Interpretation of Sexual Harassment Offences by J Udiciary in India

INTERPRETATION OF SEXUAL HARASSMENT OFFENCES BY J UDICIARY IN INDIA

INTRODUCTION-

This article is an attempt to understand how the judiciary in India has over the years interpreted sexual harassment offences and the various statutes, guidelines and measures that have been formed to deal stringently with such crimes mostly as a result of judicial activism.

RESEARCH QUESTIONS-

The article will answer the following questions-

1. What rules of interpretation has the judiciary relied on to interpret sexual harassment offences in India? How and why were these rules of interpretation applied? 2. Which major statutes and case laws have contributed to judiciary’s understanding of sexual harassment offences? 3. What major pros and cons i.e. praise and criticism have been attributed to judiciary’s understanding of sexual harassment offences?

HYPOTHESIS- The article aims to prove the following assumptions-

1. The importance of Vishakha V State of Rajasthan (1997) 6 SCC 241, the reconstructionist logic of interpretation that was applied in this case, the creation of the stringent “Vishakha guidelines” as a result of this case and how this landmark case was later referred to by other crucial judgments in.

2. The evolution of newer statutory provision as a result of judicial activism – from 354,503,509 etc of IPC to newer ones like Section 354 A of the Indian Penal Code that has been included under the 2013 amendments in the IPC and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which is a more specific statute that strictly deals with sexual harassment that women deal with at workplace. This statute also aims at preventing and redressing sexual harassment fears by building on the “Vishakha guidelines”. CHAPTERS-

Chapter one:-

This chapter aims to explain the reconstructionist logic that the judiciary relied upon to cover the legislative gap i.e. the complete absence of any statute to deal with sexual harassment offences in India1 by using the powers it has been accorded under clauses 1 and 2 of Article 32 of the Indian constitution to create “Vishakha guidelines” , as the Supreme Court did in the case of Vishakha V State of Rajasthan (1997) 6 SCC 241 , to create binding regulations under Article 141 of the constitution2. The court stated that3-

"International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein."

This judgment was a turning point with regards to sexual harassment cases in India. The Supreme Court for the first time relied extensively on international conventions, quoting the International Covenant on Civil and Political Rights (ICCPR), Fourth World Conference on Women in Beijing and the Protection of Human Rights Act of 1993, to ask both the state and the central governments to follow the commitments that it had so made at the aforementioned international summits4 .

The court in this judgment also referred to the “Covenant on Elimination of Discrimination Against Women (CEDAW)” which was adopted by the General Assembly in 1979 and has also been called “International Bill of Rights for Women”. This convention lays a lot of emphasis on equality for women in different contexts. This convention was reaffirmed in the Second World Conference on Human Rights at Vienna in June 1993 and in the Fourth World Conference on Women held in Beijing in 1995. India had been a party to the latter Convention and is committed to achieve the designated aims5.

1 N S BINDRA, INTERPRETATION OF STATUTES, 32( 11th Edition,Amit Dhanda, e.d, 2014). 2 Vishakha V State of Rajasthan ,(1997) 6 SCC 241. 3 Id; note 2, ¶ 14. 4 Supra note 2. 5 ebc-india.com, GENDER EQUALITY—APPLICATION OF INTERNATIONAL COVENANTS IN DOMESTIC SPHERES ,by Justice Manju Goel, 2004, available at http://www.ebc-india.com/lawyer/articles/2004_7_23.htm (Last visited on 10th August, 2015). The court in this judgment, referred to the general recommendations cited in CEDAW’s sub chapter titled “violence and equality in employment” and quoted the following6 –

1. Sexual harassment at workplace is a type of gender specific violence and it hampers equality at workplace.

2. Sexual harassment included the following- physical contacts and advances, sexually colored remarks, showing pornography and making sexual by words or actions. This type of conduct was not conducive for women to work and thus employers are under compulsion to take preventive, protective and compensatory steps mandatorily.

The CEDAW also greatly influenced the decision of the court and motivated it to set up stringent guidelines, known as “Vishakha guidelines” to protect women workforce from any sort of sexual harassment.

Reconstructionist logic, a potent mode of interpretation, that was used in the case of Vishakha, to create hitherto non-existent guidelines to protect women workforce from instances of sexual harassment at workplace, came into existence in the 1980s where the Supreme court decided that its duty was not only limited to striking down wrongful legislations but also bringing in social- economic equality by promoting like legislations7, beginning with the case of Bhim Singh V UOI , wherein the court underscored the need to provide just and fair compensation to those persons whose land is acquired for “public purpose” not allowing Articles 23 (4), 31 A and 31 B to cover up for the absence of text in the Land Ceiling Act8.

This concept was the subject of intense discussion between Justice Bhagwati and Justice Pathak, in the case of Bandhua Mukti Morcha V Union of India 1984 AIR 802. This case led to the evolution of Public Interest Litigation (PIL) in India. The debate between Bhagwati and Pathak, the latter supported the idea of PIL while the latter opposed it, also sums up the conflict about Reconstructionist mode of construction. Justice Bhagwati felt that concepts like PIL, was not putting the judiciary in a position of conflict with the executive but was meant to ensure socio-economic welfare and adherence to human rights, which are the basic tenants of the constitution. Justice Pathak on the other hand, argued that the court was taking a political colour by trying to correct

6 Supra note 2, ¶ 13. 7 Supra note 1, 29-30. 8 Bhim Singh V UOI , (1981) 1 SCC 166. “executive error” or “legislative omission” and thus destroying the fine division of power between the three arms that was envisaged by the constitution. Thus, this discussion exemplifies the conflict between activist judges like Bhagwati and restraintvist judges like Pathak9.

These efforts to cover up the lack of requisite legislative action in the beginning actually churned out some major welfare oriented legislations in the later years, including the now acclaimed act of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which was the subject of intense discussion in Vishakha V State of Rajasthan10. Thus, these developments underscore the importance and impact of the Vishakha judgment in the interpretation of sexual harassment offences in India by the judiciary.

Chapter two:-

This chapter will focus on important case laws that have helped in creating a nuanced understanding of sexual harassment offences. To understand the development of measures against sexual harassment, this chapter will divide the case laws into two different timelines for better understanding. These will be –

1. “The pre-Vishakha era”- The article will discuss some important and landmark cases before the year 1997,namely- (i) Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr - This case was an instance of a powerful serving official being convicted by the courts; a serving high ranking police official, who had inappropriately behaved with a lady on an occasion11. (ii) Miss Radha Bai vs The Union Territory Of Pondicherry- The court cited two previous cases to compare the statement of a victim of sexual offence to that of an injured witness and whose statement in the absence of malice is to be accepted in entirety if the concerned victim is adult and mature12.

These judgments pre-dated the Vishakha judgment. It is to be noted that these judgments are more punitive than reformative and thus cannot in any way be termed to be ground-breaking and thus do not create a new thresh hold.

9 Supra note 1, 31. 10 Id., note 31,32. 11 Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr ,1996 AIR 309. 12 Miss Radha Bai vs The Union Territory Of Pondicherry, 1995 AIR 1476. 2. “The post Vishakha era”- This part will discuss the most important case that changed sexual harassment laws in India-Vishakha V State of Rajasthan and the subsequent developments it triggered via statutes, case laws and guidelines –

(i) Vishakha V State of Rajasthan (1997) 6 SCC 241- This case, as discussed before , is considered ground breaking, as it used the reconstructionist logic and relied on international norms and conventions to create a set of comprehensive guidelines known as “Vishakha guidelines”, to be followed by all public and private institutions to protect the women workforce from potential harassment cases13. The preventive steps suggested were -

(a) Expressly prohibit sexual harassment, with a circular to be notified, published and circulated in appropriate ways. (b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline were to include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. (c) Private employers had to ensure that steps were to take steps to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 194 r6. (d) Appropriate work conditions were to be given in respect of work, leisure, health and hygiene to further ensure that there was no hostile environment towards women at work places and no employed woman would reasonably believe that she were disadvantaged in connection with her employment. (ii) Medha Kotwal Lele & Ors vs U.O.I. & Ors - Non-compliance or non- adherence to the Vishakha guidelines and orders of the Supreme Court following the Vishakha judgment would allow aggrieved persons to approach the respective High Courts in their particular States. This decision in effect reiterated that provisions of the Vishakha judgment were enforceable and those guidelines were to be effectively followed by all institutions, public and private. This decision re-enforced the importance of the Vishakha judgment14.

13iitg.ac.in, Laws and Procedures: Sexual harassment in the work place-Vishakha guidelines against Sexual harassment in the work place, available at http://www.iitg.ac.in/iitgicc/docs/Vishaka_Guidelines.pdf (Last visited on 10th August, 2015). 14 Medha Kotwal Lele & Ors vs U.O.I. & Ors, IN THE SUPREME COURT OF INDIA ORIGINAL/APPELLATE JURISDICTION WRIT PETITION (CRIMINAL) NOS. 173-177 OF 1999. (iii) Prof. Bidyug Chakraborty vs Delhi University & Ors - No inquiry in the violation of natural laws of justice will be accepted. The court, in its quest for justice, would not proceed without hearing the accused’s defence. This shows that the suspect’s rights are not to be ignored in instances of criminal proceedings15. (iv) A.V. Ramana vs State Of Gujarat &others on 21 August, 2013 - Section 306 of the IPC could be applied only when the alleged link between the accused’s actions and the victim’s suicide can be proved by proving instigation / incitement or a process of intentionally aiding, and leading, the person to suicide16. The rule of interpretation followed in this case is the golden rule, as the courts have tried to understand the provisions deeply and tried to interpret it in this way to avoid any injustice.

(v) P.K. Puthuppan vs K.S. Girija - Vishakha guidelines have to be compulsorily complied with by all private institutions. This judgment followed Vishakha after a gap of around 11 years, but followed the original ideas discussed in that case. Thus, this proves that the impact of Vishakha has not diluted and the judiciary still regards the case a pedestal while dealing with cases of sexual harassment of women workforce17. As a result, we can safely conclude that the reconstructionist mode of interpretation is not a relic, even now. (vi) Kpmg India Pvt. Ltd vs National Commission For Women - If a prima facie case is made out, a commission created by the National Commission for women must issue notice to the organization and hear them before making recommending remedial measures. The commission is however not empowered to decide the rights of parties and due care must be taken in this behalf under section 10 (1) (f) of the National Commission for Women Act, 199018. The rule of interpretation followed in this case is the literal rule, as the courts have tried to adhere to strictly to the norms discussed in the aforementioned statute.

15 Prof. Bidyug Chakraborty vs Delhi University & Ors ,IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) No.8226/2007. 16 A.V. Ramana vs State Of Gujarat &others on 21 August, 2013, IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC. APPLICATION NO. 11878 of 2007. 17 P.K. Puthuppan vs K.S. Girija ,IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 25754 of 2008(N) . 18 Kpmg India Pvt. Ltd vs National Commission For Women ,IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.146 OF 2014. Through these later cases, we can notice the subsequent progress that happened in sexual harassment laws, a sense of strict adherence and reference to the rules discussed in the Vishakha case, coupled with the judiciary’s determination to ensure swift and pervasive justice being delivered.

Chapter three:-

This chapter aims to explain the major sets of statutes, which the judiciary has relied upon to interpret instances of sexual harassment in India.

(a)The court, in the Vishakha judgment, enumerated the laws that were to be used while dealing with instances of sexual harassment in India19. The case cited these provisions under the India Penal Code (IPC) to be used against instances of sexual harassment-

1-Section 294-It is a part of Chapter XVI , that is titled “Of Offences Affecting Public Health, Safety, Convenience and Morals” . Any person charged in this case can be tried and bailed by a magistrate20. These offences are cognizable.

It has the following constituents-

(a) Any act of obscenity in a public place

(b) Acts of singing, reciting and uttering any obscene songs, ballads or words, in or near any public space

The punishment under this section includes imprisonment that may be extended to three months, or with fine, or with both.

2-Section 354- It criminalizes acts of assault and/or use of criminal force on any woman, that intends to outrage her modesty or knows that it is likely to outrage her modesty will be awarded a punishment of imprisonment for a term which may extend to two years, or with fine, or with both21.

3- Section 509- It deals with words, gestures or actions intending to insult the modesty of a woman .This is included in Chapter 22 of IPC, titled, “Of Criminal Intimidation, Insult and Annoyance”. The punishment includes imprisonment for a term that may extend to one year, or with fine, or with both22.

19 Supra note 13. 20 The Indian Penal Code, 1860, §294. 21Ibid, §354. 22Ibid, § 509. A major point of judicial interpretation, in cases relating to sections 354 and 509 has been defining the phrase “modesty”. The court in the case of Major Lachhman Singh V The State, relied on Shorter Oxford English Dictionary (Third Edition) to define modesty as -“Decorous in manner and conduct; not forward or lewd; shame fast”. Therefore in the context of men it meant the quality of being modest, and in the context of women it meant- “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct”. This is an instance of the court relying on external aids of interpretation- in this case a dictionary23.

In the case of Swapna Barman V Subir Das , it was also taken to include those acts short of being out rightly indecent, an instance of applying golden and dynamic modes of interpreting statutes24.

(b)In the post Vishakha scenario, as a direct result of the Vishakha judgment, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, has come into being, it is a more specific statute that strictly deals with sexual harassment that women deal with at workplace. This statute also aims at preventing and redressing sexual harassment fears by building on the “Vishakha guidelines”25.

This statute is an instance of how the judiciary’s ratio in the Vishakha judgment influenced the legislature in the later years to bring about this important reform.

CONCLUSION- Thus, in conclusion, we can firmly conclude these aspects about judiciary’s role in interpreting sexual offences in India-

(1) The case of Vishakha V State of Rajasthan is an important case of thorough breakthrough by applying the reconstructionist mode of interpretation and quoting international norms and conventions. (2) The courts in Vishakha V State of Rajasthan, applied the reconstructionist logic that the judiciary relied upon to cover the legislative gap i.e. the complete absence of any statute to deal with sexual harassment offences in India by using the powers it has been accorded under clauses 1 and 2 of Article 32 of the Indian constitution to create “Vishakha guidelines”. (3) The reconstructionist logic has been appreciated for trying to bridge “executive error” and “legislative gap”, but also criticized for being over-

23 Major Lachhman Singh V The State ,AIR 1963 P H 443. 24 Swapna Barman V Subir Das ,(2004) 1 GLR 168. 25 Supra note 1,32. riding and giving too much of access to interfere in the domain of the other two organs to the judiciary. (4) The case of Vishakha V State of Rajasthan , became an extremely significant source of reference and application in later cases like Medha Kotwal Lele & Ors vs U.O.I. & Ors. (5) There have been other important cases that have helped in interpreting sexual harassment cases even more clearly. These include- Swapna Barman V Subir Das, Miss Radha Bai vs The Union Territory Of Pondicherry, A.V. Ramana vs State Of Gujarat. (6) The role of judiciary has been instrumental in advancing the concept of sexual harassment in India, so much so that the recent Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, has come into being as a direct result of the Vishakha judgment. The role of judiciary cannot be undermined and rather the efforts of judiciary should be complimented with greater efforts from the legislature and the executive to create a fool-proof system to protect such incidents and protect the women-workforce.

BIBLIOGRAPHY-

 indiankanoon.org  Westlaw India  N S Bindra’s interpretation of statutes, 11th Edition (2014), edited by Amit Dhanda.  iitg.ac.in  ebc-india.com

Submitted by- Saurabh Kumar 3rd Year, WBNUJS