Disha Basnet

Symbiosis Law School,Noida

Judgments on Sexual Harassment at workplace

1. Vishaka vs. State of Rajasthan and Ors., JT 1997 (7) SC 384 (Bhanwari Devi Case)

Facts of the Case:

This was a landmark case regarding the protection of women against sexual harassment at
workplace. It was the incident of 1992 where a lower caste social worker for the women’s
development programme in Rajasthan named Bhanwari Devi who was trying to stop a child marriage
in her village was allegedly gang-raped by five men of the upper-class community. She went to the
police station to lodge a complaint against the offenders but no thorough investigation was
launched.

Issue raised:

This landmark case raised so many questions in the context of sexual harassment which take place at
a workplace. The Issue raised whether the employer has any responsibility in cases of sexual
harassment by its employee or to its employees at a workplace?

What was held?

To get justice, she took her case to the Trial Court where Court acquitted the accused for the reason
of lack of the medical shred of evidence and other reasons. Due to which so many women’s groups
and organizations went for appeal against the judgment. The result of which, a public interest
litigation was filed in the Supreme Court of India on the issue of sexual harassment at the workplace.
This judgment had its basis in so many international treaties which had not been adopted in the
municipal law.

Supreme Court held that the sexual harassment of a woman at a workplace would be violative of her
fundamental rights of gender equality and right to life and liberty under Articles 14, 15, 19 and 21 of
the Indian Constitution. The court concluded that such Act would be considered as a violation of
women’s human rights.

Legal changes brought after the case:

After this verdict, a statutory vacuum was observed which proposed the route of judicial legislation
in the context of sexual harassment at workplace. The case laid down so many guidelines and
requirements which need to be fulfilled by the employer as well as other responsible persons or
institutions:

For preventing the acts of sexual harassment in the workplace, it should be the duty of the employer
or any other responsible person to prescribe for procedures and settlements.

Formation of a complaint committee at all workplaces.

Such committee has to be headed by a woman employee only and should have NGO or third-party
participation.
Half of the members of a committee should be comprised of women only.

All complaints regarding sexual harassment of a woman employee would be dealt by this committee
only, appropriate action in this regard shall be initiated by the employers in accordance with the
concerned law.

The committee would advise and recommend to the victim for the further course of action.

Provides for the definition of sexual harassment which includes any:

“Unwelcome sexually determined behaviour & demands from males employees at workplace, such
as: any physical contacts and advances, sexually colored remarks, showing pornography, passing
lewd comments or gestures, sexual demands by any means, any rumors/talk at workplace with
sexually colored remarks about a working woman, or spreading rumours about a woman’s sexual
relationship with anybody.”

So, these guidelines were the first of its type which created for the gender equality rights of women,
which should be free from harassment in both public and private employment. This judgment led
the Indian Government to enact the Sexual Harassment of Women at Workplace (Prevention,
Prohibition, and Redressal) Act, 2013 which came into force from 9 December 2013. This Act
superseded the Vishaka Guidelines for prevention of sexual harassment introduced by the Supreme
Court of India.

Substitution of new section for section 375

Section 375 before Criminal Law (Amendment) Act, 2013

Widened the scope of the definition of “Rape” which consists of any act where man penetrates his
penis into the vagina, mouth, urethra or anus; or insert any object or any part of the body not being
penis; or manipulates any part of the body of a woman so as to cause penetration or applies his
mouth to the vagina, anus or urethra.

Amended sixth circumstance by substituting words “under sixteen years of age” to “under eighteen
years of age”.

Substitution of new section for section 376

Clause (1): Imprisonment of min. of seven years and max of life or 10 years and with fine. When
women raped is his own wife and is not under twelve years of age– imprisonment of max. for 2
years or with fine or with both.

Clause (2): Rigorous imprisonment for min. ten years but which may extend for life and fine.

Clause(1): Rigorous imprisonment of min. 7 years and max. Of imprisonment for life and fine.

Clause (2): Rigorous imprisonment for min. ten years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of that person\’s natural life, and shall also
be liable to fine.

Substitution of new section for section 376A.

“Intercourse by a man with his wife during separation without her consent.”

Punishment: Imprisonment of max of 2 years and fine.

“Punishment for causing death or resulting in a persistent vegetative state of the victim.”

Punishment: rigorous imprisonment of min of twenty years and max of imprisonment for life, which
shall mean imprisonment for the remainder of that person\’s natural life, or with death.

Substitution of new section for section 376B.

“Intercourse by public servant with woman in his custody.”

Punishment: imprisonment max of five years and fine.

“Sexual intercourse by the husband upon his wife during separation without her consent.”

Punishment: imprisonment min of two years and max of seven years and fine.

Substitution of new section for section 376C.

“Intercourse by superintendent of jail, remand, home etc.”

Punishment: imprisonment of max of five years and fine.

“Sexual intercourse by a person in authority.”

Punishment: rigorous imprisonment of min of five years and max of ten years, and fine.

Substitution of new section for section 376D.

“Intercourse by any member of the management or staff of a hospital with any woman in that
hospital.”

Punishment: imprisonment of max of 5 years and fine.

“Gang rape”

Punishment: rigorous imprisonment of min 20 years and max for life, which shall mean
imprisonment for the remainder of that person’s natural life, or with death.

Insertion of new section 376E

“Punishment for repeat offenders.”

Punishment: Imprisonment for life which shall mean imprisonment for the remainder of that
person’s natural life, or with death.
2. Medha Kotwal Lele vs. Union of India

Jurisdiction: Supreme Court of India

Date of Decision: 19th October 2012

Facts of the Case :

The case arises against a background of the long-running attempt to tackle the problem of sexual
harassment of women at work in India, both through the courts and before the legislature.

In 1997, in a landmark case before the Supreme Court of India stemming from the brutal gang rape
of a publicly employed social worker at work (Vishaka and Others v. State of Rajasthan and Others
(1997) 6 SCC 241), the Court stated that a woman’s Constitutional rights to life (with dignity), to
equality and to practice any profession or carry out any occupation, demanded safeguards against
sexual harassment in the workplace. In the absence of legislative safeguards, the Court, stated that
an “affective alternative mechanism” was needed to prevent violations of these fundamental rights
in the workplace. To that end, the Court established guidelines (“Vishaka Guidelines”) with regards
to the prevention and redress of sexual harassment in the workplace. These set out a series of
obligations on employers to prevent or deter acts of sexual harassment and to remedy occasions
where such acts take place. The Court stated that the Vishaka Guidelines were to be treated as a
declaration of law and to apply until relevant protective legislation was enacted by the Parliament.

Since then, the “Protection of Women against Sexual Harassment at Workplace Bill 2010”, which
seeks to provide the requisite protection, has been passed by the Lok Sabha (the lower house of
Parliament) in September 2012. It is currently pending in the Rajya Sabha (the upper house of
Parliament) and so is not yet in force.

The present case arose when Medha Kotwal Lele, coordinator of Aalochana, a centre for
documentation and research on women and other women’s rights groups, together with others,
petitioned the Court highlighting a number of individual cases of sexual harassment and arguing that
the Vishaka Guidelines were not being effectively implemented. In particular, the petitioners argued
that, despite the guidelines, women continued to be harassed in the workplace because the Vishaka
Guidelines were being breached in both substance and spirit by state functionaries who harass
women workers via legal and extra legal means, making them suffer and by insulting their dignity.

The Court was specifically required to consider whether individual state governments had made the
changes to procedure and policy required by the Vishaka Guidelines and a number of earlier orders
of the Court.

Law

National laws:

• Article 141 Constitution of India

• The Vishaka Guidelines • Protection of Women against Sexual Harassment Bill 2010 (the Bill) – still
pending.
• Central Civil Service (conduct) Rules, 1964 (CCS Rules) • Industrial Employment (Standing Orders)
Rules.

International laws:

• The Beijing Platform for Action

What was held?

The Court recalled that the Beijing Platform for Action states that: “[V]iolence against women both
violates and impairs or nullifies the enjoyment by women of human rights and fundamental
freedoms (...) in all societies, to a greater or lesser degree, women and girls are subjected to
physical, sexual and psychological abuse that cuts across lines of income, class and culture”.

It went on to reproach the fact that India’s record on gender equality remains poor. The Court stated
that the Vishaka Guidelines had to be implemented in form, substance and spirit in order to help
bring gender parity by ensuring women can work with dignity, decency and due respect. It noted
that the Vishaka Guidelines require both employers and other responsible persons or institutions to
observe them and to help prevent sexual harassment of women.

The Court held that a number of states were falling short in this regard. It referred back to its
earlier findings on 17 January 2006, that the Vishaka Guidelines had not been properly implemented
by various States and Departments in India and referred to the direction it provided on that occasion
to help to achieve better coordination and implementation. The Court went on to note that some
states appeared not to have implemented earlier Court decisions which had required them to make
their legislation compliant with the Vishaka Guidelines. It noted that some states had only amended
certain aspects of their legislations rather than carrying out all required amendments and others had
taken even less action.

The Court, reiterated that there is an obligation to prevent all forms of violence. It stated that “lip
service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough
for true and genuine upliftment of our half most precious population – the women”.

Accordingly, it held that the Vishaka Guidelines should not remain just symbolic but rather shall
provide direction until the legislative enactment of the Bill. Hence, holding that a number of states
had not done everything required to comply with the Guidelines, the Court provided the following
directions:

• States governments must make the necessary amendments to their CCS Rules and Standing Orders
within two months of the date of judgment.

• States governments must ensure there is an adequate number of Complaint Committees within
each state to hear complaints and that such Committees are headed up by a woman.

• State functionaries must put in place sufficient mechanisms to ensure effective implementation of
the Vishaka Guidelines.

• The Bar Council of India shall ensure that all bar associations in the country and persons registered
with the State Bar Councils follow the Vishaka Guidelines. Similarly, the Medical Council of India,
Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and
other statutory Institutes shall ensure that the organisations, bodies, associations, institutions and
persons registered/affiliated with them follow the Vishaka Guidelines.
Finally, the Court stated that, in the event of non-compliance to the Vishaka Guidelines, the Courts
orders and/or directions above, aggrieved persons should approach the High Court of the state
concerned.

3. Albert Davit Limited vs Anuradha Chowdhury And Ors. on 27 November, 2003

The POSH Act has defined what constitutes sexual harassment under Section 2 (n) and states that
any of the following (directly or by implication) shall mean sexual harassment: (1) physical contact
and advances; (2) a demand or request for sexual favours; (3) making sexually coloured remarks; (4)
showing pornography; (5) any other unwelcome physical, verbal or non-verbal conduct of sexual
nature.

The Act, under Section 3, has further widened the definition of sexual harassment by providing that
any of the following circumstances, related to sexual harassment, may also amount to Sexual
Harassment: (1) implied or explicit promise of preferential treatment in the victim’s employment; (2)
implied or explicit threat of detrimental treatment in the victim’s employment; (3) implied or explicit
threat about the victim’s present or future employment status; (4) interferes with the victim’s work
or creating an intimidating or offensive or hostile work environment for her and (4) humiliating
treatment likely to affect the victim’s health or safety.

The definition is very wide, as it provides for direct or implied sexual conduct, which may mean that
what is “implied” sexual behaviour for one person, may not be the same for another person. Hence,
the implied behaviour will depend only upon the interpretation of a person. The definition also
provides that harassment may be a verbal or non-verbal conduct. Hence, a mere statement in a case
where the plaintiff requested defendant No. 1 to instruct the attendants to switch off the A. C.
Machine, but in reply defendant No. 1 said “… come close to me, you will start feeling hot“, can also
be construed to be sexual harassment

4. Dr. S. Thippeswamy Vs. Mangalore University Mangalagangothry, 2011 (4) KCCRSN 403

The absence of any actual physical contact or the attempt to molest the complainants need not
detain one in reading the writing on the wall, as it were. The Petitioner was well past middle age and
a teacher who certainly had great influence on the complainants. The lack of details of possible
physical advances and any groping and other stealthy sexual advances on occasion, seemingly
accidental or by design would hardly be expected to be narrated by the two women. It is, therefore,
necessary to read between the lines and understand the difficulty with which the complainants have
even ventured to submit the said complaint and only after they had resigned from their positions
and were out of the reach of the Petitioner

5.Ruchika Singh Chhabra vs M/S. Air France India And Anr. on 30 May, 2018

The facts of the case are that Ruchika Singh Chabra (the appellant) joined the first respondent or "Air
France" as Commercial Assistant. She alleges to having become a victim of sexual harassment by a
certain employee, Stanislas Bru, a French National, currently serving as Managing Director of Air
France.The Appellant alleges to being harassed by Brun on multiple occasions and cited several
incidents supporting her averment that she was subjected to repeated sexual advances inspite of her
repeated or express refusal. In order to victimise her for complaining against incidents of Sexual
Harassment, she was compelled to submit her resignation on by three people in Air France and
claims that this was under the threat of immediate termination along with being threatened against
getting any letter or documents of service and provident fund/gratuity from the company. She
alleges that when she tried resisting, she was molested by three male senior executives who got the
resignation letter scribed and signed by her for reporting against her senior. After getting the
resignation forcefully signed, she was asked to leave the premises within maximum half an hour
without her belongings. When she requested them to collect her personal belongings and data she
was blatantly refused. The Appellant after coming out of her confinement was compelled to call the
Women Helpline and requested the police to come to her office. The police then came to the office
and took her to the Police Station. The Appellant also lodged a complaint with the Internal
Complaints Committee ("ICC"),In furtherance to the aforesaid complaint, the Appellant also
approached the Delhi Commission for Women (hereinafter "Respondent no. 2" or "DCW") to ensure
that a proper ICC is put in place to investigate the complaint of the Appellant.

The Appellant contended that the constitution of the said Committee is contrary to the provisions of
the POSH Act as the external member appointed on the committee was not associated with a non-
governmental organization and his qualifications have not been informed to her until much later in
the course of the proceedings of the ICC. She also contends that the procedure followed by the ICC is
not in accordance with law.

Air France urged a preliminary objection with respect to the jurisdiction of this Court to entertain the
appellant's writ petition asserting that no cause of action arose within the National Capital Territory
of Delhi and, therefore, this Court lacked jurisdiction to entertain the writ petition.

The case was listed before the learned single judge who dismissed the petition for want of territorial
jurisdiction on the ground that the court was not persuaded to accept that any part of the cause of
action has arisen within the National Capital Territory of Delhi. It was further contended that the
second respondent, a statutory body of the Government of Delhi, who was seized of the appellant's
complaint did not investigate the matter to ensure that the ICC was constituted in accordance with
the Vishaka Guidelines and the Workplace Harassment Prohibition Act. Counsel for Air France
disputed the jurisdiction of this court in the present matter by contending that the appellant was
working in the Gurgaon office of Air France and that no part of the cause of action arose in Delhi as
none of the alleged incidents of sexual harassment have been alleged to have happened in Delhi.

The question that arises for determination in the present appeal is whether the learned Single Judge
has erred in dismissing the case on the ground of absence of territorial jurisdiction.

The Appellant has contended that Air France has its registered offices in Delhi. The company has not
disputed this fact but asserted that the Delhi office is merely a communication address. The
appellant disputes this assertion by suggesting that the ICC was constituted for both the Delhi and
Gurgaon office and that the letter of termination of employment issued to the appellant shows that
they were employed by the Delhi office. Therefore, it cannot be said that the Delhi office is only a
communication address.

Considering the entire facts of the case narrated, and the reasons stated hereinabove, in the
considered opinion of this Court, the learned Single Judge should not have dismissed the writ
petition for want of territorial jurisdiction. In the aforesaid situation, it would not be possible to hold
that not even a part of the cause of action has arisen at Delhi so as to deprive this court the
jurisdiction to entertain the writ petition filed by the Appellant. The impugned order, of the learned
Single Judge, therefore, is accordingly set aside.
The ICC appointed, for the reasons discussed earlier, was clearly invalid, inasmuch as Mr. Dias did
not answer the qualifications spelt out by section 4 (1).

the Workplace Harassment Prohibition Act. Consequently, the constitution of the ICC by Air France
and all its resultant proceedings, including the report submitted by it, are declared invalid and
accordingly were set aside. ICC was directed to be reconstituted in strict compliance with the
requirements under law.

6. Shital Prasad Sharma vs State Of Raj And Ors on 6 April, 2018

The State of Rajasthan has also added Rule 25-AA in the Rajasthan Civil Services (Control) Rules,
1971 by making a specific provision to restrain the Government servant to indulge in any act of
sexual harassment of any woman at work place. "25-AA. Prohibition of sexual harassment of working
women. - (1) No Government servant shall indulge in any act of sexual harassment of any woman at
her work place.

(2) Every Government servant who is incharge of a work place if brought to his cognigence shall take
appropriate steps to prevent sexual harassment to any woman at such work place, "sexual
harassment" includes such unwelcome sexual determined behaviour, whether directly or otherwise
as:-

(a) physical contact and advances;

(b) demand or request for sexual favours;

(c) sexually coloured remarks;

(d) showing any pornography; or

(e) any other unwelcome physical, verbal or non- verbal conduct of a sexual nature."

The State of Rajasthan has further inserted Rule 18A in the Rajasthan Civil Services (CCA) Rules, 1958
whereby a special procedure in the case of sexual harassment of working women at work place, has
been provided. The perusal of Rule 25-AA of the Conduct Rules, 1971 makes it very clear that there
is a prohibition of sexual harassment of working women and if any Government servant indulges in
any act of sexual harassment of any woman at her work place, the same is a misconduct. The court
further finds that there has been an amendment in the CCA Rules, 1958 and Rule 18-A has been
inserted by the Government notification whereby the special procedure in the cases of sexual
harassment of working women at work place has been introduced. A perusal of Rule 18A of the CCA
Rules, 1958 would show that the Complaints Committee which are established in each
department/Office for enquiring into the complaints of sexual harassment, is deemed to be an
enquiry authority and the report of the said Committee shall be deemed to be an enquiry report for
the purpose of the CCA Rules, 1958. The Disciplinary Authority is further required to act on the said
enquiry report in accordance with these Rules.