complainants shall be met with severe disciplinary action.

44.5. The Bar Council of India shall insure that all bar association in the country and
person registered with the state bar councils follow the vishaka guideline. Similarly,
Medical Council of India, Council of Architecture, Institute of Chartered Account,
Institute of company secretaries and other statutory institute shall ensure that
organisations, bodies, associations, institutions and persons registered/ affiliated with
them follow the guidelines laid down by the Vishaka to achieve this necessary
instructions / circulars shall be issued by all the statutory bodies such as bar council of
India, Medical council of India, council of architecture, institute of company secretaries
within two months from today. On receipts of any sexual harassment at any of the
places referred to above the same shall be dealt with by the statutory bodies in
accordance with the Vishaka guidelines in the present order.

45. We are of view that if there is any non-adherence to the Vishaka guidelines, orders
of this court following Vishaka and the above directions, it will be open to the
aggrieved persons to approach the respective high courts. The High Court of such state
would be in a better position to effectively consider the grievance raised in the
regard.‖264‖

More recently, in a case265 of eve- teasing prosecuted under the Tamilnadu Prohibition
of Eve Teasing Act, 1998, the Supreme Court noted with the disapproval of the fact
that Tamilnadu is the only state in the country with a legislation proscribing eve-
teasing. The court observed that sexual harassment is a violation of the fundamental
rights guaranteed under Articles 14, 15 and 21 of the Constitution, and in the absence
of effective legislation to control as Section 294 or Section 509 of the Indian Penal
Code. 266 Taking note of the fact that a special law on sexual harassment at the

264
Ibid.
265
Dy. Inspector General of Police v. Samuthiram, 2013 1 SCC 598.
266
Ibid at para 26

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workplace267 was still pending before parliament at the time, and recording that urgent
measures are required to curtail eve-teasing, it issued a series of the directions in the
public interest, which are binding law under Article 141 of the Constitution.

Directions issued by the Supreme Court in Dy. Inspector General of Police v.

Samuthiram:268

(1) All the state governments and union territories are directed to depute plain
clothed female police officers in the precincts of bus-stands and stops,
railway stations, metro stations, cinema theatres, shopping malls, parks,
beaches, public service vehicles, places of workshop etc, so as to monitor
and supervise incidents of eve-teasing.
(2) There will be a further direction to the state government and union
territories to install CCTV in strategic positions which itself would be a
deterrent and if detected, the offender could be caught.
(3) Persons in-charge of the educational institutions, places of worship, cinema
theatres, railway stations, bus-stands have to take steps as they deem fit tho
prevent eve-teasing, within their precincts and, on a complaint being made,
they must pass on the information to the nearest police station or the
Women‘s Help Centre.
(4) Where any incident of eve-teasing is committed in a public service vehicle
either by the passengers or the persons in charge of the vehicle, the crew of
such vehicle shall, on a complaint made by the aggrieved person, take such
vehicle to the nearest police station and give information to the police.
Failure to do so should lead to cancellation of the permit to ply.
(5) State governments and union territories are directed to establish women‘
helpline in various cities and towns, so as to curb eve-teasing within three
months.

267
The Court referred to the Sexual Harassment at Workplace Bill, 2010, which was a precursor to the
present 2013 Act.
268
Supra n. 262 at para 35

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 (6) Suitable boards cautioning such act of eve-teasing be exhibited in all public
places including precincts of educational institutions, bus stands, railway
stations, cinema theatres, parties, beaches, public service vehicles, places of
worship etc.
(7) Responsibility is also on the passers-by and on noticing such incident, they
should also report the same to the nearest police station or to women
helpline to save the victims form such crimes.
(8) The state governments and union territories of India would take adequate
and effective measures by issuing suitable instructions to the concerned
authorities including the district collectors and the district superintendent of
police so as to take effective and proper measures to curb such incidents of
eve-teasing.‖

4.2.11 Latest Incidents Relating to Sexual Harassment

Gopal Kanda Case

In 2012, Mr. Gopal Kanda( the former minister of Haryana) and his aide, Ms. Aruna
Chedda have been accused of ‗harassing‘, conspiring, intimidating and creating an
atmosphere of terror and continuous pursuit in the mind of 23 years old Air Hostess,
Geetika Sharma who committed suicide on August 5, 2012. She alleged that he
sexually harassed her also. The latest development in this case is that, both said accused
have now been charge sheeted under Sections 306, 467, 201 of Indian Penal Code
along with section 66 of the Information Technology Act.

Status : the case is being tried in the Delhi High Court.

Tarun Tejpal- Tehelka case

Tarun Tejpal has been allegedly accused269 of sexually assaulting a female journalist
more than once at a function in Goa and the story thereof came into limelight because
of certain e-mails that got leaked somehow. The irony stands in the point that the
respondent in this case happens to be father of the complainant‘s friend and he was
269
Available at http://ibnlive.in.com/news/the-complete-email-trail-of-the-tarun-tejpal-sexual-assault-
case/436601-3.html last visited on 10.12.15.

135
seen as a paternal figure who had worked with father of the complainant. The
respondent is accused of having violated his position of trust in relation to the
complainant and what is more unfortunate is that the respondent journalist himself had
launched crusades against the sexual harassment of women by way of his hold over the
Art of Journalism. It was an occasion for the host of Telhaka‘s think festival with an
intellectual gathering where the alleged most un intellectual cause of action took birth
and culminated in the slapping of serious charges upon the Tejpal which do find
mention in Sections 341270, 342271, 354A272 and 375273 of the Indian Penal Code. The
alleged sexual harassment of the lady by the respondent, if proved true, is definitely no
case to be treated with any sort of lenient action but here the slapping of charges of
‗rape‘ and the same being upheld by a Goa Court274 demanded an introspection of the
over enthusiastic Legislature275 which has very actively modified the basic structure of
the definition of rape earlier to be found in Section 375 of the Indian Penal Code, 1860.
Tejpal spent six months in jail before the Supreme Court granted bail.

The trial in this case is yet to begin.

Retired Judge AK Ganguly case

66-year-old former judge AK Ganguly was accused of sexually harassing a former

intern. Last year in January 2014, the Supreme Court also dismissed a plea seeking to
quash the complaint of sexual harassment against the retired judge Ganguly. With
intense political pressure, Ganguly had to eventually step down as the West Bengal
Human Rights Commission. However, Ganguly had denied the allegations, and
challenged the committee's findings in a letter to the then Chief Justice of India, P
Sathasivam.

270
Wrongful Restraint(punishment)
271
Wrongful Confinement (punishment)
272
Sexual Harassment under the Criminal Amendment Act, 2013
273
Rape
274
Available at http://www.ndtv.com/article/india/tehelka-case-prima-facie-evidence-to-show-rape-said-
judges-as-she-rejected-tarun-tejpal-s-bail-plea-452954 last visited on 10-03-2017
275
The Criminal Law (Amendment) Act, 2013 with effect from 03.02.2013 available at
http://indiacode.nic.in/acts-in-pdf/132013.

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Madhya Pradesh High Court case

The Supreme Court, in a landmark judgment on December 18, 2014 — Additional

District and Sessions Judge ‗X‘ versus Registrar General, High Court of Madhya
Pradesh pronounced how sexual harassment cases involving a higher judiciary judge
should be handled. The judgment, contrary to the law of the land, is a clear case of
judicial overreach. The Supreme Court has the power to provide what is known as
―equitable relief‖, when a mere legal remedy is inadequate. But that cannot be against
the express provision of an Act, especially when that remedy bestows upon the
judiciary immunity from the law of the land.

The victim in the case was a district and sessions judge since August 2011. In July
2014, she was transferred to a remote location. As her daughter had board examinations
that year, she sought an extension. Her request was rejected and she resigned on July
15, 2014. On August 1, she sent a representation to, among others, the Chief Justice of
India, levelling allegations of sexual harassment against a male judge of the Madhya
Pradesh high court who had administrative control over her court.

The sexual harassment charges alleged were indeed jaw-dropping. It was imputed that,
in December 2013, the accused judge asked her to do an item number at a function,
which she refused. Another allegation was that at a function in February 2014, the
accused judge made sexist remarks and put his hand on her back. According to the
accused judge, the allegations were fabricated. He asserted that the functions were
video graphed and her demeanour in those videos does not indicate distress.

The victim alleged that the accused judge abused his administrative powers to harass
her. She was allegedly subjected to unwarranted inspections by her superiors. Her
official comforts were stripped wherever possible and, she alleges, her transfer was the
culmination of this victimisation. The high court and the accused judge denied all the
allegations. It is their version that her transfer was made by a group of judges and
approved by the chief justice of the high court.

Upon receiving her complaint, the chief justice of the Madhya Pradesh High court
appointed a two-judge inquiry committee. The petitioner challenged this committee,

137
claiming it to be against the ―in-house procedure‖ prescribed by the Supreme Court to
investigate and address all allegations against judges of higher judiciary. Her argument
was upheld by the Supreme Court on December 18. In the judgment, it was held that
the ―in-house procedure‖ was binding even for inquiring sexual harassment allegations
against a high court or Supreme Court judge. Such an inquiry, if against a high court
judge, may have up to seven steps.

First, the chief justice of the appropriate high court shall personally look into the
complaint. It is discarded if he feels it to be frivolous. If not, the response of the
accused judge is sought as step two. If the chief justice of the high court does not find
the allegation baseless, he shall forward it to the Chief Justice of India, as step three. If
the Chief Justice of India finds it necessary to go ahead, he shall constitute a three-
member committee comprising two high court chief justices from other jurisdictions, as
step four. The report of the committee is step five, if found guilty, the accused judge
shall be advised by the Chief Justice of India to voluntarily retire. If that judge is
unrelenting, the Chief Justice of India shall advise the chief justice of the high court not
to allot any judicial work to that judge in step six. In step seven, against that
unrelenting judge, the Chief Justice of India recommends impeachment.

On plain reading, the approach of the Supreme Court in entertaining allegations against
a member of the higher judiciary is bold and laudable. But this seemingly bold
approach is laden with a deeper agenda. The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013, came into force in
December 2013. Before that, the Vishaka Guidelines 1997 — a judge-made law to fill
legislative vacuum occupied that field. The complaint of this victim is a textbook case
of sexual harassment under the 2013 Act. Then why did the Supreme Court ignore the
2013 Act, and instead opt for the ―in-house procedure‖? Why didn‘t the victim file her
complaint under the 2013 Act?

A complaint under the 2013 Act has to be made within three months of the incident. In
exceptional cases, the Act speaks of extending the time limit by another three months.
Her first sexual allegation, pertaining to the item number, was of December 2013. But

138
she made the allegation in August 2014. She was, thus, terribly late. As an additional
district and session judge and the president of the Vishaka Committee for those courts,
she was not a commoner. Perhaps, her motive in raising the allegation was not mere
justice under the 2013 Act. She wanted reinstatement. That was her second prayer
before the Supreme Court.

Failure of the Supreme Court and the respondent high court to usher her to the 2013
Act is of greater importance. By this they insulated the higher judiciary from the 2013
Act. Had the Supreme Court judgment discussed the 2013 Act and held it not
applicable to the judiciary, there would have been hue and cry. To avoid that, perhaps,
they talked only about the ―in-house procedure‖.

The ―in-house procedure‖ was adopted by the Supreme Court only in their
administrative capacity. Does it override a valid enactment made by Parliament? If yes,
why was the 2013 Act invoked against a former judge of the Supreme Court last year,
when a former intern levelled sexual harassment allegations? Paragraph 33 of the
judgment concerning the victim district judge specifically notes that the procedure
adopted by chief justice of the Madhya Pradesh high court was wrong as it was not
opted for any inadequacy noted in the ―in-house procedure‖. If the same reasoning is
used to choose between the 2013 Act and the ―in-house procedure‖, which shall
survive?

Through this litigation, the judiciary as well as the victim have managed to attain
indirectly what they could never have accomplished directly. A litigant taking a road
less travelled by is not something new. But for the Supreme Court, which has all the
power to declare the law of the land, this self-serving departure is not a matter to be
proud of. Even if there is a conflict between the law and the so-called equity, it is the
law which has to prevail. Equity can only supplement the law; it cannot supplant or
override

In July 2015, the in-house committee submitted its report to the CJI, concluding that
the sexual harassment charges were not proved against Justice Gangele and the case
was closed, due to the lack of satisfactory explanations and evidence.

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RK Pachauri Case

TERI Nobel Laureate and former environment minister RK Pacahuri's involvement into
a sexual harassment is one of the most shocking cases. On May 29, 2015, an internal
probe by The Energy and Resource Institute (TERI) found that its Director General,
RK Pachauri was guilty in the sexual harassment case filed against him by a woman
colleague. TERI committee also recommended disciplinary action against Pachauri.
The committee found that Pachauri's repeated attempts to build a personal relationship
with the woman had amounted to 'sexual harassment.' The report filed by the
committee stated that Pachauri 'took away work from her after she resisted his
advances.' The complainant had told Delhi High Court that "Pachauri was trying to
influence witnesses".

In march 2016, the Delhi Police charged the scientist with sexual harassment, assault
or use of criminal force on a women with intent to disrobe, stalking and gesturing, or
acting with the intention of insulting the modesty of woman. TERI first appointed
Pachauri as executive vice-chairman despite the allegations, but eventually dismissed
him from the institution.

Assistant Director General of AIR

In March 2015, a production assistant in Doordarshan had alleged that the Assistant
Director General of the channel was harassing her sexually for over a year. He was
accused of making physical advances, subjecting her to obscene comments and calling
her to his chambers at odd hours. The complainant also alleged that a hostile
environment was created for her instead. Ironically, herself is a part of the
organization's in house sexual harassment committee. However, instead of helping her
out, she was transferred from DD's Mandi House to the Central Production Centre
(CPC) office in Hauz Khas. While the DG did not respond to calls, the ADG said that
the charges were fabricated. He had said, "This is a malicious attempt to malign my
reputation and that of my family. The complainant was upset because we did not
recommend a documentary she had contributed to (on the Muzaffarnagar riots) for the

140
national film awards." She complained to the internal complaints committee and was
given a fair hearing.

Green Peace Case

In June 2015, ―Environment rights NGO Greenpeace India came in trouble, as an ex-
staffer went public with allegations of rape and sexual harassment by her colleagues.
The complainant alleged that she had to leave her job in 2013 after being sexually
harassed and raped by her colleagues. Narrating her ordeal, she said that it started a
year after she had joined the NGO at their Bengaluru office. The first incident
happened during an official trip in October 2012. "I got a call from a senior colleague at
11 pm, asking me to vacate my room and insisting that I sleep in his suite. In another
incident, he approached me physically despite my discomfort, insisted on force-feeding
me birthday cake, she told a news agency. Though she registered a written complaint
with the HR manager, she did not receive any verbal or written communication from
the Internal Complaints Committee (ICC) of the organisation, which looks into sexual
harassment cases. To her shock, she learnt that the person was a serial offender and no
action had been taken against him despite his misbehaviour with two other female
employees. However, she said, she was blamed for registering the complaint. Once in
an official meeting, in my absence, two senior employees indulged in character
assassination against me. Even some female colleagues, part of the ICC, made me feel
that I was at fault, that I didn't know how to set boundaries, she said. However, matters
came to a head in 2013. It was after a party, when a male colleague whom I knew quite
well found me unconscious and raped me. You cannot imagine the pain and fear I went
through. I was terrified to speak and I knew even if I had, no one in this organisation
would come to my aid. I did not have the strength to report my rape, neither to the
police, nor to my employers. How could I, when the processes had failed me once
already? she asked. Traumatised, she left the NGO after a few months. She said it took
her long to overcome the incident, and finally, she decided to tell her story through a
Face book post in February this year. Immediately after her post, Greenpeace issued an

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apology on their website and promised her to re-investigate the case in an adequate
manner.‖

St Stephen College case

In June 2015, an FIR was registered against Satish Kumar, an assistant professor in St
Stephen's chemistry department, after a PhD student filed a complaint alleging sexual
harassment by him. The student, who is doing her PhD under Kumar's supervision, has
also alleged that college principal Valson Thampu tried to protect him when the matter
was reported to the college authorities. The girl has also claimed in her complaint that
when her parents tried to approach the accused before the matter was reported to
college authorities, "he had profusely apologised to them and assured of not repeating
the act in future." Thampu confirmed that the victim had raised the complaint with him
but denied allegations of trying to protect Kumar. On June 21, the research scholar had
withdrawn her complaint from the ICC, claiming that she has lost faith in the
committee's proceedings.

4.2.12 The Expansive Scope of Vishaka

The critical advance made by the Vishaka judgement is the expansive interpretation
given to Article 19(1)(g) of the constitution of India, insofar as sexual harassment at the
workplace has been held to be in violation of the fundamental freedom of all women, as
citizens, to pursue the business, trade or profession of one‘s choice. It is within the
framework of constitutional law that the judgment operates, holding that:

Each such incident results in violation of the fundamental rights of Gender Equality
and the Right to Life and Liberty. It is a clear violation of the rights under Articles 14,
15 and 21 of the constitution. One of the logical consequences of such an incident is
also the violation of the victim‘s fundamental right under Article 19(1)(g) to practice
any profession or to carry out any occupation, trade or business.‖

The other major advance is the emphasis on international law as a source of law in
India in the absence of any other governing statute which prevents such violation of a
fundamental freedom. The judgment, while recognizing the need for legislation on the

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subject, puts in place a declaration of law that sexual harassment at the workplace is a
constitutional wrong and a crime.

Having said this, the judgment recognizes the need for, and puts in place, an internal
complaints procedure for entertaining complaints of sexual harassment in an attempt to
achieve equality and gender justice at all workplaces. The court observed that rights
without remedies and meaningless and therefore puts in place guidelines for prevention
and Redressal of sexual harassment. The significance of the internal committees lies in
their role as aiding prevention of sexual harassment, and therefore these committees are
vested with the responsibility of sensitization as part of their mandate and function.

It is important to emphasise that this declaration of law is not confined to the

employment relationship as traditionally understood between employer and employees,
but instead widens its focus to the workplace as broadly understood, and all
relationships that occur between those who inhabit a common workplace and interact
with each other. As a result, the intention and purpose of Vishaka has always been to
provide as wide a coverage as possible to the fundamental rights of women, and
therefore applies equally to conventional workplaces as well as to other professional
spaces such as Universities (and the students therein), professional and technical
bodies, and a variety of other spaces where sexual harassment could infringe upon such
fundamental rights of women.

4.2.13 Post – Vishaka Changes in the Law

The judgment, however, can only be considered inchoate, and although the law
developed further in a number of judicial precedents, there was uncertainty in the
public sector on the role of the internal complaints committees, and resistance to its
application in the private sector. Slowly, but surely, the law relating to sexual
harassment at the workplace advanced subsequent to Vishaka. Women employees and
workers began to actively repudiate the egregious and oppressive conditions of work,
till then considered commonplace. These advances were made in the ordinances and
policies of educational institutions and universities, in the service rules of the central
and state governments, and even in the model standing orders applicable to industrial

143
establishments. Each positive change represented the courage and perspicacity of
women who asserted the rights Vishaka had underscored, whether through complaints,
petitions, negotiations with managements and employers, or long drawn out court
proceedings. Some advances were in specific areas of legal interpretation, such as the
definition of workplace276 or the method of constitution of the complaints committee.277

Other advances were overarching, addressing core jurisprudential issues. The Vishaka
judgment had not stated what the expected outcome of an enquiry would be, nor did it
speak of any sanction against the person who was responsible for the sexual
harassment. This has led to a situation within the organized work force, and particularly
in government employment, resulting in a multiplicity of enquiries, one held by what
has come to be known by Vishaka Committee and the other under the Civil Service
Rules. The situation was obviously undesirable for the woman who had to go through
two sets of enquiry.

An interim order in 2004 in Medha Kotwal Lele278 which made detailed directions and
thereby changed the entire dynamic of the Vishaka guidelines and the internal
complaints committee set up under it. From being a preventive mechanism, this
committee was recognised as an enquiry committee for the purposes of taking
disciplinary action against an employee. As can be seen from the proceedings in this
litigation, the emphasis was on the civil services, with little or no discussion regarding
employees in the private sector or in technical institutions.

On 9th of October, 2012 the Supreme Court rendered the final judgment in Medha
Kotwal Lele 279 where it said that ―the findings and the report of the complaints
committee shall not be treated as a mere preliminary investigation or inquiry leading to

276
The management of Hirsch Watch Straps (p) Ltd v. The Presiding Officer, Labour Court, Salem, W.P.
No. 37091 of 2003 dated 07-06-2011, High Court of Madras.
277
Dr. B.N. Ray v. Ramjas College, 2012 (130) DRJ 277
278
Unreported interim order dated 26-04-2004, in Medha Kotwal Lele v. Union of India; Supreme Court
of India; Writ Petition (Criminal) Nos. 173-177 of 1999.
279
Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297

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a disciplinary action but shall be treated as a finding/report in an inquiry into the
misconduct of the delinquent.‖280

It is fortunate that the service rules 281 had already been amended and brought in
conformity with Vishaka, and subsequently with the directions of the Supreme Court in
Medha Kotwal Lele, and these amended rules remain in full force and effect.
Additionally, at the time of writing, the Department of Personnel and Training,
Government of India, is further amending the service rules to incorporate some of the
beneficial provisions of the sexual harassment of women at workplace (Prevention,
Prohibition and Redressal) Act, 2013 (‗2013 Act‘), without in any manner detracting
from the full impact of the judicial precedents which make the report of the internal
complaints committee binding on the disciplinary authority.

4.3 Review

The Court in Medha Kotwal Lele282 went on to notice that there is still no legal regime
governing disciplinary proceedings in bar councils, medical associations, councils of
architecture, institutions of chartered accountants, institutes of company secretaries and
other statutory institutions. It therefore directed that these institutions issue the
necessary circulars, and amend the rules/guidelines applicable to them in a time-bound
manner.

It is clear that this judgment is applicable unambiguously to employment situations in

these institutions. What is still not clear is whether it applies also to non-employment
situations. For instance, while it is unmistakable that the directions of the Court are
applicable to all employment situations in the medical and the legal professions283 , it is
not immediately apparent whether other interactions, such as between doctors and

280
Ibid. At para 44.1 to 44.3
281
Service Rules for Central Government employees are contained in the Central Civil Services
(Conduct) Rules, 1964, and the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
State governments often have separate or additional rules, as do other wings of the State, such as the
armed forces.
282
Supra n. 12
283
Both the Medical Council of India as well as the Bar Council of India are government by their own
statutes which provide, among other things, the standard of behaviour expected of the professionals
recognised therein.

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patients, between nurses and patients or their family members, between lawyers and
other lawyers, between lawyers and clients, between judges and their law clerks and
interns, or other such interactions which are integral to the domain of such services, are
covered by these directions.

In such interactions a whole host of laws operate which would require amendment in
order to ensure that sexual harassment which results from abuse of power in these
relationships is specifically proscribed. The development of jurisprudence in these
relationships requires careful attention in order to ensure that the Vishaka judgment is
realized in its true spirit. This can only be done if the conduct rules of these
professional bodies are amended to make sexual harassment misconduct by an
individual professional not only in relation to an employee, but also in relation to a
client or a fellow professional. This would include amendments to the Medical Council
of India Act, 1956, Bar Council of India Rules284, various University Ordinances and
Statutes, and so on. This has not happened.

However, post-Vishaka, and now with the passage of the 2013 Act, sexual harassment
at the workplace is categorically prohibited across all workplaces 285, whether in the
public or the private domain, whether rural or urban, whether in the organised or
unorganized sector.

284
These Rules are framed under the Advocates Act, 1961.
285
Section 3(1) of the 2013 Act states: ―Prevention of Sexual Harassment. – (1) No woman shall be
subjected to sexual harassment in any workplace.‖

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