3

10.  Consequences of making a false or malicious complaint¹⁵: If the IC/ LC concludes that the allegation made by the aggrieved woman is false/ frivolous/ malicious/ complaint has been made knowing it to be untrue/ forged/ misleading information has been provided during the inquiry, then, in that case, disciplinary action in accordance with the service rules of the organization can be taken against such complainant and if service rules don’t exist, then in such manner as may be prescribed under the POSH Rules.
11.  Confidentiality¹⁶: The Act prohibits the publication or making known the contents of a complaint and the inquiry proceedings due to the sensitivity attached to the matters related to sexual harassment. Any breach of confidentiality will result in specific consequences. Furthermore, the POSH Act specifically stipulates that information pertaining to workplace sexual harassment shall not be subject to the provisions of the Right to Information Act, 2005.
12.  Consequences of non-compliances¹⁷: Contravention of the provisions of the POSH Law, including failure to constitute the IC, will attract a penalty of INR 50,000 on the employer. Repetition of the same offense could result in the punishment being doubled and/ or de- registration of the entity or revocation of any statutory business licenses. It is pertinent to note here that any offense committed under the POSH Law shall be non-cognizable¹⁸.

1.  IPC: Before the introduction of POSH Act, there was no statutory remedy available that directly addressed workplace sexual harassment except the IPC. The only sections of the IPC that can be applicable to sexual harassment at the workplace (which makes it a criminal case) are herein below:
2. 1.  Section 294: ‘Whoever, to the annoyance of others-,
      1. does any obscene act in any public place, or
      2. sings, recites, and utters any obscene songs, ballads, or words, in or near any public space,  shall be punished with imprisonment of either description for a term that may extend to 3 months, or with fine, or with both.’

International conventions to protect women against violence had been in place for a long while. The Vishaka Guidelines drew from few of them in the following ways:

1. General recommendation 19 to the “Convention on the Elimination of All Forms of Discrimination against Women” (“CEDAW”): It directs the state parties to take appropriate measures to eliminate discrimination against women in all fields, specifically including equality under law, in governance and politics, the workplace, education, healthcare, and in other areas of public and social life (Article 7-16).

India, which is a party to this convention, has taken inference from its aspects of equality of women in the workplace, gender-specific violence, and unwelcome sexually determined behavior and adopted them into the POSH Act.

2. International Labour Convention on Discrimination (Employment and Occupation) Convention (No. C111): The ILO Committee of Experts on the Application of Conventions and Recommendations has confirmed that sexual harassment is a form of sex discrimination covered by the Discrimination (Employment and Occupation) Convention (No. C111) of 1958. The ILO Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits sexual harassment in the workplace.

1. VISHAKA JUDGEMENT

The framework for the sexual harassment at workplace law was for the very first time laid down in the Vishaka Judgement on August 13, 1997 by the Supreme Court. This is a case which deals with the evil of sexual harassment of a woman at her workplace and the incident revealed the hazards to which a working woman are exposed across the country, everywhere and everyday irrespective of their location and the urgency for safeguards to be carried out.

 Facts: The facts of the case are herein below:

• • In 1992, Bhanwari Devi, a dalit woman, was engaged as a social activist/ worker employed with the rural development program of the government of Rajasthan;
  • Under one of the social development programs administered by the state of Rajasthan for stopping child marriages, Bhanwari Devi endeavored to stop the marriage of one-year-old child in the community, however, she failed to do so;
  • Later, she was brutally gang-raped at her workplace as revenge by the men of that community;
  • Bhanwari Devi reported this brutal incident to the local authority(ies) but no action was taken;
  • A Public Interest Litigation (“PIL”) was filed by Vishaka, a women’s welfare group and other women groups (“NGOs”), based on the facts of Bhanwari Devi’s case, against the state of Rajasthan and Union of India before the Supreme Court to enforce the fundamental rights of working women under Articles 14¹⁹, 19²⁰ and 21²¹ of the Constitution, in view of the prevailing climate in which the violation of these rights is not uncommon;
  • The primary objective to bring out such action to the Supreme Court by the social activists and NGOs was to find a suitable method for the realization of the true concept of ‘gender equality' at the workplace for women, focusing attention towards societal aberration, and preventing sexual harassment of working women in all workplaces through the judicial process, to fill the vacuum in existing legislation.

 Hon’ble Supreme Court views and observations:

• • Sexual harassment at the workplace is violative of the constitutional rights of women (including rights of equality, to practice any profession and right to life with dignity) and are discriminatory towards women. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women.
  • 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, the instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.

• • Apart from Article 32 of the Constitution, there is a need to refer to some other provisions which envisaged judicial intervention for eradication of this social evil. Some provisions in the Constitution in addition to Articles 14, 19, 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. Nothing in this article shall prevent the State from making any special provision for women and children;

“42. Provision for just and humane conditions of work and maternity relief- The State shall make a provision for securing just and humane conditions for work and 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……..

(b) 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;

1. Before we refer to the international conventions and norms having relevance in this field and the manner in which they assume significance in the 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 endeavor to:

(c) foster respect for international law and treaty obligations in the dealings of organized 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 any other body.”

Seventh Schedule:

“List 1: Union List:

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

• 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 Articles 14, 15, 19 and 21 of the Constitution and safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirits must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee;
• The Court shall consider the progress made at each hearing culminated while formulation of the guidelines and norms to govern the behavior of the employers and all others at the workplaces to cub this social evil;
• Gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized 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 the abovesaid purpose;

• Considering the significance in the present context, the Court has placed a reliance on some provisions present in the CEDAW, for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in the Constitution, which are reproduced herein below:

Article 11:

“(1) State 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 of protection of health and to safety in working conditions, including the safeguarding of the function of reproduction;

Article 24:

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

Thus, the general recommendations of CEDAW in this context in respect of Article 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 workplace;
23. Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advances, sexually colored 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 disadvantages her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaint 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 workplace.”

• The Government of India has ratified the above resolution on June 25, 1993 with some reservations which are not material in the present context.

 Hon’ble Supreme Court Decision: In light of the above observations, the Supreme Court, in this case had held the following on 13^th August 1997:

• In view of the absence of the enacted law, either civil law or penal 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 and the enactment of such specific legislation will take considerable time, the Supreme Court laid 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 was done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it was further emphasized that this would be treated as the law declared by the Supreme Court under Article 141 of the Constitution.
• The guidelines and norms prescribed/ the Vishaka Guidelines, which would have to be mandatorily followed by the employers in workplaces, both in private and government sector, to provide for a mechanism to redress grievances relating to sexual harassment at workplace. It was also stated that the Vishaka Guidelines do not prejudice any rights available under the Protection of Human Rights Act, 1993.

THE KEY FEATURES OF THE VISHAKA GUIDELINES ARE HEREIN BELOW:

1. 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 the steps required;
2. Definition of ‘sexual harassment’ has been prescribed: ‘Sexual Harassment’ includes such unwelcome sexually determined behavior

(whether directly or by implication) as:

1. 1. Physical contact and advances;
   2. A demand or request for sexual favors;
   3. Sexually colored remarks;
   4. Showing pornography;
   5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
2. Preventive steps to be followed: All employers or persons in charge of workplace, whether in the public or private sector are under a responsibility to take appropriate steps to prevent sexual harassment;
3. Criminal proceedings could be initiated in case of specific offence: 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 the 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;
4. Disciplinary action could be taken: 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;
5. Establishment of appropriate complaint mechanism: Whether or not such conduct constitutions 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 compliant mechanism should ensure the time bound treatment of complaints;
6. Constitution of Complaints Committee: The Complaints Committee to be formed which will look into the matters of sexual harassment of women at workplace. The Complaints Committee was mandated to be headed by a woman employee, with not less than half of its members being women and provided for the involvement of a third party person/ NGO expert who is familiar with the issue of sexual harassment, to prevent the possibility of any undue pressure or influence from senior levels and on the complainant
7. Submission of annual report: The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them.
8. The employers and person in charge will also report on the compliance with the aforesaid guidelines including the reports of the Complaints Committee to the government department;
9. Workers’ initiative: Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in any other appropriate forum and should be affirmatively discussed in employer – employee meetings;

10. 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;
11. Third party harassment: When these incidences occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all necessary and reasonable steps to assist the affected person in terms of support and preventive action.

2. P OST VISHAKA DEVELOPMENTS

1. Apparel Export Promotion Council v. A.K. Chopra²²

• • The first case before the Supreme Court after Vishaka Judgement in this respect was the case of Apparel Export Promotion Council v. A.K. Chopra. In this case, the Supreme Court reiterated the law laid down in the Vishaka Judgement and upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council, who was found guilty of sexually harassing a subordinate female employee at the work place. In this judgement, the Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment;
• • The Supreme Court explained that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favors and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee and unreasonably interfering with her work performance, i.e. was capable of being used for affecting her employment or work including recruiting or promotion or had the effect of creating an intimidating or when it creates a hostile working environment for her. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.”

2.  Medha Kotwal Lele & Ors. v. Union of India & Ors.²³

• • Several petitions had been filed before the Supreme Court by the NGOs, basis the note prepared by the Registrar General highlighted a number of sexual harassment cases stating that the complaints committee were not formed in accordance with the Vishaka Guidelines and that the said petitions fell under clause (6) of the PIL guidelines given by the Supreme Court, i.e. “Atrocities of Women” and in any event the Vishaka Guidelines were not being followed. Thereupon, the Supreme Court treated the petitions as writ petitions filed in the public interest, took cognizance and undertook the monitoring mechanism of implementation of the Vishaka Guidelines across the country by directing the state governments to file affidavits emphasizing on the steps taken by them to implement the Vishaka Guidelines;
• • In its judgement, the Apex Court observed that “the implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available a safe and secure environment for women at work place in every aspect and thereby enabling working women to work with dignity, decency and due respect.”
• • Not being satisfied with the implementation of the Vishaka Guidelines, it directed the states to put in place sufficient mechanism to ensure effective implementation of the Vishaka Guidelines. Finally, the Supreme Court asserted that in case of a non-compliance or non-adherence of the Vishaka Guidelines, it would be open to the aggrieved persons to approach the respective High Courts. The Apex Court also directed that the complaints committee as envisaged in the Vishaka Guidelines will be deemed to be an inquiry authority for the purposes of Central Civil Rules, 1964 and the report of the complaints committee will be deemed to be an inquiry report under those rules. It was directed that similar amendments shall also be carried out in The Industrial Employment (Standing Orders) Rules.