REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (CRIMINAL) NOS. 173-177 OF 1999
Medha Kotwal Lele and Others …… Petitioners
Vs.
Union of India and Others ……Respondents
WITH
T.C. (C) NO. 21 OF 2001
CIVIL APPEAL NO. 5009 OF 2006
CIVIL APPEAL NO. 5010 OF 2006
JUDGMENT
R.M. LODHA, J.
The Vishaka[1] judgment came on 13.8.1997. Yet,15 years after
the guidelines were laid down by this Court for the prevention and
redressal of sexual harassment and their due compliance under Article 141
of the Constitution of India until such time appropriate legislation was
enacted by the Parliament, many women still struggle to have their most
basic rights protected at workplaces. The statutory law is not in place.
The Protection of Women Against Sexual Harassment at Work Place Bill, 2010
is still pending in Parliament though Lok Sabha is said to have passed that
Bill in the first week of September, 2012. The belief of the Constitution
framers in fairness and justice for women is yet to be fully achieved at
the workplaces in the country.
2. This group of four matters – in the nature of public interest
litigation – raises principally the grievance that women continue to be
victims of sexual harassment at workplaces. The guidelines in Vishaka1 are
followed in breach in substance and spirit by state functionaries and all
other concerned. The women workers are subjected to harassment through
legal and extra legal methods and they are made to suffer insult and
indignity.
3. Beijing Declaration and Platform for Action, inter alia,
states, “Violence against women both violates and impairs or nullifies the
enjoyment by women of human rights and fundamental freedoms……. In all
societies, to a greater or lesser degree, women and girls are subjected to
physical, sexual and psychological abuse that cuts across lines of income,
class and culture”.
4. Vishaka guidelines require the employers at workplaces as well
as other responsible persons or institutions to observe them and ensure
the prevention of sexual harassment to women. These guidelines read as
under :
“1. 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.
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 workplace 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 workplace 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 workplaces and no
woman employee 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 members 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.”
5. In these matters while highlighting few individual cases of
sexual harassment at the workplaces, the main focus is on the lack of
effective implementation of Vishaka guidelines. It is stated that the
attitude of neglect in establishing effective and comprehensive mechanism
in letter and spirit of the Vishaka guidelines by the States as well as
the employers in private and public sector has defeated the very objective
and purpose of the guidelines.
6. In one of these matters, Medha Kotwal Lele, this Court has
passed certain orders from time to time. Notices were issued to all the
State Governments. The States have filed their responses. On 26.4.2004,
after hearing the learned Attorney General and learned counsel for the
States, this Court directed as follows :
“Complaints Committee as envisaged by the Supreme Court in its
judgment in Vishaka’s case will be deemed to be an inquiry
authority for the purposes of Central Civil Services (Conduct)
Rules, 1964 (hereinafter called CCS Rules) and the report of the
complaints Committee shall be deemed to be an inquiry report
under the CCS Rules. Thereafter the disciplinary authority will
act on the report in accordance with the rules.”
This Court further directed in the order dated 26.4.2004 that similar
amendment shall be carried out in the Industrial Employment (Standing
Orders) Rules. As regards educational institutions and other
establishments, the Court observed that further directions would be issued
subsequently.
7. On 17.1.2006, this Court in couple of these matters passed the
following order:
“These matters relate to the complaints of sexual harassment in
working places. In Vishaka vs. State of Rajasthan, (1997) 6SCC
241, 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.
Counsel appearing for each State shall furnish the details as
to what steps have been taken in pursuance of this direction
within a period of eight weeks. Details may be furnished as
shown in the format furnished by the petitioners in the
paperbooks. A copy of this format shall form part of the order.
The above facts are required at the next date of hearing. A
copy of this order be sent to the Chief Secretary and Chief
Labour Commissioner of each State for taking suitable action.”
8. From the affidavits filed by the State Governments the
following position emerges in respect of each of these States:
GOA
The amendments in the Civil Services Conduct Rules and the Standing
Orders have not been made so far.
GUJARAT
No amendments in the Civil Services Conduct Rules and the Standing
Orders have been made so far. It is not stated that all Complaints
Committees are headed by women. There is no information given whether in
such committees NGO members have been associated.
NCT OF DELHI
The amendments in the Civil Services Conduct Rules have been made.
The position about amendments in the Standing Orders has not been
clarified. It has not been specified that all Complaints Committees are
headed by women.
HIMACHAL PRADESH
There is nothing to indicate that the State of Himachal Pradesh has
made amendments in the Civil Services Conduct Rules and the Standing
Orders. No details of formation of Complaints Committees have been given.
HARYANA
The amendments in the Government Employees (Conduct) Rules, 1966 have
been made. However, it is not specified that the amendments in Standing
Orders have been made.
MAHARASHTRA
Necessary amendments in Maharashtra Civil Services (Conduct) Rules,
1974 have been made. The Labour Commissioner has taken steps for amending
Mumbai Industrial Employment (Permanent Orders) Rules, 1959.
MIZORAM
The State of Mizoram has amended Civil Services Conduct Rules and also
constituted Central Complaints Committee to look into complaints pertaining
to cases of sexual harassment of working women at all workplaces for
preservation and enforcement. A notification has been issued giving
necessary directions to all private bodies.
SIKKIM
The amendments in the Civil Services Conduct Rules have been carried
out and a notification has been issued for constitution of complaints
committees by departments/institutions with 50 or above staff to look into
sexual harassment of women at workplaces.
UTTARANCHAL
The State of Uttaranchal has carried out amendments in Civil Services
Conduct Rules as well as the Standing Orders. The District Level and State
Level Complaints Committees have been constituted.
WEST BENGAL
The amendments in the Rules relating to duties, rights and
obligations of government employees have been made. The amendments in the
Standing Orders have been carried out. Out of 56 departments of Government
of West Bengal, Complaints Committees have been formed in 48 departments
and out of 156 Directorates under the Government, Complaints Committees
have been formed in 34 Directorates. Of 24 institutions under the
Government, Complaints Committees have been formed in 6.
MADHYA PRADESH
Although State of Madhya Pradesh has made amendments in the Civil
Services Conduct Rules but no amendments have been made in the Standing
Orders. The Complaints Committees have been constituted in every office of
every department right from the Head of the Department level to the
District and Taluka level. The District Level Committees have been
constituted under the chairmanship of the District Collector. The steps
taken by the District Committees are monitored by the nodal departments.
PUNJAB
The State of Punjab has carried out amendments in the Civil Services
Conduct Rules as well as the Standing Orders. 70 Complaints Committees have
been constituted at the headquarters of different Directorates and 58
Complaints Committees have been constituted in various Field Offices.
ORISSA
No amendments in the Civil Services Conduct Rules and the Standing
Orders have been made.
ANDHRA PRADESH
Amendments in the Civil Services Conduct Rules and in the Standing
Orders have been made.
KARNATAKA
The amendments in the Civil Services Conduct Rules have been made by
the State of Karnataka but no amendments have been made in the Standing
Orders. It is stated that in most of the committees, the number of women
members is above 50%. The Chairpersons are women and in most of the
committees, an outside member, i.e., an NGO has been associated.
RAJASTHAN
The State of Rajasthan has carried out amendments in the Civil
Services Conduct Rules but no amendments have been carried out in the
Standing Orders.
BIHAR
The State of Bihar has made amendments in the Civil Services Conduct
Rules but there is nothing to show that amendments in Standing Orders have
been made. However, only one Complaints Committee has been constituted
for the entire State.
MEGHALAYA
The State of Meghalaya has neither carried out amendments in the
Civil Services Conduct Rules nor in the Standing Orders.
TRIPURA
The State of Tripura has carried out the amendments in the Civil
Services Conduct Rules. There are no Standing Orders applicable in the
State. 97 Complaints Committees have been constituted in most of the state
government departments and organisations.
ASSAM
Amendments in the Civil Services Conduct Rules have been made but no
amendments have been carried out in the Standing Orders.
MANIPUR
The State of Manipur has carried out amendments in the Civil Services
Conduct Rules, but no definite information has been given regarding
amendments in the Standing Orders. Only one Complaints Committee has been
formed for the entire State.
UTTAR PRADESH
Amendments both in the Civil Services Conduct Rules and the Standing
Orders have been carried out.
JAMMU AND KASHMIR
The State of Jammu and Kashmir has carried out amendments in the
Civil Services Conduct Rules. It is stated that steps are being taken for
amendments in the Standing Orders.
NAGALAND
The amendments have been carried out in the Civil Services Conduct
Rules by the State of Nagaland but no amendments have been carried out in
the Standing Orders.
ARUNACHAL PRADESH
The State of Arunachal Pradesh has neither carried out amendments in
the Civil Services Conduct Rules nor in the Standing Orders. There is only
one State Level Committee for the entire State of Arunachal Pradesh.
KERALA
Amendments in the Civil Services Conduct Rules and in the Standing
Orders have been carried out. There are 52 Complaints Committees in the
State. All such committees are headed by women and 50% members of these
committees are women and there is representation of NGO members in these
committees.
TAMILNADU
The State of Tamil Nadu has carried out amendments in the Civil
Services Conduct Rules. However, no amendments in the Standing Orders have
been made so far.
JHARKHAND
The State of Jharkhand has carried out amendments in the Civil
Services Conduct Rules. However, no amendments in the Standing Orders have
been made so far.
9. From the affidavits filed by the State Governments, it
transpires that the States of Orissa, Meghalaya, Himachal Pradesh, Goa,
Arunachal Pradesh and West Bengal have amended the Rules relating to
duties, public rights and obligations of the government employees but have
not made amendments in Civil Services Conduct Rules. Similarly, the States
of Sikkim, Madhya Pradesh, Gujarat, Mizoram, Orissa, Bihar, Jammu &
Kashmir, Manipur, Karnataka, Rajasthan, Meghalaya, Haryana, Himachal
Pradesh, Assam, NCT of Delhi, Goa, Nagaland, Arunachal Pradesh, Jharkhand
and Tamil Nadu have not carried out amendments in the Standing Orders.
These States appear to have not implemented the order passed by this Court
on 26.4.2004 quoted above. The States which have carried out amendments in
the Civil Services Conduct Rules and the Standing Orders have not provided
that the report of the Complaints Committee shall be treated as a report in
the disciplinary proceedings by an Inquiry Officer. What has been provided
by these States is that the inquiry, findings and recommendations of the
Complaints Committee shall be treated as a mere preliminary investigation
leading to a disciplinary action against the delinquent.
10. The States like Rajasthan, Meghalaya, Himachal Pradesh, Assam
and Jammu and Kashmir seem to have not formed Complaints Committees as
envisaged in the Vishaka guidelines. Some States have constituted only one
Complaints Committee for the entire State.
11. The Union Territories of Andaman and Nicobar Islands, Daman
and Diu, Lakshadweep, Dadra and Nagar Haveli and Puducherry have not made
amendments in the Standing Orders. The Union Territory of Chandigarh does
not seem to have carried out amendments in the Civil Services Conduct
Rules. Some of the Union Territories like Dadra and Nagar Haveli and
Chandigarh are reported to have not yet formed Complaints Committees.
Daman and Diu have formed one Complaints Committee for the Union Territory.
12. While we have marched forward substantially in bringing gender
parity in local self-governments but the representation of women in
Parliament and the Legislative Assemblies is dismal as the women represent
only 10-11 per cent of the total seats. India ranks 129 out of 147
countries in United Nations Gender Equality Index. This is lower than all
South-Asian Countries except Afghanistan. Our Constitution framers believed
in fairness and justice for women. They provided in the Constitution the
States’ commitment of gender parity and gender equality and guarantee
against sexual harassment to women.
13. The implementation of the guidelines in Vishaka has to be not
only in form but substance and spirit so as to make available safe and
secure environment to women at the workplace in every aspect and thereby
enabling the working women to work with dignity, decency and due respect.
There is still no proper mechanism in place to address the complaints of
sexual harassment of the women lawyers in Bar Associations, lady doctors
and nurses in the medical clinics and nursing homes, women architects
working in the offices of the engineers and architects and so on and so
forth.
14. In Seema Lepcha[2] this 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.”
15. 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 up liftment of our half most precious population – the women.
16. In what we have discussed above, we are of the considered view
that guidelines in Vishaka should not remain symbolic and the following
further directions are necessary until legislative enactment on the subject
is in place.
(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.
17. We are of the view that if there is any non-compliance or non-
adherence to the Vishaka guidelines, orders of this Court following
Vishaka and the above directions, it will be open to the aggrieved persons
to approach the respective High Courts. The High Court of such State would
be in a better position to effectively consider the grievances raised in
that regard.
18. Writ petitions (including T.C.) and appeals are disposed of as
above with no orders as to costs.
…………………….. J.
(R.M. Lodha)
………………………J.
(Anil R. Dave)
…………………….. J.
(Ranjan Gogoi)
NEW DELHI.
OCTOBER 19, 2012.
-----------------------
[1] Vishaka and Others v. State of Rajasthan and Others; [(1997) 6 SCC
241]
[2] Seema Lepcha v. State of Sikkim & Ors. [Petition for Special Leave
to Appeal (Civil) No. 34153/2010 decided on 3.2.2012]
-----------------------
19
