Sexual Harassment At Workplace Is An Affront To Women’s Fundamental Rights: Supreme Court

While displaying zero tolerance for sexual harassment of women at workplace, the Supreme Court Bench comprising of Justice Dr DY Chandrachud and Justice Ajay Rastogi have just recently on February 25, 2020 in a notable judgment titled Punjab and Sind Bank and Others Vs Mrs Durgesh Kuwar in Civil Appeal No. 1809 of 2020 have minced no words to make it abundantly clear that sexual harassment at the workplace is an affront to the fundamental rights of a woman. This was so remarked while upholding a Madhya Pradesh High Court judgment that had quashed a transfer of a woman bank employee! Very rightly so! There must be no tolerance for sexual harassment at any workplace and those indulging in it must be made to face the music of law!

To start with, the ball is set rolling in para 2 of this noteworthy judgment authored by Justice Dr Dhananjaya Y Chandrachud for himself and Justice Ajay Rastogi wherein it is observed that, “A senior officer of a public sector banking institution complains that her reports about irregularities and corruption at her branch and her complaints against an officer who sexually harassed her met with an order of transfer. The case involves the intersection of service law with fundamental constitutional precepts about the dignity of a woman at her workplace.”

Be it noted, para 3 then discloses that, “This appeal arises from a judgment of a Division Bench of the Indore Bench of the High Court of Madhya Pradesh dated 18 March 2019 in a Writ Appeal arising out of an order of the learned Single Judge dated 11 February 2019.”

To recapitulate, it is then remarkably laid bare in para 4 that, “The respondent was appointed as a Probationary Officer of the Punjab and Sind Bank, the first appellant, on 8 October 1998 in Junior Management Grade Scale 1. She was promoted to the post of Chief Manager in Scale IV. On 2 September 2011, the respondent was transferred to the Zonal Office at Mumbai. On 7 October 2011, she was transferred to the Branch Office at Indore. In September 2016, the first respondent was promoted to the post of Chief Manager in Scale IV. On 23 September 2016, the competent authority of the bank decided to continue her at the branch in Indore upon promotion. On 11 December 2017, the respondent was transferred from the Branch Office at Indore to the Branch Office at Saraswa in the district of Jabalpur. Intimation of the transfer was furnished to her on 14 December 2017. On 31 January 2018, the respondent submitted a representation to the Zonal Manager, recording a reference to the circulars of the bank governing the posting of women officers. She made a request for being retained at Indore. Following the earlier representation, she submitted a reminder on 15 February 2018 and a representation on 19 February 2018 to the Executive Director of the Bank.”

After hearing both sides, the Bench then observes in para 17 that, “We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their submissions and to which we have already made a reference above. There can be no dispute about the position in law.”

For the sake of brevity, the key issue in real terms that is raised in para 18 is as stated that, “The real issue which the Court needs to enquire into in the present case is as to whether the order of the High Court quashing the order of transfer can be sustained, having regard to the above principles of law. The material on record would indicate that commencing from 31 December 2016 and going up to 15 November 2017, the respondent, who was posted as Chief Manager in her capacity as a Scale IV officer at Indore branch, submitted as many as six communications drawing attention to the serious irregularities which she had noticed in the maintenance of bank accounts of and transactions by liquor contractors. The contents of the complaints raised serious issues. The order of transfer was served on the respondent within a month of the last of the above representations, on 14 December 2017. On 19 February 2018, the respondent levelled allegations specifically of sexual harassment against the Zonal Manager. The bank initially constituted an ICC. The respondent raised an objection to the presence of some of the members of the Committee.”

Going forward, para 19 then stipulates that, “The report of the ICC contains a reference to the objections which the respondent raised to the members at serial numbers (ii), (iv) and (vi) above. These objections were noted in the course of the report of the ICC dated 26 February 2019. The respondent drew the attention of the Presiding Officer of the ICC to the fact that Ms Rashmita Kwatra, AGM is the spouse of a retired General Manager, who was part of the process of the transfer of the respondent. As against Ms Seema Gupta, who was nominated as an independent member, the respondent noted that she was a panel advocate of the bank and was regularly contesting cases in court involving the bank. The respondent also raised an objection in regard to the presence of Mr Vimal Kumar Attrey as a member of the Committee. The report of the Committee contains a reference to the fact that following the objections which were raised by the respondent, the Committee was reconstituted, as a result of which Ms Rashmita Kwatra and Mr Vimal Kumar Attrey were substituted by two other officers of the bank. However, Ms Seema Gupta, Advocate continue to be a member of the ICC.”

Most significantly, it is then elegantly postulated in para 20 that, “The Act was enacted to provide protection against sexual harassment of women at the workplace as well as for the prevention and redressal of complaints of sexual harassment. Sexual harassment at the workplace is an affront to the fundamental rights of a woman to equality under Articles 14 and 15 and her right to live with dignity under Article 21 of the Constitution as well as her right to practice any profession or to carry on any occupation, trade or business.”

What’s more, it is then rightly brought out in para 22 that, “Clause (c) of Section 4(2) indicates that one member of the ICC has to be drawn from amongst a non-governmental organization or association committed to the cause of women or a person familiar with issues relating to sexual harassment. The purpose of having such a member is to ensure the presence of an independent person who can aid, advise and assist the Committee. It obviates  an institutional bias. During the course of hearing, we have received a confirmation from the learned senior counsel appearing on behalf of the bank that Ms Seema Gupta was, in fact, a panel lawyer of the bank at the material time. This being the position, we see no reason or justification on the part of the bank not to accede to the request of the respondent for replacing Ms Seema Gupta with a truly independent third party having regard to the provisions of Section 4(2)(c) of the Act. This is a significant facet which goes to the root of the constitution of the ICC which was set up to enquire into the allegations which were levelled by the respondent.”

Simply put, the Bench then goes on to add in para 24 that, “The material which has been placed on record indicates that the respondent had written repeated communications to the authorities drawing their attention to the serious irregularities in the course of the maintenance of accounts of liquor contractors and in that context had levelled specific allegations of corruption. The respondent was posted on 14 December 2017 to a branch, which even according to the bank, was not meant for the posting of a Scale IV officer. The sanctity which the bank attaches to posting officers of the appropriate scale to a branch commensurate with their position is evident from the Board’s Resolution to which we have adverted earlier. Admittedly, the branch to which the respondent was posted was not commensurate to her position as a Scale IV officer. There can be no manner of doubt that the respondent has been victimized. Her reports of irregularities in the Branch met with a reprisal. She was transferred out and sent to a branch which was expected to be occupied by a Scale I officer. This is symptomatic of a carrot and stick policy adopted to suborn the dignity of a woman who is aggrieved by unfair treatment at her workplace. The law cannot countenance this. The order of transfer was an act of unfair treatment and is vitiated by malafides.”

To put it succinctly, it is then observed in para 25 that, “In view of the above analysis, we are of the view that the High Court cannot be faulted in coming to the conclusion that the transfer of the respondent, who was holding the office of Chief Manager in the Scale IV in Indore branch to the branch at Saraswa in the district of Jabalpur was required to be interfered with. At the same time, a period of nearly four years has since elapsed. Despite the order of stay, the respondent was not assigned an office at Indore and had to suffer the indignity of being asked to sit away from the place assigned to a Branch Manager. Considering the period which has elapsed, it would be necessary for the Court to issue a direction, which, while sub-serving the interest of the bank, is also consistent with the need to reserve the dignity of a woman employee who, we hold, has been unfairly treated.”

Now coming to the concluding paras, para 26 holds that, “We accordingly direct that Ms Durgesh Kuwar, the respondent officer, shall be reposted at the Indore branch as a scale IV officer for a period of one year from today. Upon the expiry of the period of one year, if any administrative exigency arises the competent authority of the bank would be at liberty to take an appropriate decision in regard to her place of posting independently in accordance with law keeping in view the relevant rules and regulations of the bank, in the interest of fair treatment to the officer.”

Lastly, it is then held in para 27 that, “While affirming the decision of the High Court, the appeal is disposed of in terms of the above directions. The respondent would be entitled to costs quantified at Rs 50,000 which shall be paid over within one month.”

To sum up, the crux of this latest, landmark and extremely laudable judgment is that there has to be zero tolerance for sexual offences directed against women . Those men who dare to still indulge in it have to be made to suffer most swiftly the penal consequences of their reprehensible actions! The sum and substance of this noteworthy judgment is that sexual harassment of women at workplace is an affront to the fundamental rights of a woman to equality under Articles 14 and 15 and her right to live with dignity under Article 21 of the Constitution as well as her right to practice any profession or to carry on any occupation, trade or business. The provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 must be strictly and swiftly implemented so that the woman victim gets the due relief at the earliest! There can be no denying or disputing it!

Sanjeev Sirohi

Sexual harassment at workplace

Sexual harassmentMadhvender Chauhan

ABSTRACT

Sexual harassment is “behavior with a sexual connotation that is abusive, injurious and unwelcome”. For the victim, sexual harassment has direct consequences for the maintenance or improvement of his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility.

The purpose of the paper is to provide a holistic and comprehensive picture in regard to the sexual harassment at workplace.

The paper attempts to discuss all kinds of conduct that can come within the purview of the word “sexual harassment”. The paper also brings to light the various tests which can be applied to determine as to whether certain conduct at the workplace can be treated as sexual harassment or not. The paper also focuses on the international instruments and conventions which came into existence to prohibit this evil of sexual harassment in the society. The paper stresses on the preventive and procedural actions that need to be taken by the employers to combat sexual harassment at the workplace. The paper shall also provide for the liabilities and the remedies that are available to the victims of sexual harassment. The paper shall conclude by suggesting the various resorts that are open to the victims to get their grievances redressed.

need of providing the women with the opportunity to plan and make choices for themselves and further, to transform those choices into desired outcomes. The paper will also focus on the various measures which are being taken, both at the national and international fronts, to improve the condition of women and empower them. The paper shall conclude by suggesting measures to sow the seeds of entrepreneurial culture so deep in the society of India that plants of success, prosperity and empowerment of women is bound to reap.

INTRODUCTION:

Sexual harassment is any sexually oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favours. However, it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.

As noted by Dickson, CJ of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. , in most cases of sexual harassment, the perpetrator misuses “a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands”. Sexual harassment involves “the unwanted imposition of sexual requirements in the context of a relationship of unequal power”.

It is important to bear in mind that the perpetrator of sexually harassing behavior may not be motivated only by sexual desire or lust. The perpetrator may simply be demonstrating his or her power to the victim. In many cases, such behavior may be a by-product of the prevailing stereotypes in the system. Thus, male perpetrators may indulge in sexually-harassing behavior to simply show the female victim ‘her place’ or to convey to her that she is good only for gratifying their sexual desires. While cases involving sexual harassment of subordinates by superior officers may be characterized by the perpetrator’s desire to assert power over the recipients, those involving sexual harassment by co-employees (including subordinates) and outsiders (like the employer’s customers) may be actuated by sheer lust or sexual stereotyping.

The following passage from the decision of the arbitrator in the Canadian Pacific Ltd. and B.M.W.E. (Parker), Re , depicts the wide range of sexual harassment:

“While physical touching and the making of sexual demands may be the crudest form of sexual harassment, giving rise to the earliest complaints and court or tribunal decisions, experience has shown that the concept of sexual harassment can be much broader. Innuendo by words or gestures, unwelcome staring, sexually abusive jokes or other language, the unwelcome displaying of pornography and the writing of graffiti on workplace walls which singles out or demeans individual employees are all now generally recognized as forms of sexual harassment, even though they may not involve an abuse of power or the making of sexual demands by the member of one sex upon a member of the other sex.”

DEFINITION:

In India, in the absence of any statutory definition of the term sexual harassment, it was left to the Supreme Court to do the needful. Relying on international conventions and norms, particularly General Recommendation No.19 (January 1992) of the Committee on the Elimination of Discrimination Against Women (CEDAW) constituted by the United Nations, the Supreme Court defined the term sexual harassment for the first time in the year 1997 in Vishaka v. State of Rajasthan . The definition is almost parimateria with the one proposed by the CEDAW, United Nations and reads:

“Sexual harassment includes such unwelcome sexually-determined behavior (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 women 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”.

THE LEGAL TEST FOR SEXUAL HARASSMENT:

1. Unwelcome:To fit in the concept of ‘sexual harassment’ the relevant conduct must be ‘unwelcome’, that is unwelcome to the recipient of that conduct. In this context ‘unwelcome’ means that the advance, request or conduct was not solicited or invited by the recipient, and the recipient regarded the conduct as undesirable or offensive. While definitions of ‘sexual harassment’ abound in various international instruments, declarations and conventions, as also in court decisions, and are largely similar, “the one common element in all these definitions is the unwanted and unwelcome nature of sexual harassment’. The first feature of sexual harassment is the non-consensual practice at or connected with the workplace of the proscribed sexual behavior.

2. Sexual in Nature: The second element of the definition requires the conduct to be ‘sexual’ in nature. Courts, including Human Rights Tribunal, worldwide have recognized a broad scope of conduct that may fall under the definition of sexual harassment, depending on the circumstances. Such conduct may be physical, verbal or non-verbal. The ILO has identified the following “most common forms of sexual harassment” at the workplace:

• Physical harassment (kissing, patting, pinching or touching in a sexual manner);

• Verbal harassment (unwelcome comments about a person’s sex orprivate life, jokes and insinuations, sexually explicit conversation, suggestive comments about a person’s appearance or body);

• Gestural harassment (sending suggestive gestures, such as nods, winks, gestures with the hands, fingers, legs or arms);

• Written or graphic harassment(sending pornographic pictures through e-mail, putting up pin-ups or addressing unwanted love letters to an employee);

• Emotional harassment (behavior which isolates, is discriminatory towards, or excludes a person on the grounds of his or her sex).

3. Persistence and/or Gravity of the Conduct: To constitute ‘sexual harassment’ it is not enough that the impugned conduct be merely unwelcome sexual conduct. The word ‘harass’ implies the installation of fear or the infliction of damage; is indicated by the definition of the term in the Macquarie Dictionary: “1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.2. to disturb persistently; torment, as with troubles, cares, etc.” There must be either unwanted sexual behavior whose main effect is to subordinate the maintenance of conditions and benefits to submission to unwelcome sexual demands, or behavior that creates an “intimidating, hostile or humiliating working environment”. In the context of ‘sexual harassment’ there is unanimity of judicial opinion that the behavior complained of need not be repeated to constitute sexual harassment and in a given case even a single act may be sufficient. While it is important to consider the nature and intensity of the unwelcome act itself, its impact on the victim must also be considered.

INTERNATIONAL INSTRUMENTS AND CONVENTIONS:

Much of the impetus for the statute law and judicial decisions that prohibit or constrain sex discrimination and sexual harassment stems from the recognition of the equality of the sexes in various international instruments and conventions. The Charter of the United Nations, The Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights, all contain statements of a principle against discrimination on the basis of sex. That principle finds fuller expression in relation to women in the convention on the Elimination of All Forms of Discrimination against Women. India ratified the Convention on 25.06.1993 with some reservations, which are, however, not relevant in the present context.

THE INDIAN CONSTITUTION:

The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. The Courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations,admits of no debate. Referring to the incidents of sexual assaults on working women, the Supreme Court said in Vishaka case: “Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty’. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or profession depends on the availability of a ‘safe’ working environment. Right to life means life with dignity.” Article 42 in Part IV-A of the Constitution which deals with the Directive Principles of India provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Amongst the fundamental duties of the citizen Article 51-A is relevant which states that it shall be the duty of every citizen of India 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.”

REASONS FOR COMBATING SEXUAL HARASSMENT:

Sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being. Therefore, addressing the issue of sexual harassment is directly linked to the core concerns of improved working conditions and respect for the dignity of workers. ILO says that “there are several good reasons why employers are taking action to prevent sexual harassment”. Legal compliance, business morality and ethics, desire to create a working environment which is conducive to the personal development and high level performance of their employees, litigation costs, desire to protect the company’s image and reducing the health costs and absenteeism of victims suffering from stress caused by sexual harassment are some of the main reasons cited by the ILO in this regard.

PREVENTATIVE AND PROCEDURAL ACTION BY EMPLOYERS:

Sexual harassment “continues to be a major obstacle to equality of opportunity and treatment for women”. Therefore employers are under ‘increased pressure” to tackle this problem. The present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces. Apprehending, and rightly so, that enactment of such legislation would take considerable time, the Supreme Court in Vishaka case thought it necessary and expedient to lay down certain guidelines for observance by employers and other responsible persons in workplaces or other institutions so as to ensure the prevention of sexual harassment of women and to protect their fundamental rights. The Apex Court prescribed the following preventive steps for the employers “without prejudice to the generality of this obligation”:

• Express prohibition of sexual harassment as defined (in this decision) at the workplace should be notified, published and circulated in appropriate ways.

• 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.

• 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.

• 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.

“The advantage of workplace mechanisms over legislation”, says an ILO report, “is that their role is primarily preventive. Rather than being confined to responding to sexual harassment, they are intended to ensure that it does not take place. Effective workplace policies protect employees by dissuading potential harassers, and identifying and responding to harassing behavior in its early stages.” The employers should formulate policy statements expressly declaring that sexual harassment at the workplace shall not be tolerated or condoned under any circumstance whatever.

Various other recommendations which are relevant to Indian employers as well, for shaping their policies on sexual harassment, are condensed below:

The policy statement should:

• Make it clear what is considered inappropriate behavior at work. It should also explain that such behavior, in certain circumstances might be unlawful.

• Place a positive duty on managers and supervisors implement the policy and to take corrective action to ensure compliance with it.

• Place a positive duty on all employees to comply with the policy and to ensure that their colleagues are treated with respect and dignity.

• Explain the procedure that employees subjected to sexual harassment at work should follow so as to obtain assistance. It should also specify the persons to whom they should complain.

• Contain an undertaking that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially, and that employees will be protected against victimization or retaliation for bringing a complaint of sexual harassment.

• And last but not the least, specify that appropriate disciplinary measures would be taken against employees found guilty of sexual harassment.

LIABILITY ABD REMEDIES:

Nearly all industrialized countries provide some form of legal recourse against sexual harassment at work. However, as pointed out by an ILO publication, the extent to which such remedies are used usually depends on the legal system where they are located. In some countries sexual harassment at work is legislatively or judicially recognized as a legally distinct type of prohibited activity. However, other countries are yet to reach “this level of awareness.” In India, thanks to our Supreme Court, our legal system has reached that level of awareness where sexual harassment at work is recognized as a legally distinct type of prohibited activity. This has been possible not because of some progressive legislation enacted by the Parliament or any State legislature, but “by a rather innovative judicial law-making process” resorted to by the Supreme Court in Vishaka case, “against the growing menace of sexual harassment of women at the workplace.” In Vishaka, a three judge Bench categorically declared, “ The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse.”

Having noted that the present civil and penal laws in the country do not adequately provide for specific protection of women from sexual harassment at work and that enactment of such a legislation would take a considerable time, the Supreme Court laid down certain “guidelines and norms” for “due observance at all workplaces or other institutions, until a legislation is enacted for the purpose.” The Court emphasized that this would be treated as the law declared by it under Article 141 of the Constitution. Also, there are two other statutes which may be of particular help to victims of sexual harassment, viz., the National Commission for Women Act, 1990, and the Protection of Human Rights Act, 1993.

CONCLUSION:

Sexual harassment is a serious and real problem for various working women in large number of occupations, employments, jobs, trades and businesses, and economic sectors. It is an affront to the dignity and self-respect of the victims. It may have disastrous consequences both for the victims and the employers. It is the legal duty of the employer to take appropriate affirmative action to combat sexual harassment at work. Notwithstanding the absence so far of any statute in India that specifically deals with the problem of sexual harassment at work, victims of sexual harassment have remedies under different types of law such as the Indian Constitution, Labour Laws, Criminal Laws, the National Commission for Women Act, 1990, Protection of Human Rights Act, 1993, as also Torts Law.