Sexual Harassment of Women at Work

In 1997, the Honorable Supreme Court of India, in Vishaka and Others Vs. State of Rajasthan and Others (“Vishaka Judgment”) acknowledged the gravity of sexual harassment of the working women at the workplaces and laid down guidelines making it mandatory for employers to prevent the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. The guidelines issued by the Hon’ble Supreme Court were treated as law declared by the Hon’ble Supreme Court under Article 1412 of the Constitution of India. It was held by the Hon’ble Supreme Court that the guidelines framed by the Supreme Court would be strictly observed in all work places for the prevention and enforcement of the right to gender equality of the working women.

sexual harassment

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It was observed by various Courts from time to time in the past that the guidelines and norms framed by the Hon’ble Supreme Court in Vishaka Judgment have not been followed in workplaces strictly.
The increasing work participation rate of women made it imperative for enacting a comprehensive legislation focusing on prevention of sexual harassment as well as providing a redressal mechanism.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 & Rules made therein

In 2013, after a span of 16 years, India finally enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the ‘Act’) for prevention of sexual harassment against women at the workplaces. The Central Government vide notification SO 3606 (E) appointed 9 December 2013 as the date on which the provisions of the Act came into force and on the same day, the Central Government made the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”).

Objectives of the Act
The Act is enacted by the Indian Parliament to provide protection against sexual harassment of women at workplace and prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. Sexual harassment is termed as a violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and right to life and to live with dignity under Article 21 of the Constitution of India. Sexual harassment is also considered a violation of a right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.


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Sexual Harassment

The Act has adopted the definition of ‘sexual harassment’ from Vishaka Judgment and the term sexual harassment includes any unwelcome acts or behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

In, Apparel Export Promotion Council Vs. A.K. Chopra, the Honorable Supreme Court while deciding an issue whether the act of a superior officer (wherein such superior officer tried to molest his junior woman employee) would amount to sexual harassment, the Court relied on the definition of the term ‘sexual harassment’ laid down by the Supreme Court in the Vishakha Judgment (which is similar to the definition of the Sexual Harassment provided in the Act) held that “the act of the respondent was unbecoming of good conduct and behavior expected from a superior officer and undoubtedly amounted to sexual harassment…”.

Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any workplace. This section further provides the circumstances which if present or connected with any act or behaviour of sexual harassment may amount to sexual harassment such as implied or expressed promise to preferential treatment or implied or explicit threat of detrimental treatment in her employment, implied or explicit threat about her present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, humiliating treatment likely to affect health or safety of a woman.

Complaints Committee & Complaint Procedure

Internal Complaints Committee:
The Act makes it mandatory for every employer to constitute an internal complaints committee (“ICC”) which entertains the complaints made by any aggrieved women. The members of the ICC are to be nominated by the employer and ICC should consist of i) a Presiding Officer, ii) not less than two members from amongst employees preferably committed to the cause or women or who have had experience in social work or have legal knowledge and iii) one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. In order to ensure participation of women employees in the ICC proceedings, the Act requires that at least one-half of the members of ICC nominated by employer are women.

Local Complaints Committee:

Provisions are provided under the Act to form Local Complaints Committee (LCC) for every district for receiving complaints of sexual harassment from establishments where the ICC has not been formed due to having less than 10 workers or if the complaint is against the employer himself.

Complaint procedure:

the Act stipulates that aggrieved woman can make written complaint of sexual harassment at workplace to the ICC or to the LCC (in case a complaint is against the employer), within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident. If the aggrieved woman is unable to make complaint in writing, reasonable assistance shall be rendered by the presiding officer or any member of the ICC (or in case the aggrieved woman is unable to make complaint in writing to the LCC, the reasonable assistance shall be rendered by the Chairperson or any member of the LCC) for making the complaint in writing.

As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 , in case the aggrieved woman is unable to make a complaint on account of her physical incapacity, a complaint may be filed inter alia by her relative or friend or her co-worker or an officer of the National Commission for Woman or State Women’s Commission or any person who has knowledge of the incident, with the written consent of the aggrieved woman.

Right to Litigate Must be Replaced with Right to Justice!

Our legal system is one of the most inefficient in the world is not a secret, with bottom ranking on contract enforce-ability in ease of doing business index. Even CJIs have been record predicting complete breakdown of our legal system since time immemorial (I recall justice PN Bhagwati saying this in 1985). That we are still surviving as a sovereign and democratic nation is nothing short of a miracle. How long could it go on is a big question mark, given that legal reforms have never been a priority for any government in India so far.

From my personal experience, I have learnt that our legal system is tailor made for the blackmailers in property cases which has made it extremely easy to embroil anybody in court for decades, preventing him from using or selling his property even if injunction is not granted, and ultimately succeeding through forced compromise at some stage. Kindly consider the following:-

Legal presumptions/bias in suits under Specific Relief Act 1963

1. Law assumes that money is not an adequate relief for breach of contract for sale of immovable property.

a. In most suits, plaintiff is claiming monetary loss due to breach of contract, and his intention/purpose of buying the property was to sell the same as it is or after development/construction.

b. Very rarely, plaintiff will have anything more than monetary consideration where the above assumption could be justified.

c. Plaintiff targets and will invariably reach compromise with monetary compensation at some stage.

d. Since suit for compensation does not prevent a defendant from selling his property, enough pressure is not created on him. Hence, plaintiff has been armed with this legal assumption which either through injunction or the principle of lis pendence effectively prevents seller from selling his property until this case is settled.

e. Even if defendant wins trial court, plaintiff will invariably go into appeals, and thus, armed with weapon to publicize to whole world that the subject property is disputed, and scare the buyers away. Eventually, defendant will succumb one day regardless of merits in the case.

2. Law assumes that time is not essence of the contract for sale of immovable property.

a. This allows a plaintiff to default on his payment obligations, and yet come to court which assumes that time is not essence of the contract.

b. Even if contract specifically means payment to be within this particular month, courts interpret that not to be essence of
the contract.

3. Law allows enforcement of oral contracts.

a. This is despite provisions of Stamp Act and Registration Act requiring contracts for sale of property to be registered and properly stamped.

b. This is also despite the provisions of evidence act stating that an oral contract which needs to be executed in writing by law cannot be taken as evidence.

c. Since in most suits, proper stamp duty has not been paid, the plaintiff concocts the story of there being an oral contract for enforcement.


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d. Registration Act proviso to Sec 49 which provides an exception to bar on production of any unregistered document as evidence in court, has been mis-interpreted by courts giving boost to such frivolous litigation. The section states.

4. Law only wants plaintiff to state that he was willing and capable to discharge his obligation, but there is no need for him to actually tender the payment. Even case laws have repeatedly held that plaintiff need not actually tender payment.

a. It allows plaintiff who actually has no means to pay for the property under the contract to come to court. Of course, he will not win the trial but he is still entitled to file an appeal, and then, second appeal. His lawyers can easily buy him one or two decades in court to enable him to scare buyers of the property that long, and ultimately force seller to come to terms with him.

b. The defendant is not allowed to demand depositing of the purchase consideration in court. Consequently, buyer’s property (the money) remains free while seller’s property remains stuck. This is inbuilt injustice in the legal system.

5. Supreme Court has held that there could be no counter claim for damages on the plaintiff who manages to secure injunction on defendant’s property which is ultimately held to be unnecessary or unjust. This makes the entire litigation lopsided.

6. Courts are extremely reluctant and strict in accepting applications under order 7 rule 11 for dismissal. They do not consider probability of the suit succeeding but they only want to see extremely strictly as to why the suit is legally barred. This allows every frivolous suit a direct right to trial which means another right to appeal, and so on.

It is high time we replace right-to-litigate with right-to-justice !!!