Sexual Harassment at the Workplace

In one line

The Supreme Court wrote the rules in 1997 because Parliament had not, and Parliament wrote them in 2013 because the Court's rules had not been built.

In the wording a student can write in an exam: in Vishaka v. State of Rajasthan the Supreme Court, finding no domestic law on the subject and invoking articles 14, 15, 19(1)(g) and 21 with India's obligations under the Convention on the Elimination of All Forms of Discrimination against Women, laid down binding guidelines for the prevention and redressal of sexual harassment at the workplace, to hold the field until legislation was made. In Apparel Export Promotion Council v. A.K. Chopra the Court held that physical contact is not a necessary ingredient. In Medha Kotwal Lele v. Union of India, fifteen years after Vishaka, it found the machinery largely unbuilt and issued further directions. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 then replaced the guidelines with thirty sections: a definition in section 2(n), a prohibition in section 3, an Internal Committee in every workplace under section 4, a Local Committee in every district under sections 5 to 7, a complaint procedure in sections 9 to 18, and the duties of the employer in section 19.

Vishaka and the sixteen years

Vishaka, 1997. The Court held that sexual harassment at the workplace violates the fundamental rights to equality under articles 14 and 15, to practise any profession or carry on any occupation under article 19(1)(g), and to life with dignity under article 21; that in the absence of domestic law an international convention consistent with the fundamental rights may be read into them; and that the guidelines it laid down would be binding and enforceable under article 32 until suitable legislation was enacted. It is worked in [The Judiciary as an Engine of Social Change].

A.K. Chopra, 1999. Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759, decided 20 January 1999 by Dr Anand CJ with Khare J. A superior officer was found by a departmental inquiry to have tried to molest a woman subordinate and was removed; the High Court set the removal aside because no physical contact had been established and an attempt was said not to justify dismissal.

Held. The removal was restored. PHYSICAL CONTACT IS NOT A NECESSARY INGREDIENT of sexual harassment at the workplace: conduct that is unwelcome and of a sexual nature is misconduct whether or not contact occurs. The High Court erred in reappreciating the evidence, in substituting its own view of the punishment for the disciplinary authority's, and in approaching a departmental inquiry as though it were a criminal trial.

Medha Kotwal Lele, 2012. Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297, decided 19 October 2012 by Lodha, Dave and Gogoi JJ. A petition alleging non-implementation of the Vishaka guidelines, fifteen years on. The Court found that several States and Union Territories had constituted no Complaints Committee at all, and others only one for an entire State.