काम के स्थान पर यौन उत्पीड़न: एक भारतीय संदर्भ

Sexual harassment in work place

यौन उत्पीड़न यौन भेदभाव का एक रूप है जो अवांछित यौन प्रगति के माध्यम से पेश किया जाता है, यौन पक्ष के लिए अनुरोध और यौन मकसद के साथ अन्य मौखिक या शारीरिक आचरण

“यौन उत्पीड़न”  एक विशेष भाषा या कुछ इशारों का उपयोग करके या एक विशेष तथ्य बताते हुए, यहां तक कि विशेष रूप से यौन उत्पीड़न के रूप में इन कार्यों को फोन किए एक महिला का उत्पीड़न, यौन उत्पीड़न हो सकता है.

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इस उद्देश्य के लिए, यौन उत्पीड़न में ऐसे अवांछित यौन निर्धारित व्यवहार (चाहे प्रत्यक्ष रूप से या निहितार्थ द्वारा) शामिल हैं:

(क) भौतिक संपर्क और प्रगति;

(ख) यौन पक्ष के लिए एक मांग या अनुरोध;

(ग) यौन रंग की टिप्पणियां;

(घ) अश्लील साहित्य दिखाना;

(ड) यौन प्रकृति का कोई अन्य अवांछित शारीरिक, मौखिक या अवाचिक आचरण।

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Sexual harassment at the place of work: an Indian context

Sexual harassment in work place

Sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones

There is no restricted definition or specific limited of meaning the expression “sexual harassment”. Harassment of a lady by using a particular language or certain gestures or by stating a particular fact, without even specifically calling these actions as sexual harassment, yet the same can still be sexual harassment.

READ THIS ARTICLE IN HINDI [हिंदी में पड़े]

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

(a) physical contact and advances;

(b) a demand or request for sexual favours;

(c) sexually-coloured remarks;

(d) showing pornography;

(e) any other unwelcome physical, verbal or nonverbal conduct of sexual nature.

An analysis of the above definition, shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her. [Apparel Export Promotion Council Vs. A.K. Chopra, AIR 1999 SC 625 (1999) 1 SCALE 57 : (1999) 1 SCC 759]

Where any of these acts is committed in circumstances whereunder 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 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.

Supreme Court in Apparel Export Promotion Council v. A.K. Chopra, 1999 SCC (L and S) 405 wherein it has been held as under:-

“26. There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty – the two most precious fundamental rights guaranteed by the Constitution of India. As early as in 1993, at the ILO Seminar held at Manila, it was recognised that sexual harassment of women at the workplace was a form of “gender discrimination against women”. In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (“CEDAW”) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. These international instruments cast an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. (See with advantage – Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526] ; Mackinnon Mackenzie and Co. Ltd. v. Audrey D’ Costa [(1987) 2 SCC 469] ; Sheela Barse v. Secy., Children’s Aid Society [(1987) 3 SCC 50, 54] SCC at p. 54; Vishaka v. State of Rajasthan [(1997) 6 SCC 241] ; People’s Union for Civil Liberties v. Union of India [(1997) 3 SCC 433] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416, 438] SCC at p. 438.).

In Vishaka and others Vs. State of Rajasthan and Others, , this Court issued certain directions as to how to deal with the problem. All the States were parties to that proceedings. Now, it appears that the directions issued in Vishaka case were not properly implemented by the various States/Departments/Institutions. In a rejoinder affidavit filed on behalf of the Petitioners, the details have been furnished. The counsel appearing for the States submit that they would do the needful at the earliest. It is not known whether the Committees as suggested in Vishaka case have been constituted in all the Departments/Institutions having members of the staff 50 and above and in most of the District level offices in all the States members of the staff working in some offices would be more than 50. It is not known whether the Committees as envisaged in the Vishaka case have been constituted in all these offices. The number of complaints received and the steps taken in these complaints are also not available. We find it necessary to give some more directions in this regard. We find that in order to co-ordinate the steps taken in this regard, there should be a State level officer, i.e., either the Secretary of the Woman and Child Welfare Department or any other suitable officer who is in charge and concerned with the welfare of women and children in each State. The Chief Secretaries of each State shall see that an officer is appointed as a nodal agent to collect the details and to give suitable directions whenever necessary.

As regards factories, shops and commercial establishments are concerned, the directions are not fully complied with. The Labour Commissioner of each State shall take steps in that direction. They shall work as nodal agency as regards shops, factories, shops and commercial establishments are concerned. They shall also collect the details regarding the complaints and also see that the required Committee is established in such institutions.

In Seema Lepcha Vs. State of Sikkim and Others, Petition for Special Leave to Appeal (Civil) No. 34153/2010 decided on 3.2.2012 Apex Court gave the following directions:

(i) The State Government shall give comprehensive publicity to the notifications and orders issued by it in compliance of the guidelines framed by this Court in Vishaka’s case and the directions given in Medha Kotwal’s case by getting the same published in the newspapers having maximum circulation in the State after every two months.

(ii) Wide publicity be given every month on Doordarshan Station, Sikkim about various steps taken by the State Government for implementation of the guidelines framed in Vishaka’s case and the directions given in Medha Kotwal’s case.

(iii) Social Welfare Department and the Legal Service Authority of the State of Sikkim shall also give wide publicity to the notifications and orders issued by the State Government not only for the Government departments of the State and its agencies/instrumentalities but also for the private companies.

As a largest democracy in the world, we have to combat violence against women. We are of the considered view that the existing laws, if necessary, be revised and appropriate new laws be enacted by Parliament and the State Legislatures to protect women from any form of indecency, indignity and disrespect at all places (in their homes as well as outside), prevent all forms of violence – domestic violence, sexual assault, sexual harassment at the workplace, etc; — and provide new initiatives for education and advancement of women and girls in all spheres of life. After all they have limitless potential. 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.

After Visakha Guidelines supreme court issued further directions in MEDHA KOTWAL LELE AND OTHERS Vs. UNION OF INDIA (UOI) AND OTHERS [(2013) AIR(SC) 93 ]

(i) The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (By whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such 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.

(ii) 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.

(iii) 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 woman and as far as possible in such Committees an independent member shall be associated.

(iv) The State functionaries and private and public sector undertakings/organisations/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. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.

(v) 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, 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 guidelines laid down by 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 receipt of any complaint of 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 and the guidelines in the present order.

Human Rights Concern

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 laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces and that enactment of such legislation will take considerable time.

It is necessary and expedient for employers in workplaces as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:

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 workplaces 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.

Criminal Proceedings:

Where such conduct amounts to a specific offence under the Indian Penal Code 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 ensure 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.

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.

Complaint Mechanism:

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

Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor 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 NGO or other bodies 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 report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

Certain other relevant provisions may also be noticed at this stage. Rule 3-C of the CCS (Conduct) Rules, 1964 was inserted in 1998 and reads thus:

3-C Prohibition of sexual harassment of working women

(1) No Government servant shall indulge in any act of sexual harassment of any woman at her workplace.

(2) Every Government servant who is in-charge of a workplace shall take steps to prevent sexual harassment to any woman at such workplace.

Explanation – For the purpose of this rule, “sexual harassment” includes such unwelcome sexually determined behavior, whether directly or otherwise, as –

(a) Physical contact or 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.

Experience in United States

In the United States of America, the Code of Federal Regulations distinctly recognizes three kinds of acts of sexual harassment.

29 C.F.R. 1604.11 Sexual harassment.

(a) Harassment on the basis of sex is a violation of Section 703 of title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,

(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

(3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Further, the Equal Employment Opportunity Commission in the U.S.A is to look into the facts of each case as a whole and in proper context to determine whether the act/s complained of amount to sexual harassment.

29 C.F.R. 1604.11 Sexual harassment.

(b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

In Janzen v. Platy Enterpirses Ltd. [1989] 1 S.C.R. 1252, two waitresses at a restaurant had complained of sexual harassment and the Human Rights Commission as well as the Court of Queen’s Bench in Manitoba, Canada had ruled in favour of the complainants. The Court of Appeal held that there was no discrimination on the basis of sex and that the employer could not be liable for the sexual harassment by its employee. The Supreme Court of Canada reversed the Court of Appeal. It noted that Section 19 of the Human Rights Code expressly prohibited sexual discrimination in the workplace. Section 19 of the Human Rights Code in Canada reads:

19 (1) No person who is responsible for an activity or undertaking to which this Code applies shall

(a) harass any person who is participating in the activity or undertaking; or

(b) knowingly permit, or fail to take reasonable steps to terminate, harassment of one person who is participating in the activity or undertaking by another person who is participating in the activity or undertaking.

19 (2) In this section “harassment” means

(a) a course of abusive or unwelcome conduct or comment undertaken or made on the basis of any characteristic referred to in Sub-section 9(2); or

(b) a series of objectionable and unwelcome sexual solicitations or advances; or

(c) a sexual solicitation or advance made by a person who is in a position to confer any benefit on, or deny any benefit to, the recipient of the solicitation or advance, if the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(d) a reprisal or threat of reprisal for rejecting a sexual solicitation or advance.

Discussing discrimination in the context of sexual harassment, the Supreme Court of Canada observed in Janzen:

In keeping with this general definition of employment discrimination, discrimination on the basis of sex may be defined as practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender.

After undertaking a detailed discussion of the concept of sexual harassment, the Court observed as under:

Common to all of these descriptions of sexual harassment is the concept of using a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.

Dickson, C.J. defined ‘sexual harassment’ in the following terms:

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

(emphasis supplied)

In Ellison v. Brady U.S. Court of Appeals, Ninth Circuit 924 F. 2d 872 (1991), the Court of Appeals formulated the ‘reasonable woman’ standard and observed:

We believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. Courts “should consider the victim’s perspective and not stereotyped notions of acceptable behavior.” If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.

We therefore prefer to analyze harassment from the victim’s perspective. A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a great figure' ornice legs.’ The female subordinate, however, may find such comments offensive. Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object”. The characteristically male view depicts sexual harassment as comparatively harmless amusement.

We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.

Case Reference :

  1. Vishaka and others Vs. State of Rajasthan and Others, AIR 1997 SC 3011 : (1997) 3 Crimes 188
  2. Seema Lepcha Vs. State of Sikkim and Others, (2012) 2 SCALE 635
  3. Apparel Export Promotion Council Vs. A.K. Chopra, AIR 1999 SC 625 (1999) 1 SCALE 57 : (1999) 1 SCC 759
  4. D.S. Grewal Vs. Vimmi Joshi and Others, (2009) 120 FLR 773 : (2009) 1 JT 400 : (2009) 1 SCALE 54 : (2009) 2 SCC 210 : (2009) 1 SCC(L&S) 377 : (2009) 2 SLJ 351
  5. U.S. Verma, Principal and Delhi Public School Society Vs. National Commission for Women and Others, (2009) 163 DLT 557
  6. The Supreme Court, in D.S. Grewal Vs. Vimmi Joshi and Others, also noted the phenomenon of retaliatory allegations and inadequacy in following the Vishaka Guidelines while enquiring into a complaint of sexual harassment. A school teacher complained of sexual harassment against the Vice Chairman of the school management. Her services were terminated while she was still on probation. “In the meanwhile a purported enquiry was conducted” where “it was found to be not a case of sexual harassment.” However, the Vice Chairman was directed to be counseled. Retaliatory allegations of financial irregularities were made against the teacher by the school management. The teacher filed a writ petition questioning the legality of her termination and alleging sexual harassment. A Division Bench of the Uttarakhand High Court directed disciplinary action against the alleged harasser without getting the matter enquired. The Supreme Court relying on its decisions in Vishaka and AEPC, partially modified the order directing institution of a three member sexual harassment enquiry committee and imposed costs of Rs. 50,000/- on the alleged harasser.
  7. Additional District and Sessions Judge ‘X’ vs Registrar General High Court of Madhya Pradesh

Connected Rules :

  1. HandBook on ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
  2. Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines, 2015
  3. Report dt. 8/9/2014 reg. – Gender Sensitization Internal Complaints Committee (GSICC)
  4. Circular14022014 reg. on 9.12.2013 the first meeting of Supreme Court Gender Sensitization and internal Complaints Committee (GSICC) headed by Hori’ble Mrs. Justice Ranjana Prakash Desai was held in the Supreme Court’s premises to workout the modalities for the effective implementation of the “The Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013” and to take decision on related issues.
    Gazette_No38 – New Delhi, the 6th August 2013, No. F.26/2007-SCA~In exercise ofthe powers conferred by sub-clause (2) of Clause 1 of “The Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013”, the Chief Justice of India hereby appoints, the date of publication of the Regulations in the Official Gazette, as the date on which provisions of the said Regulations shall come in to force. By Order. RAJ PAL ARORA, Registrar.
  5. The Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013

Legal Articles on Sexual harassment @ http://www.advocatetanmoy.com

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Method of Inquiry in Sexual Harassment case as laid down by Delhi High Court

Primarily, in a sexual harassment complaint, the committee has to verify and analyse the capability of the aggrieved to depose before them fearlessly without any intimidation. If the Committee is of the view that the aggrieved is a feeble and cannot withstand any cross examination, the Committee can adopt such other measures to ensure that the witnesses statement is contradicted or corrected by the delinquent in other manner. The fair opportunity, therefore, has to be understood in the context of atmosphere of free expression of grievance. If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross examination of such witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely, the Committee can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement.

IN THE HIGH COURT OF DELHI AT NEW DELHI

LPA 305/2017 & CM No.15732/2017

Date of decision: 18th August, 2017

ASHOK KUMAR SINGH ….. Appellant
versus
UNIVERSITY OF DELHI & ORS ….. Respondent

CORAM:

HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

GITA MITTAL, ACTING CHIEF JUSTICE

1. The appellant before us has assailed the judgment dated 16th February, 2017 passed by the ld. Single Judge disposing of WP(C)No.7371/2016. By this writ petition under Article 226 of the Constitution of India, the petitioner had impugned three reports, two dated 30th June, 2015 and the third dated 12th February, 2016 which had been submitted by the Internal Complaints Committee (ICC hereafter) of the respondent no.2, that is, the Dyal Singh Evening  LPA No.305/2017 Page 2 of 15 College.

2. The ICC was constituted under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (referred to as “the Act” hereafter). The appellant had challenged the reports inter alia on the ground that the reports only give a prima facie conclusion of the complaint having substance without formally recording any definite conclusion or holding that the charge against the appellant stood proved. It was contended that these aspects were mandatorily required to be opined upon by the ICC under Section 13 (3) of the Act.

3. The appellant has further contended in the writ petition that in the inquiry committee proceedings which culminated in the two reports dated 30th June, 2015 and third report dated 12th February, 2016, the appellant was wrongfully denied opportunity to crossexamine the witnesses.

4. The other ground which was pressed before the ld. Single Judge was that in the inquiry proceedings conducted on the reports dated 30th June, 2015 and 12th February, 2016 upon complaints of respondents no.4 and 5, the petitioner was also not permitted to lead evidence in support of his defence. Primarily, it was contended that the inquiry reports were in gross violation of principles of natural justice as well as the essential requirements of law and therefore deserved to be set aside.

5. After a detailed consideration of the rival contentions, by the impugned judgment dated 16th February, 2017, the ld. Single Judge has concluded that all the three reports of the ICC, that is, the two LPA No.305/2017 Page 3 of 15 reports dated 30th June, 2015 and the third report dated 12th February, 2016, falls short of all the essential and mandatory requirements of sub-section (3) of Section 13 of the enactment inasmuch as they failed
to record a definite conclusion regarding the petitioner being guilty of commission of alleged acts. In other words, the ICC had failed to return any categorical finding that the charges against the appellant stood proved. For this reason, the ld. Single Judge held that the reports were in violation of sub section (3) of Section 13 of the Act, and set aside the reports.
We may note that this finding by the ld. Single Judge has not been assailed by the respondents and has attained finality.

6. We may note that the private respondents no.3 to 5 had been served with advance notice as caveators were present and represented by Ms. Vibha Mahajan, ld. counsel. Respondents no.3 to 5 were thus represented when the matter was first taken up and notice was issued to the respondent no.2. Mr. Rajiv B. Samaiyan, learned counsel has
put in appearance for the Dyal Singh Evening College respondent no.2, before us. With the consent of all parties, the matter has been taken up for hearing.
All counsels have been heard.

7. The appeal has been necessitated inasmuch as after recording
the above finding, the ld. Single Judge has remanded the matter for
consideration and drawing up fresh conclusions by the ICC. The ld.
Single Judge directed that so far as further proceedings before the ICC
were concerned, the ICC was simply directed “to give fresh inquiry
reports on the complaints of respondents no.3 to 5 of the writ
petition”. However, the ld. Single Judge did not agree with the prayer
of the appellant regarding not being granted sufficient opportunity
either for cross-examination of the witnesses or grant of the
opportunity to lead defence.

8. Denial of the opportunity to cross-examine the witnesses of the
complainant as well as to lead defence and the above directions to the
ICC has been assailed by the appellant before us on the ground that
the substantive report is wholly vitiated if he is denied the said
opportunity. It is submitted that a meaningful right to cross-examine
the witnesses of the complainant and to lead defence is an essential
component of a fair inquiry which would be in consonance with the
principles of natural justice. In support of the submission, Mr. Nikhil
Nayyar, learned counsel for the appellant has drawn our attention to
the pronouncement of this Division Bench reported at 2012 (130) DRJ
277 (DB) B.N. Ray vs. Ramjas College & Ors.

9. Having heard ld. counsels for the parties, reference can be made
to Section 11 of The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 which provide for
compliance with the provisions of natural justice. For expediency, the
provision is extracted as below:
“Section 11. …Provided further that where both the parties arc employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall he made available to both the parties enabling them to make representation against the findings before the Committee.”

10. We may also extract Rule 7 of the Sexual Harassment of LPA No.305/2017 Page 5 of 15
Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 which reads as follows :

“Rule 7. Manner of Inquiry into Complaint—
(4) The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice.”

11. The issue as to whether, in an inquiry under the said enactments, the respondent has a right to cross-examine the witnesses deposing before the ICC inquiring into a complaint of sexual harassment has been the subject of consideration in several cases
(subject to modulation of the procedure of cross-examination).

12. In an order dated 12.01.2010 passed in SLP(C)No.23060/2009, Bidyut Chakraborty (Prof.) v. Delhi University & Ors., the Supreme Court laid down the contours of hearing, cross examination and permissibility of defence to a respondent in a complaint of sexual
harassment in the following terms:
“After hearing the learned counsel for the parties we are of the opinion that the respondents are entitled to a hearing and to cross-examine the witnesses produced by
the University. We further direct that as this appears to be a case of sexual harassment the identity of the witnesses need not be revealed to the respondent or his
counsel and for this purpose the respondent would be entitled to submit the questionnaire which will be put to the witnesses for their answers in writing. Mr. Rao
states that the statements made by the witnesses without their names will be supplied to the respondents within two weeks from today. The said documents will also be
supplied to Ms. Binu Tamta, the Advocate-Commissioner who is being appointed by this court for the purpose of getting answers to the questions to be supplied by the
respondents. Ms. Tamta will ensure the anonymity of the witnesses. Mr.Rao, further states that the respondents would be entitled to produce their entire
defence evidence in addition to the aforesaid questionnaire and that all annexures which have not been supplied with the enquiry committee will also be
handed over to the respondent without revealing the identity of the witnesses.” (Emphasis supplied)

13. This court has also had occasion to deal with this same issue, the judgment reported at 2012 (130) DRJ 277 (DB), B.N. Ray v. Ramjas College & Ors., wherein placing reliance on Bidyut Chakraborty (Prof); it was observed thus :

“13. As regards cross examination of the witnesses, the learned Counsel for the respondents, stated that in view of the order passed by the Supreme Court in the case of Bigyug Chakraborty (Prof.) (supra), they have no objection to the witnesses answering the questions of the petitioner through a Local Commissioner, and for this purpose, the petitioner may submit a questionnaire as was directed to be done in the case of Bidyug
Chakraborty (Prof.) (supra). They also stated that as was done in the case of Bidyug Chakraborty (Prof.) (supra), the Sub-Committee would allow the petitioner to produce
defence witnesses and examine them himself, instead of their examination by the Committee subject, of course, to those witnesses being cross-examined by the
Presenting Officer/Department representative.
We take note of the fact that in Bidyug Chakraborty (Prof.) (supra), the Supreme Court upheld the right of the delinquent to cross examine the witnesses produced by the University and the delinquent was asked to submit a questionnaire to be put to the witnesses, so that the identity of the witnesses was not revealed to him or to his Counsel. It was precisely for this reason that the learned Counsel for the University undertook to supply the statement of witnesses to Professor Bidyug Chakraborty without disclosing their names. The Local Commissioner was also directed to ensure the anonymity of the witnesses. However, in the case before us, the Committee/Sub-Committee has already disclosed the names of the witnesses to the petitioner and has thereby revealed their identity to him. No useful purpose will, therefore, be served by asking the petitioner to submit a questionnaire, to be answered by the witnesses in writing.
Had the University not disclosed the identity of the witnesses to the petitioner as was done in the case of Bidyug Chakraborty (Prof.) (supra), the University would have been perfectly justified in asking for adopting the same procedure, which it was directed to adopt in the case of Bidyug Chakraborty (Prof.) (supra). But, no useful purpose from adopting such a course of action would be served in a case where the identity of the
witnesses has already been disclosed. However, even
while in requiring the petitioner to submit a
questionnaire containing questions to be answered by
the witnesses, we have to ensure that there is no
possibility of the witnesses getting influenced on
account of the presence of the petitioner at the time of
their cross-examination. In the case of Dr. Pushkar
Saxena (supra), we had directed that the witnesses may
be cross-examined through a female defence assistant,
and that the petitioner would submit a questionnaire,
giving the questions he wanted the witnesses to answer
and the answers to the questions will be obtained by the
Inquiry Committee. We also directed that the petitioner
would not be present at that time, if such a course of
action is adopted. In the case before us, we were
informed, during the course of the arguments, that all the
witnesses, who have yet to depose against the petitioner,
are male witnesses. Hence, instead of a female defence
assistant, they should be cross examined by a male LPA No.305/2017 Page 8 of 15
defence assistant but the petitioner should not be present at the time of their cross-examination.” (Emphasis supplied)

14. Our attention is also drawn to a judgment of the Kerala High Court reported at (2016) 2 KLJ 434, L.S. Sibu v. Air India Ltd. wherein the court discussed the statutory provisions holding as follows:

“12. The power of the ICC is also very clear from the
Section 15 itself. The Committee can also determine the
compensation payable by the delinquent to the victim.
Thus, it is very clear from Sections 11, 13 and 15, the
report of the ICC is the determining factor to take follow
up action by the employer in accordance with service
rules or otherwise.

13. In the background of legal provisions as above, every Internal Committee constituted under the Act 14 of 2013 necessarily, has to follow the principles of natural
justice in conducting their enquiry. The rules framed under the Act 14 of 2013 also would indicate that the Committee shall follow the principles of natural justice
[See the Rule 7(4)]. It is also specifically noted that Section 18 provides an appellate remedy as against the recommendation. This also would show that the
conclusive nature of the finding of the fact in the enquiry to be made by the ICC. Thus, it has to be summed up that the enquiry conducted by the ICC as to the fact finding is final unless it is varied in appeal. It cannot be varied by the employer in a follow up action to
be taken in terms of Section 13.”

“17. The fundamental principles relating to the principles of natural justice is that when a prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and  LPA No.305/2017 Page 9 of 15
contradict. In sexual harassment complaint, sometimes
the complainant may not have courage to depose all that
has happened to her at the work place. There may be an
atmosphere restraining free expression of victim’s
grievance before the Committee. The privacy and
secrecy of such victims’ also required to be protected. It
is to be noted that verbal cross examination is not the
sole criteria to controvert or contradict any statement
given by the aggrieved before any authority.”
(Emphasis supplied)

15. After so observing, with regard to a sexual harassment complaint, the court prescribed the following procedure :
“Primarily, in a sexual harassment complaint, the
committee has to verify and analyse the capability of the
aggrieved to depose before them fearlessly without any
intimidation. If the Committee is of the view that the
aggrieved is a feeble and cannot withstand any cross
examination, the Committee can adopt such other
measures to ensure that the witnesses statement is
contradicted or corrected by the delinquent in other
manner. The fair opportunity, therefore, has to be
understood in the context of atmosphere of free
expression of grievance. If the Committee is of the view
that the witness or complainant can freely depose
without any fear, certainly, the delinquent can be
permitted to have verbal cross examination of such
witnesses. In cases, where the Committee is of the view
that the complainant is not in a position to express
freely, the Committee can adopt such other method
permitting the delinquent to contradict and correct
either by providing statement to the delinquent and
soliciting his objections to such statement.”
(Emphasis by us)

These principles have to bind the present consideration.

16. Before us, further adjudication has become unnecessary because of the very fair stand adopted by learned counsels for the respondents as noted hereafter.

17. Section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 mandatorily requires that “inquiry under sub section (1) shall be completed within a period of 90 days”. In the present case, more than two years have passed before the impugned reports came to be submitted by the ICC.

18. It has been contended by Ms. Vibha Mahajan, learned counsel
for respondents no.3 to 5 that, in order to obviate any delay in the
consideration of the matter and for reasons of expediency, the
respondents no.3 to 5 would not have serious objection to the grant of
fair and reasonable opportunity to the appellant to cross-examine their
witnesses provided that the same was within a strict time stipulation
by this court.
Learned counsels for respondents no.1 and 2 also submit that they would not come in the way of grant of such opportunity.

19. In view of the submissions made on behalf of respondents no.3 to 5, we had requested all learned counsel for the respondents to examine the possibility of us taking such view which while meeting the requirements of law, dealt with objections and apprehensions of all the parties. We appreciate the exercise which has been undertaken by the learned counsels for the parties in enabling us to pass this order which meets the above. This order would enable the proceedings before the ICC to be completed meaningfully and expeditiously at the earliest and would comport with the requirements of law.

20. We may also note hereby that Mr. Rajiv B. Samaiyan, learned counsel appearing for respondent no.2 has handed over a copy of the order dated 9th May, 2017 which has been passed by Dr. D.K. Sharma, Principal of the Dyal Singh Evening College in supersession of the previous order dated 27th April, 2017 stating that the Chairman of the Governing Body of the College has constituted an Internal Complaining Committee afresh for a tenure of one year with effect from 27th April, 2017 in accordance with the requirements of the University Grants Commission Act. The following constitution of the
ICC has been thereby notified:
(i) Dr. Anju Sharma, Associate
Professor, Deptt. of Political Science,
Kalindi College & Dy. Dean,
Planning, DU – Presiding Officer
(ii) Dr. Sushma Bareja – Member
(iii) Dr. Sucheta Chaturvedi Associate
Professor, Department of English,
Laxmi Bai College, DU – Member
(iv) Sh. S. Shekhar Singh (Secretary, Staff
Council) – Member
(v) Mr. Sanjiv Sharma (Non-Teaching) – Member
(vi) Mr. R.S. Meena (Non-Teaching) – Member
(vii) Ms. Nikita Parmar (Lawyer, Delhi High Court) – Member

21. We may note that so far as inquiry proceedings before the ICC in the present case are concerned, inasmuch as they do not involve any complaint against the student, a student representative in the ICC is
not necessary.

22. Therefore, so far as proceedings before the ICC are concerned, with the consent of all the parties and in consonance with the principles laid down by the Supreme Court in Bidyut Chakraborty (Prof); this court in Bidyut Chakraborty (Prof) and Kerala High Court in L.S. Sibu, it is directed that ICC which is to proceed in terms of the judgment dated 16th February, 2017, shall proceed in the following manner :

(i) The inquiry in the three complaints made by the respondents no.3 to 5 shall begin within two weeks from today from the stage of cross-examination of the complainant’s witnesses whose examination-in-chief has been tendered in writing to the previous ICC.
(ii) The ICC shall intimate the appellant and the respondents no.3 to 5 in writing as well as by e-mail of the date and time of its proceedings.
(iii) The appellant would be allowed to cross-examine the witnesses of the complainant through a questionnaire which would be submitted to the ICC at the time when the witnesses are produced for their cross-examination.
(iv) The witnesses would be called one by one by the ICC to answer the questionnaire which is put to them. Witnesses would answer questionnaire in the presence of the Committee. Every  LPA No.305/2017 Page 13 of 15 effort shall be made by the ICC to complete the testimony of a single witness the very day on which the recording of the witness cross-examination commences.
(v) So far as witnesses who are common to several complaints are concerned, such common witness shall be cross-examined in one go when the witness appears before the ICC, in respect of all the complaints in which he/she is a witness.
(vi) The appellant and the complainant would not be present at the time when the cross-examination of the witnesses of the complainant is being recorded.
(viii) The ICC shall endeavour to ensure that the witnesses who are being cross-examined, does not confabulate with the witnesses who are yet to be cross-examined.
(ix) The ICC shall make every endeavour to supply a copy of the cross-examination of the complainants’ witnesses to the appellant on the date on which the cross-examination at the earliest, in any case before cross-examination of the next witness.
(x) After completion of the cross-examination of the complainants’ witnesses, the appellant would be permitted to lead defence evidence. The appellant shall submit the examination-in-chief of the defence witnesses to the ICC in writing within one week of completion of the cross-examination of the complainant’s witness. Copies of the statements of the appellant’s witnesses would immediately be made available to respondents no.3 to 5.
(xi) The procedure set out above for cross-examination of the of 15 witnesses of the complainant would be followed in identical terms so far as cross-examination of the appellant’s witnesses by the respondents no.3 to 5.
(xii) We need not to emphasise that the proceedings have to be expeditiously concluded. In the event any representation is made by the complainant under Section 12 of the enactment for any interim redressal, the same would be expeditiously decided by the ICC, preferably within one week of the representation.
(xiii) After completion of the cross-examination of the witnesses of the appellant, parties shall be given a personal hearing by the ICC.
(xiv) After consideration of recording of the inquiry and the submissions made by the parties, the ICC shall submit separate reports on each complaint along with their recommendations to the Competent Authority which is the Governing Body of the respondent no.2 within 3 days of the conclusion of the submissions.
(xv) For reasons of expediency, it is directed that the above procedure shall be strictly abided by the ICC.
(xvi) We also deem it necessary to direct that in any case any vacancy in Constitution of the ICC occurs, the same shall be filled within one week from the date when it has arisen. It is made clear that in such eventuality, the inquiry shall resume from the stage on which the erstwhile member of the ICC had left the Committee.
(xvii)It is directed that ICC shall complete the above exercise within  a total period of three months from today.
(xviii)In view of the above, while maintaining the order of the ld. Single Judge so far as findings recorded in para 8 of the judgment dated 16th February, 2017 is concerned, we hereby set aside the directions made in paras 11 and 12 which shall stand substituted by the directions recorded in para 22 hereinabove.

23. We also make it clear that we have not hereby decided the legal issues raised by the writ petitioner which are left open for consideration in an appropriate case. This appeal is disposed of in the above terms. The pending application also stands disposed of.

ACTING CHIEF JUSTICE
ANU MALHOTRA, J

AUGUST 18, 2017

Sexual violence and Medico-legal evidence

The Criminal Law Amendment Act 2013, in Section 357C Cr.PC says that both private and
public health professionals are obligated to provide treatment. Denial of treatment of rape survivors is punishable under Section 166 B IPC with imprisonment for a term which may extend to one year or with fine or with both.

REMINDER: Forensic evidence is likely to be found only upto 96 hours after the incident.Continue Reading

Vishaka and others Versus State of Rajasthan and others[ALL SC 2097 AUGUST]

KEYWORDS:-fundamental rights of working women -sexual harassment-

c

DATE:- 13-08-1997

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 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

AIR 1997 SC 3011 : (1997) 3 Suppl. SCR 404 : (1997) 6 SCC 241 : JT 1997 (7) SC 384 : (1997) 5 SCALE 453

(SUPREME COURT OF INDIA)

Vishaka and others Appellant
Versus
State of Rajasthan and others Respondent

(Before: J. S. Verma, C.J.I., Mrs. Sujata V. Manohar And B. N. Kirpal, JJ.)

Writ Petn. (Criminal) Nos. 666-70 of 1992, Decided on: 13-08-1997.

Constitution of India, 1950—Articles 14, 15, 19, 19(1)(g), 32, 253, 141 and 21—Protection of Human Rights Act, 1993—Section 2(d).

Counsel for the Parties:

Mr. F. S. Nariman, Sr. Advocate, Ms. Meenakshi Arora and Ms. Niti Dixit, Advocates with him, for Petitioners

Mr. T. R. Andhyarujina, Solicitor General, Mr. Mukul Mudgal, Ms. Suvira Lal, Mr. C. V. S. Rao, Mr. K. S. Bhati and Mr. M. K. Singh, Advocates with him, for Respondents.

Judgment

Verma, C.J.I—This writ petition has been filed for the enforcement of the fundamental rights of working women under Arts. 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard against such violations; and the resentment towards incidents of sexual harassment is also increasing. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focussing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of ‘gender equality’; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation.

2. The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. That incident is the subject-matter of a separate criminal action and no further mention of it, by us, is necessary. The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfil this felt and urgent social need.

3. 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 Arts. 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 Art. 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or business’. Such violations, therefore, attract the remedy under Art. 32 for the enforcement of these fundamental rights of women. This class action under Art. 32 of the Constitution is for this reason. A writ of mandamus in such a situation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Arts. 14, 19 and 21 are brought before us for redress under Art. 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.

4. The notice of the petition was given to the State of Rajasthan and the Union of India. The learned Solicitor General appeared for the Union of India and rendered valuable assistance in the true spirit of a Law Officer to help us find a proper solution to this social problem of considerable magnitude. In addition to Ms. Meenakshi Arora and Ms. Naina Kapur who assisted the Court with full commitment, Shri Fali S. Nariman appeared as Amicus Curiae and rendered great assistance. We place on record our great appreciation for every counsel who appeared in the case and rendered the needed assistance to the Court which has enabled us to deal with this unusual matter in the manner considered appropriate for a cause of this nature.

5. Apart from Art. 32 of the Constitution of India, we may refer to some other provisions which envisage judicial intervention for eradication of this social evil. Some provisions in the Constitution in addition to Arts. 14, 19(1)(g) and 21, which have relevance are:

Article 15:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-

(1) The State shall not discriminate against any citizen on only of religion, race, caste, sex, place of birth or any of them.

(2) **********

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) **********

Article 42:

“42. Provision for just and humane conditions of work and maternity relief – The State shall make provision for securing just and humane conditions of work and for maternity relief.”

Article 51A:

“51A. Fundamental duties.- It shall be the duty of every citizen of India;-

(a) to abide by the Constitution and respect its ideals and institutions, . . .

**********

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

**********”

6. Before we refer to the international conventions and norms having relevance in this field and the manner in which they assume significance in application and judicial interpretation, we may advert to some other provisions in the Constitution which permit such use. These provisions are:

Article 51:

“51. Promotion of international peace and security.- The State shall endeavour to-

**********

(c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and

**********”

Article 253:

“253. Legislation for giving effect to international agreements.- Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

Seventh Schedule:

“List I – Union List:

**********

14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.

**********”

7. 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 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 implicit from Art. 51(c) and the enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Art. 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It 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.

8. Thus, the power of this Court under Art. 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest.

9. 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.

10. Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The International Conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.

11. The obligation of this Court under Art. 32 of the 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 Judiciary in the LAWASIA 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:

(a) to ensure that all persons are able to live securely under the Rule of Law;

(b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and

(c) to administer the law impartially among persons and between persons and the State.”

12. Some provisions in the ‘Convention on the Elimination of All Forms of Discrimination against Women’, of significance in the present context are:

Article 11:

“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(a) The right to work as an inalienable right of all human beings;

**********

(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

**********”

Article 24:

“States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognised in the present Convention.”

13. The general recommendations of CEDAW in this context in respect of Art. 11 are:

“Violence and equality in employment:

22. Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the work place.

23. Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided.

24. States should include in their reports information about sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the work place.”

The Government of India has ratified the above resolution on June 25, 1993 with some reservations which are not material in the present context. At the Fourth World Conference on Women in Beijing, the Government of India has also made an official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women’s to act as a public defender of women’s human rights; to institutionalise a national level mechanism to monitor the implementation of the Platform for Action. We have, therefore, no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our Constitution.

14. The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. Independence of judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court of Australia in Minister for Immigration and Ethnic Affairs v. Teoh, 128 ALR 353, has recognised the concept of legitimate expectation of its observance in the absence of a contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia.

15. In Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 , 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 a public law remedy under Art. 32, distinct from the private law remedy in torts. There is no reason why these international conventions 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.

16. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Art. 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Art. 141 of the Constitution.

The guidelines and norms pre-scribed herein are as under:-

Having regard to the definition of ‘human rights’ in S. 2(d) of the Protection of Human Rights Act, 1993,

Taking note of the fact that the present civil and penal 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.

It is necessary and expedient for 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:

1. Duty of the Employer or other respon-sible persons in work places 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.

2. Definition:

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

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

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

Where any of these acts is committed in circumstances whereunder 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 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.

3. Preventive Steps:

All employers or persons 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 following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings:

Where such conduct amounts to a specific offence under the Indian Penal Code 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 ensure 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.

5. 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.

6. Complaint Mechanism:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an 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 bound treatment of complaints.

7. Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a 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 NGO or 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 report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:

Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness:

Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

10. Third Party Harassment:

Where sexual harassment occurs as a result of an act or omission by 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.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.