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Introduction

Despite numerous harsh laws protecting women's safety intended to stop their fragile and deteriorating situation, incidences of violence against women, outraging their modesty, sexual harassment, rape, etc. are rapidly rising every day. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, has given fascinating insights into how Indian companies handle, control, and frequently disregard gender-based issues during the course of its five years of implementation. There is a lot of space for improvement in this relatively new piece of legislation. Like any other law, its jargonistic phrasing makes it difficult for everyone to comprehend all the nuances of its intent and how they apply to diverse situations in everyday life. The likelihood of gaining a deeper understanding of the legislation's numerous provisions grows along with the implementation of the law and its regulations. In this article, We'll talk about examples of sexual harassment that significantly affected the law and influenced how victims were treated when seeking justice.

Shanta Kumar v. Council of Scientific and Industrial Research (CDIR) & Ors, Delhi High Court ((2018) 156 FLR 719)

Facts

The third respondent entered the lab while the petitioner was working there, shut off all of the equipment, forced her out, and locked the door. The respondent allegedly used offensive language, according to the petitioner. After reviewing the complaint, the committee came to the conclusion that it was administrative and managerial in nature rather than sexual. The Disciplinary Authority accepted the contested report, which was then being contested. Shanta Kumar filed a writ suit with the Delhi High Court contesting the Complaint Committee's actions and the Disciplinary Authority's ruling clearing the Respondent of the sexual harassment claims brought against him. The petitioner argued that the Complaint Committee's report lacked critical thought. The third respondent had touched the petitioner's arm, and it was argued that any unwanted physical contact constituted sexual harassment.

Held

The Court implied that as long as a physical touch or approach is made in the course of sexually suggestive behaviour, it constitutes sexual harassment. Even if unwanted, a simple incidental touch would not constitute sexual harassment. Even if the occurrence in question was derogatory in nature, it would not meet the criteria for sexual harassment in this case.

Ruchika Singh Chhabra v. Air France India and Anr. (2018 SCC Online Del 9340)

A survey by the Indian National Bar Association reveals that most companies do not follow the Vishaka Guidelines. Most respondents of the survey, who were victims, said their companies do not adhere to these guidelines. The honorable Delhi High Court has also taken note of the situation. Stanislas Brun, a French national and the current managing director of Air France, testified during the hearing of a petition made by Ruchika Singh Chhabra, a former employee of Air France who had accused another employee of sexual harassment. 

The Court further stated that a complainant who displays the courage to speak out against unacceptable behavior, regardless of the perpetrator, is not merely a target of sympathy or pity and that, in one instance, a permissiveness or infraction in implementation suggests that the employer lacks the desire or capacity to ensure such safety and equality at its workplace.

This court wants to make it clear that the Vishaka Guidelines should be followed seriously and not merely as a ritual. The path-breaking Workplace Harassment Prohibition Act, passed more than 17 years after the Vishaka (supra) case, marked the culmination of our society's march toward understanding and sensitivity to the problem of sexual harassment and its detrimental effects. Horror stories of all types of sexual harassment of female coworkers at various workplaces continue to shook the world even today. In order to maintain justice and make sure that no one is subjected to unwanted and inappropriate behavior, decision-makers, Parliament, courts, and employers must exercise constant vigilance in ensuring that effective policies are rapidly and impartially enforced. Unlike isolated instances of individual indiscipline, which are dealt with on a regular basis, employers have a main responsibility to see that these laws and regulations, intended to provide a safe workplace for their female employees, are implemented. An employer's unwillingness or incapacity to provide such safety and equality at the workplace is implied by a permissiveness or infringement in execution in one instance. 

Avinash Mishra v Union of India (Delhi High Court, 2014 (215) DLT 714)

Facts

A female officer accused the petitioner of sexual harassment. The petitioner has contested the proceedings on the grounds that he was not given the opportunity to cross-examine the witnesses during the ICC proceedings, nor were the witness statements provided to him.

Held

According to the court's ruling, both the method used to reach a conclusion and the materials themselves must be treated fairly, sensibly, and objectively. Cross-examining witnesses shouldn't be forbidden, save in rare circumstances where doing so would put the victim or the security in danger. The investigation itself was tainted by the method used, which in this case barred the chance to question the witnesses on the stand. Natural justice holds that the right to cross-examine witnesses is an essential component, thus the petitioner argued that the Committee's method failed to provide him with this fundamental right. violating the Constitution's Article 14 in the process.

Saikuttan ON vs Kerala State Electricity Board Ltd and Ors Bench – High Court of Kerala at Ernakulum Decision dated – August 11, 2020

Facts

The petitioner was employed by Kerala State Electricity Board ("KSEB") as a Driver (Grade 1) at Cherthala's Electrical Division. The Petitioner challenged his transfer order dated May 7, 2020 to Kalamassery Operation Circle in a petition filed with the High Court, claiming that the order was a form of retaliation for reporting irregularities and that the move during a pandemic poses a health risk. Additionally, the petitioner claimed that moving from their current site would not be in the public interest or be required by any administrative necessity.

The primary defence offered by KSEB was that the transfer decision was based on a complaint made against the petitioner by a senior female officer under the POSH Act, who claimed that the petitioner had harassed her and three other female employees. The senior female officer and three other female employees were made to wait in a store's verandah for more than an hour after performing their official duties because the petitioner—the driver of the official vehicle—did not return their calls. This was the basis of the complaint brought before the ICC. They had to call a departmental vehicle from another office because the petitioner didn't even bother to return their calls, and they returned to the office at 9 PM. The transfer order that was granted as an interim measure under Section 12 of the POSH Act is correct and valid, the KSEB said, because the case against the Petitioner was still ongoing before the ICC established under the POSH Act to handle this sexual harassment matter.

Judgement

The High Court made it abundantly clear from the outset that the law regarding the transfer of employees is extremely clear and settled, and that a change in employment status is an incident of service. As a result, courts are not required to interfere with such transfer orders unless they are made illegally or are made with malice. Therefore, the only issue that the High Court considered was whether or not the petitioner's move was justified.

The court examined the KSEB’s argument based on Section 12 of the POSH Act:

During the pendency of an inquiry, on a written request made by the aggrieved woman, the internal committee of the local committee, as the case may be, recommend the employer to:

1. Transfer the aggrieved woman or the respondent to any other workplace; or

2. Grant leave to the aggrieved woman for upto 3 months; or

3. Grant such other relief to the aggrieved woman as prescribed. 

Silajit Guha vs Sikkim University and Ors Bench: High court of Sikkim Decision dated: August 20, 2020

Facts

A professor at Sikkim University ("Petitioner") filed a writ suit before the High Court of Sikkim against the university, its IC, its executive authority, and the female student ("Respondents") who reported him for sexual harassment.

Issues

1. The IC lacks jurisdiction because one of the instances complained of occurred at a wedding celebration held at a hotel, which is not a workplace as defined by Section 2(o) of the 2013 POSH Act. He argued that the phrase "workplace" cannot have a broad definition, and he based this claim on the Delhi High Court's decision in Saurabh Kumar Mallick vs. Comptroller & Auditor General of India & Anr.

2. The investigation procedure was improper because he was denied the opportunity to conduct cross examination.

3. Because it was not issued in accordance with section 8 of the University Grants Commission (Prevention, Prohibition and Redress of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015, the termination order is unlawful (UGC Regulation).

Held

A thorough study of all the provisions of Regulation 8's subclauses reveals that the Executive Authority was unable to dismiss the petitioner on the ICC's advice prior to the thirty days he had under Regulation 8(5) to file an appeal. This court believes that his termination order should be suspended while the appeal is pending before the Executive Council until the outcome of the appeal is known.

Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Ors. Decision dated: November 27, 2020

Issues

Consideration was given to the validity of a complaint made against a "Respondent" who shares the same gender as the complainant. The complainant and respondent in this instance were both women.

Judgement

1. A cursory glance at Section 2(m) of the 2013 Act shows that the term “respondent” brings within its fold “a person”, thereby including persons of all genders.

2. There is nothing in Section 9 of the 2013 Act (on filing a complaint of sexual harassment) to preclude a same-gender complaint under the Act.

3. Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized.

4. Definition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective. Sexual harassment, as contemplated in the 2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act.

5. A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.

6. Similarly, if Section 3 (2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se.

Prasad Pannian v. The Central University of Kerala and Ors.

Facts

The petitioner argued that, notwithstanding the possibility of harassment, there was no evidence of sexual harassment in the complaint's accusations and that a simple sex difference between two people does not constitute sexual harassment.

Sexual harassment, according to the complainant, can manifest itself in various ways. The legal definition of sexual harassment is not all-inclusive. Therefore, sexual harassment can also be used to describe any sort of sexual intimidation, discrimination, or conduct that tends to draw harassment solely because of sex differences.

Held

1. Section 2 (n) is an inclusive definition and only a few unwelcoming acts or behaviour had been mentioned at sub-clauses (i) to (v). There might be other instances as well. Any such behaviour which is unwelcome could be either direct or indirect.

2. Sub-clauses (i) to (v) are only instances of unwelcome acts or behaviour, but while interpreting a statute, we will have to derive the meaning of the word “sexual harassment” taking into account sub-clauses (i) to (v) as well. Sub-clauses (i) to (v) are all illustrations. It is possible that there might be other unwelcome acts or behaviour which would amount to a sexual advance or demand which the woman feels to be annoyed on account of the fact that she is a woman.

3. But when an allegation of sexual harassment is made, though not coming within the parameters as specified in sub-clauses (i) to (v), the act should have something to do with a sexual advance either directly or by implication.

4. Section 3 creates an absolute prohibition to subject a women to sexual harassment at workplace. The purport of Section 3(2) is that, if any of the eventualities mentioned under clauses (i) to (v) or any other circumstances occur, it should be in relation to or connected with any act or behaviour of sexual harassment.

5. In order to constitute sexual harassment, definitely there should be an attempt on the part of the wrongdoer to do some act which was unwelcome or by way of behaviour, either directly or by implication makes the victim to feel that it amounts to sexual harassment.

The Law does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment in the workplace.

References

1. https://www.ungender.in/posh-act-11-lessons-from-judgments-sexual-harassment-cases-since-2013/

2. https://www.casemine.com/judgement/in/5811803b2713e179479885e5

3. https://indiankanoon.org/doc/94264171/

4. https://www.lawyerservices.in/Silajit-Guha-Versus-Sikkim-University-and-Others-2021-07-03

5. https://indiankanoon.org/doc/185631270/

6. https://www.casemine.com/judgement/in/5fde39189fca197dae6b2239