CASE STUDY OF

MEDHA KOTWAL V. UNION OF INDIA

(2013)1 SCC 297

SUBMITTED BY:
MR. RUPAKSH SHARMA
ASSISTANT PROFESSOR

SUBMITTED BY:
PALLAVI KASHYAP
22FLUCDDN01010
LL.B. 2ND YEAR
 ABSTRACT

Almost 4 out of 10 women, when they go to their offices every day,

thinks that “is this what I came for?”.
Starting to spread around 1990s, women started stepping out their homes in
order to contribute not only to house making but also house earnings and being
such time in economy, inflation makes it quite hard on a household to run on
single bread earner.
But breaking that glass ceiling is not as easy as said. Women had to run over
many hurdles in order to run the marathon of getting out of house to be
independent and self-reliant humans. This marathon, with no foreseeable end to
it, have many hurdles like, being given gender roles like house making, double
shifts, male dominance with strong believe that the man only provides for the
house, etc. this male dominance is still so deep rooted that the income of the
women is considered to be extra income of the house when the male gets the
title of main bread earner. With all these problems, one can not avert their eyes
from the biggest among them that is; Workplace Sexual Harassment.
Data says that almost 35% women are harassed at their workplace and out of
them 37% said it disrupted their career advancement.1 the government of India
tried to tackle these social evils with the help or rules and regulations and came
up with Vishakha Guidelines in the year 1997 and set the rules as to what counts
as sexual harassment. But women still had to suffer and be victims of such evil
even after Vishakha guidelines and in the year 2013 a lady Medha Kotwal stated
her discontent with the Vishaka Guidelines and outlined the instances of sexual
harassment she had experienced in a letter she sent. The Supreme Court turned
the letter into a writ petition in an effort to oversee the Vishaka Guidelines’
implementation throughout the nation, hence MEDHA KOTWAL V UNION OF
INDIA was filed.
This case is a Writ Petition (Criminal) Nos. 173-177 of 1999. This case
fundamentally questions the protection of women against sexual harassment at
workplace at its ground reality. As a matter of public interest litigation it throws
light on the pressing need of proper implementation of Vishaka Guidelines in its
letter and spirit.2
BACKGROUND OF THE CASE
1
https://www.aauw.org/issues/equity/workplace-harassment/
2
VN Shukla, ‘Constitution of India’ in Mahendra Pal Singh (Ed 13), Fundamental Rights (EBC 2017)
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
center 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.

BRIEF FACTS OF THE CASE

In this Civil Appeal case, Medha Kotwal Lele (the appellant) was associated
with an organization called Alochana which is the Centre for research on rights
of women. She along with a group of women called the attention of the Court
towards the rising cases of sexual harassment against women at workplace and
raising the concern of undermined laws protecting women from the same. Even
after, the hon’ble Supreme Court has laid down the Vishaka guidelines still, the
women are prone to violent sexual harassments at their workplaces. Often,
women are the not only the victims of the sexual harassment but also face
severe consequences at workplace in relation to the harassment like demeaning
their dignity. De facto, these guidelines have been constantly breached by the
employers and thus, this matter needs to be addressed.3

ISSUES OF THE CASE

Against the backdrop of the legal and the extra-legal mechanisms, whether the
individual government of each state has made appropriate changes within the
rules and policies of their functioning vis-a-vis the recommendations issued by
the hon’ble Supreme Court of India in 1997 by the name of Vishaka Guidelines?
A division bench of three judges heard the aforesaid matter in the light of facts
and figures, argumentation of both the sides and the true intent of relevant
legislatures.

ARGUMENTS OF THE APPELANT PARTY

The appellants argued that the central point of the case is the ineffective and
improper execution of Vishaka guidelines. It is due to the negligent behaviour of
the States and the employers (both public and private) that the very merit and
basis of Vishaka guidelines are not in consonance with the ground realities. It
can be said to be gross miscarriage of justice. The framers of the Constitution
highlighted the issues of gender equality, justice for women and parity of all
genders. They went on to write a constitution for us that guarantees fairness and

3
MedhaKotwalLele& Others v Union of India & Others, AIR 2013 SC 93 <Medha Kotwal Lele & Ors vs U.O.I. &
Ors on 19 October, 2012 (indiankanoon.org)> last accessed on 26th November, 2020
protection of women. But we have miserably failed to accomplish the very
purpose and objective of Vishaka guidelines.
Furthermore, they presented the statistics in support of their argument. In United
Nations Gender Equality Index out of the total of 147 nations the rank of India
is 129. This is the lowest rank of the South Asian countries but Afghanistan. It
can also be substantiated by the representation of women in the Parliament and
Legislative Assemblies. It accounts for only 10- 11 percent of the total seats.
Vishaka guidelines do not only aim at redressal of sexual harassment but it lays
down that the workplace ought to have a safe environment for women to work
with respect, honour and civility.

ARGUMENTS OF RESPONDENT PARTY

As per the directions of the Court, the respondents had to respond to the Court
with respect to the contentions of the appellants, meaning thereby, that each of
the governments of states and governments of union territories had to file an
affidavit. The affidavit would indicate the status of implementation of Vishaka
guidelines in their respective states or union territories.

LEGAL REFERNCES IN THE CASE

1. Vishakha & others v. state of Rajasthan & others4:

the judgement was passed on 13th august, 1997. This landmark case-law
forms the very basis of the present case as it deals with checking the
implementation of judgment given in the former case. The focal point of
the case was prevention and protection of women against sexual
harassment at the workplace. The hon’ble Supreme Court of India
provided guidelines to initiate disciplinary action and create a mechanism
for addressing to this issue. It further casted the duty on employer or other
responsible person to prevent commission of sexual harassment at
workplace. However, the guidelines as directed in this case have not been
observed in real. Hence, it was indispensable for the Court to take
cognizance of the matter once again from a different perspective.
2. The protection of human rights act, 1993:
4
(1997) 6 SCC 241
 In the case of Vishaka guidelines, the Court had explicitly mentioned that
these guidelines will not cause any damage to the rights provided by The
Protection of Human Right Act, 1993. And, as the present case is based
on the previous case, therefore, it can be implied that the outcome of this
judgment will also not affect any right vested by the given Act.

3. The article 141 of constitution of India, 1949:

Article 141 of the Constitution of India has a mention in this case because
Article 141 states that “Law declared by Supreme Court to be binding on
all courts - The law declared by the Supreme Court shall be binding on all
courts within the territory of India.”5 It outlines the authority of the Apex
Court of the land.The compliance of this Article is significant for the
Supreme Court in the present case to exercise its authority. As the law
declared by the Supreme Court is binding, so it should have been
followed. But rather, it has been breached on several occasions.

4. The Industrial Employment (Standing Orders) Act, 1946:

Within the ambit of Vishaka guidelines, the Court laid down that the
standing orders of the Act should include the preventive steps for
protection of women against sexual harassment at workplace. By the way
of this Act, the employers are required to define the terms and conditions
of employment and get it certified by the concerned authority. It is salient
for this case to underscore this legal provision so as to deter the acts of
sexual harassment of women at workplace.

5. The Indian penal code, 1860:

The Vishaka guidelines have clearly specified that the employers are
under the duty of initiating appropriate actions as per law in case of the
occurrence of a conduct accounting to any offence under Indian Penal
Code or any other relevant law.6 Basically, this is to ascertain that the
victim/s and/or witnesses are not discriminated against due to the
complaint of sexual harassment. The Beijing Declaration of Platform for
Action has also recognized and indicated the issue in following terms,
“Violence 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

5
PM Bakshi, The Constitution of India (first published 1991, 16thedn, Universal LexisNexis 2019)
6
Vishaka& Others v State of Rajasthan & Others, (1997) 6 SCC 241
 physical, sexual and psychological abuse that cuts across lines of income,
class and culture.”7

VIEWS OD COURTS

The Court heard the matter and examined the progress report of the all
the States and Union Territories which is as follows.
The States of Orissa, Meghalaya, Himachal Pradesh, Goa, Arunachal
Pradesh and West Bengal have changed the rules governing duties, public
rights and obligations of the government employees but have not yet
made any amendments in Civil Services (Conduct) Rules, 1964.Likewise,
the States of Sikkim, Madhya Pradesh, Gujarat, Mizoram, Orissa, Bihar,
Jammu & Kashmir, Manipur, Karnataka, Rajasthan, Meghalaya, Haryana,
Himachal Pradesh, Assam, National Capital Territory of Delhi, Goa,
Nagaland, Arunachal Pradesh, Jharkhand and Tamil Nadu have not
amended the Standing Orders with respect to the Industrial Employment
(Standing Orders) Act, 1946. The States of Rajasthan, Meghalaya,
Himachal Pradesh, Assam and Jammu and Kashmir have not followed
Vishaka guidelines and upon checking it turns out that these states
haven’t adhered to the formation of Complaints Committee. Some of the
Statesand Union Territories only have one Complaints Committee for the
whole of the State.The Union Territories of Andaman and Nicobar
Islands, Daman and Diu, Lakshadweep, Dadra and Nagar Haveli and
Puducherry have not made any amendments in the Standing Orderswith
respect to the Industrial Employment (Standing Orders) Act, 1946.The
Union Territory of Chandigarh have not have made the required
amendments in the Civil Services (Conduct) Rules, 1964.
Finally, keeping in view the distorted facts on the ground, the Court
ordered the respective States and Union Territories that they have to carry
out the required amendments of Civil Services (Conduct) Rules, 1964 and
standing orders of Industrial Employment (Standing Orders) Act, 1946.
And, this has to be done within two months from the date of the
judgment. In addition to that, the States and Union Territories were
directed to constitute sufficient number of Complaints Committee to
ascertain that the mechanism function at the levels of taluka, district and
state. The States and Union Territories that have formed only one
Complaints Committee for the whole jurisdiction were now ordered to
form a fair enoughnumber of Complaints Committee within duration of

7
MedhaKotwalLele& Others v Union of India & Others, AIR 2013 SC 93
two months from the date of judgment. The Complaints Committee has to
be headed by a woman and association of independent members in the
Committee is encouraged.
In light of the above, the Court held that State functionaries and private
and public sector undertakings/organizations/bodies/institutions etc. have
to place efficient mechanism and take preventive action in order to
implement Vishaka guidelines in its letter and spirit. The guidelines must
be followed substantially and severe consequential actions must be taken
against the perpetuators of the offence.Furthermore, it is stated that when
the alleged accused is found guilty of the offence, the complainant or the
victim cannot be pressurized to work with/under such person. And in
cases of possibility of transfer, the alleged harasser can be transferred.
Along with that, they have to establish provision indicating strict
disciplinary action to be taken up if the witnesses or complainant/s face
any kind of intimidation.
In furtherance of proper enforcement, the Court issued circulars and
notices instructing the statutory bodies like Bar Council of India, Medical
Council of India, Institute of Chartered Accountants, Institute of
Company Secretaries and other statutory Institutes to make sure that the
organizations, bodies, associations, institutions and persons
registered/affiliated with them adhere to the guidelines as prescribed. On
registration of any case of sexual harassment at the above-mentioned
places, the respective statutory bodies will deal with them as per the
guidelines of both the case-laws (Vishaka and the present case). It also
stated that in case the guidelines are still not followed, the aggrieved
persons can approach the respective High Courts.

CONCLUSION

To sum up everything stated in this case analysis, it can be said that This
is a landmark judgment depicting that the actual implementation of laws
is necessary; only making them won’t help. This public interest litigation
has initiated the trend of checking on the enforcement of laws in reality.
Probably, more such checks and balances would take place and the
application part of the laws might be effectuated.