LLM Notes: From Vishaka to Legislation: The Evolution of Sexual Harassment Protections in India

 The judgment in Vishaka and Others v. State of Rajasthan (1997) is a landmark Supreme Court of India ruling addressing sexual harassment of women at the workplace. The case arose after Bhanwari Devi, a social worker in Rajasthan who tried to prevent a child marriage, was brutally gang-raped by men from her village. The local courts acquitted the accused due to lack of evidence, and police and medical officials failed to provide adequate support. Aggrieved by this, women's groups including Vishaka filed a Public Interest Litigation (PIL) in the Supreme Court under Article 32 of the Constitution to seek protection for women against workplace sexual harassment.

Key Points of the Judgment

• The Supreme Court recognized sexual harassment at the workplace as a violation of fundamental rights guaranteed under Articles 14 (Right to Equality), 15 (Prohibition of Discrimination), 19(1)(g) (Right to Work), and 21 (Right to Life and Personal Liberty) of the Indian Constitution.

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Whether complaint of sexual harassment made by one woman against another woman is maintainable?

A cursory glance at Section 2(m) of the 2013 Act shows that the term "respondent" brings within its fold "a person", thereby including persons of all genders. {Para 11}

12. Although there is substance in the submission of the petitioner that the said expression has to be read in conjunction with the rest of the statue as a whole, there is nothing in Section 9 of the 2013 Act [which has been referred to in Section 2(m)] to preclude a same-gender complaint under the Act. Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized.

13. That apart, the definition of "sexual harassment" in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective. Sexual harassment, as contemplated in the 2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act. A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.

14. If Section 3(2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se. In such context, the language of Section 2(m), Section 2(n) and Section 3 of the 2013 Act is set out below:-

"2(m) "respondent" means a person against whom the aggrieved woman has made a complaint under section 9;

15. In such view of the matter, the act alleged by the private respondent to have been perpetrated by the petitioner, as evident from the complaint dated September 15, 2020 (Annexure P-5), is maintainable under the 2013 Act. Hence, the complaint cannot be turned down at the outset.

 IN THE HIGH COURT OF CALCUTTA

W.P.A. 9141 of 2020

Decided On: 27.11.2020

Malabika Bhattacharjee Vs. Internal Complaints Committe, Vivekananda College and Ors.

Hon'ble Judges/Coram:

Sabyasachi Bhattacharyya, J.

Citation:  MANU/WB/0752/2020.

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Whether the Internal Complaints Committee can recommend disciplinary action against lady making a complaint of sexual harassment?

 The constituted ICC, upon analysing the complaint, came to the

conclusion that the relationship between the Petitioner and Respondent No.3

were based on personal grounds with mutual consent, and that the

allegations of sexual, emotional and mental harassment were not

substantiated by the Petitioner. Thus, the complaint against the Respondent

No. 3, was rejected. However, the ICC did not stop there. The ICC went on

to make an observation that the behaviour of the parties had been

inappropriate and unbecoming of Officers/Employees of the Bank, and

accordingly the ICC recommended the Competent Authority to take suitable

action against the Petitioner and the Respondent No. 3, as deemed fit.

As per the above provisions, if the allegations of sexual harassment or

any other form of harassment, as contemplated under the Act, are not proved

before the ICC, the ICC can only recommend the employer to not take any

action in the particular matter. However, the ICC, in the present case, has

gone beyond its statutory mandate, as recognised under Section 13(2) of the

Act. It has, in fact, given observations stating that both the parties i.e., the

Petitioner and the Respondent No.3 have indulged in inappropriate/

unbecoming conduct and indiscipline, and has recommended the competent

authority to take suitable action against them. Giving such a

recommendation is clearly beyond the jurisdiction of the ICC.

15. Complaints of sexual harassment are initially filed with enormous

reluctance. The power of the ICC to hold the enquiry and give a report

ought to be within the scheme and the four corners of the statute itself. If a

case of sexual harassment is not made out, the ICC can only conclude that

no action is required to be taken. On the other hand, if a case of sexual

harassment is made out, then the recommendation of the ICC can only be for

taking appropriate action for misconduct, in accordance with the provisions

of the service rules as contained within Section 13(2) and 13(4) of the Act.

16. It is not contemplated within the provisions of the Act that while

holding that no action is to be taken and the complaint is to be rejected, the

ICC can direct for suitable action on the ground that the parties have

indulged in an inappropriate conduct. Such a determination and

consequential recommendation is beyond the jurisdiction of the ICC.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 16th December, 2020

W.P.(C) 3249/2017 & CMAPPL. 14126/2017

BIBHA PANDEY Vs PUNJAB NATIONAL BANK

CORAM:

JUSTICE PRATHIBA M. SINGH

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Important provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[Act 14 of 2013 as amended up to Act 23 of 2016]

Chapter I

PRELIMINARY

1. Short title, extent and commencement.—(1) This Act may be called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “aggrieved woman” means—

(i) in relation to a workplace, a woman, of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;

(ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

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