CHAPTER IV

CONSTITUTIONAL PERSPECTIVE OF SEXUAL HARASSMENT AGAINST

WOMEN AT WORK PLACE

The Constitution of India guarantees certain basic and fundamental rights to all Indian

citizens. These fundamental rights include: the right to equality and freedom from gender

discrimination, the right to work and the right to live with dignity. Furthermore, a certain
1
fundamental rights have been extended to all persons, regardless of citizenship. These

Constitutionally protected fundamental rights support the elimination of Sexual Harassment

at the Work Place. This Chapter examines Sexual Harassment at Work Place as a violation

of constitutionally protected fundamental rights and certain provisions in the Directive

Principles of State policy.

The very guidelines governing the issue of Sexual Harassment had been derived from

the fundamental rights, Directive Principles, Fundamental Duties and other safeguards

provided by the Constitution of India. Sexual Harassment of Women at Work Place has been

held to be a violation of the Fundamental and Human rights of working women. Any instance

of Sexual Harassment, no matter how casual it may seem to be in nature, violates the rights

guaranteed in Articles 14, 15, 19 and 21 and Fundamental Duties mentioned in Article 51-A.

“All Constitutions are the heirs of the past as well as the testators of the future.”2

Since all governmental organs, organizations and institutions owe their original and existence

to the constitution and derive their powers from its various provisions, jurists term it as

‘Ground norm’ of the country.3

1
See Article 14 and 21 of Indian Constitution.
2
Jennings, Some characteristics of Indian Constitution, Oxford University Press, 1953, P.56.
3
Hans Kelsen, The Pure Theory of Law, Lloyds Introduction to Jurisprudence, 7th Edn, MDA Freeman P.264.
86
Preamble:

The Preamble is the key to constitution. It does not discriminate men and women but

it treats them alike. The framers of the Indian Constitution were well aware of the unequal

treatment meted out to the fair sex, from time to time immemorial. In India the history of

suppression of women is very old and long which is responsible for including for general and

special provisions for upliftment and development of the status of the women. Certain

provisions are specifically designed for the benefit of the women. Undoubtedly, the Preamble

appended to the Constitution of India, certain various objectives including the equality of

status and opportunity to all the citizens. This objective has been inserted with a view to give

equal status to men and women in terms of opportunity.

According to the Preamble 4 of the Constitution, ours is a Sovereign, Socialist,

Secular, Democratic Republic and it shall secure to all citizens, including women, Justice,

Social, Economic and Political; equality of status and opportunity. There is also specific

constitutional protection which prohibits the State from discriminating against women on the

ground of sex in such areas as education and public employment and also directs the State to

take special care to promote women’s welfare, particularly protecting their health as mother

and dignity as individuals.

No Discrimination Clause:

Article 15(1) specifically bars the state from discriminating against any citizen of

India on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(1)

is an extension of Article 14. Article 15(1) expresses a particular application of the general

4
The recognition of the Preamble as an integral part of the Constitution makes the Preamble a valuable aid in
the construction of the provision of the Constitution because unlike the Preamble to an Act, the Preamble of the
Constitution occupies the same position as other enacting words or provisions of Constitution. Charan Lal Sahu
vs. Union of India (1990) 1 SCC 613, 647 – 51 : AIR 1990 SC 1950; Jacob M Puthuparamvil vs. Kerala Water
Authority, (1991) 1 SCC 28, 41, 42: AIR 1990 SC 2228.
87
principle of equality embodied in Article 14. The word ‘discrimination’ in Article 15 Clause

1 involves an element of unfavourable bias.

Article 15(2) prohibits subjection of a citizen to any disability, liability, restriction or

condition on grounds only of religion, race, caste, sex or place of birth. The use of the word

‘only’ in the Articles 15(1) and 15(2) connotes that what is discountenanced is discrimination

purely and solely on account of any of the grounds mentioned.5

Under the U.P. Court of Wards Act, 1912, while a male proprietor could be declared

incapable of managing his property only on one of the five grounds mentioned therein, and

that too after giving him an opportunity of showing cause as to why such a declaration should

not be made, a female proprietor could be declared incapable to manage her property on any

ground and without giving her any show cause notice. The provision is bad as it amounts to

discrimination on the ground of sex. 6

Article 15(1) and 15(2) prevent the state from making any discriminatory law on the

ground of gender alone. The Constitution is thus characterized by gender equality. The

Constitution insists on equality of status and it negates gender bias. Nevertheless, by virtue of

Article 15(3), the state is permitted, despite Article 15(1), to make any special provision for

women, thus carving out a permissible departure from the rigors of Article 15 (1). Article 15

and 16 do not prohibit special treatment of women. The Constitutional mandate is infringed

only where the females would have received same treatment with males but for their sex. In

English law ‘but–for–sex’ test has been developed to mean that no less favourable treatment

is to be given to women on gender based criterion which would favour the opposite sex and

women will not be deliberately selected for less favourable treatment because of their sex.

5
M P Jain, Indian Constitutional Law, 6th Edn. 2010, Volume – 1 Page 1294, Lexis Nexis Butterworths
Wadhwa, Nagpur.
6
Rajeshwari vs State of Uttar Pradesh AIR 1954 All 608.
88
The Constitution does not prohibit the employer to consider sex in making the employment

decisions where this is done pursuant to a properly or legally chartered affirmative action

plan. 7

Sexual Harassment and No Discrimination Clause:

In an essay titled “is sexual harassment coercive?” Larry May and John C. Hughes

argue that sexual harassment against women worker is “inherently coercive” – whether the

harassment takes the form of a threat or an offer. They also maintain the harm of sexual

harassment against women “contributes to a pervasive pattern of discrimination and

exploitation based upon sex”. 8

According to them, women represent an injured class. The fact that men dominate

positions of authority and status in our society renders women vulnerable to sexual

harassment. Furthermore, the sexual harassment of female employees by male employers and

managers sparks a general increase in the frequency of the crime, since such behavior

reinforces male stereotypes of women as sexual objects.

Effective Equality and Affirmative Action:

Article 15 (3) recognizes the fact that the women in India have been socially and

economically handicapped for centuries and, as a result thereof, they cannot fully participate

in the socio-economic activities of the nation on a footing of equality. The purpose of Article

15 (3) is to eliminate this socio-economic backwardness of women and to empower them in

such a manner as to bring about effective equality between men and women. The object of

Article 15(3) is to strengthen and improve the status of the women. Article 15 (3) thus

7
Air India Cabin Crew Association vs. Yeshaswinee Merchant, (2003) 6 SCC 277:AIR 2004 SC 187
8
Larry May and John C. Hughes, “Is Sexual Harassment Coercive?” in Moral Rights In The Work Place, ed.
Gertude Ezorsky (Albany; State University of New York Press 1987) P.115 -22.
89
relieves the state from bondage of Article 15 (1) and enables it to make special provisions to

accord socio-economic equality to women.

The scope of Article 15 (3) is wide enough to cover the entire range of state activity

including that of employment. A doubt has been raised whether Article 15(3) saves any

provision concerning women, or saves only such a provision as is in their favour. 9 The better

view would appear to be that while the state can make laws containing special provisions for

women and children, it should not discriminate against them on the basis of their gender only.

This appears to be cumulative effective Articles 15 (1) and (15(3). Although there can be no

discrimination in general on the basis of sex, the Constitution itself provides for special

provisions being made for women and children by virtue of Article 15(3). Reading Articles

15 (3) and 15(1) together, it seems to be clear that while the state may discriminate in favour

of women against men it may not discriminate in faovur of men against women.

The operation of Article 15(3) can be illustrated by the following cases:

a) Under Section 497, IPC, the offence of adultery can be committed only by a male and

not by a female who cannot even be punished as an abettor. As this provision makes a special

provision for women, it is saved by Article 15(3). The Supreme Court has observed : 10

“Sex is a sound classification and although there can be no discrimination in general

on that ground, the Constitution itself provides for special provisions in the case of women

and children by clause (3) of Article 15. Articles 14 and 15 thus read together validates the

9
Mukharji, J., in Mahadeb vs. Dr. Sen, AIR 1951 Cal 563. Also Anjali vs. State of West Bengal, AIR 1952 Cal
825; CF.Bose J, ibid 825.
10
Yusuf Abdul Aziz vs State of Maharashtra, AIR 1954 SC 321:1954 SCR 930. Also see, Souwithri Vishnu vs.
Union of India, AIR 1985 SC 1618:1985 Supp.SCC 137; Revathi vs. Union of India, AIR 1988 SC 835; 1988 2
SCC 72.

90
last sentence of Section 497, IPC which prohibits the women from being punished as an

abettor of the offence of adultery”.

Upholding Section 497 the Bombay High Court has said in an earlier case that the

discrimination made by Section 497 is based not on the fact that women have sex different

from that of men, but “women in this country were so situated that special legislation was

required in order to protect them”. 11

b) The discretionary nature of power of judicial review is illustrated when the Supreme

Court even after finding that the reservation policy of the State Government in force was

contrary to Articles 14, 15 and 16, took into consideration the fact that a large number of

young girls below the age of 10 years were taught in primary schools and that it would be

preferable that such young girls are taught by women and held that reservation of 50% in

favour of female candidates was justified. 12

c) Where a female employee’s grievance was the righting of a sensuous letter expressing

love to her. Admiring her qualities and beauty, and extending unsolicited help, it was held

that the female employee’s grievance ought to have been looked into according to the

directions given in Vishaka case. 13

d) The most significant pronouncement on Article 15 (3) is the Supreme Court case

Government of Andhra Pradesh vs. P. B. Vijaya Kumar.14 The Supreme Court has ruled in

the instant case that under Article 15(3), the state may fix a quote for appointment of women

in government services. Also a rule saying that all other things being equal, preference would

11
Chagla, CJ, in Yusuf Abdul Aziz vs. State of Maharashtra, AIR 1951 Bom 470.
12
Rajesh Kumar Gupta vs. State of Uttara Pradesh, 2005, 5 SCC 172:AIR 2005 SC 25470.
13
1997 6 SCC 241: AIR 1997 SC 3011; D. S. Grewal vs. Vimmi Joshi, 2009 2 SCC 210:2009 1 JT 400.
14
AIR 1995 SC 1648 :1995 4 SCC 520
91
be given to women to the extent of 30% of posts was held valid with reference to Article

15(3).

The court has emphasized that an important limb of the concept of gender equality is

creating job opportunities for women. Making special provisions for women in respect of

employment or posts under the state is an integral part of Article 15(3). The ‘special

provision’ which the state may make to improve women’s participation in all activities under

the supervision and control of the state can be in the form of either affirmative action or

reservation.

In the year 2003, the Supreme Court upheld the classification between male and

female for certain posts, providing for appointment of a lady Principal as a proper exercise of

Constitutional obligations under Article 15(3).15 The court also referred to the earlier decision

where it was held that “as the result of the joint operation of Article 15 (1) and Article 15 (3),

the state may discriminate in favour of women against men, but it may not discriminate in

favour of men against women.16

The Supreme Court has on several occasions held that “gender equality enshrined in

Article 14 is one of the basic principles of the Constitution. 17 Feminist critiques of violence

against women suggest that the issue of Sexual Harassment at Work Place should be seen in a

larger context of patriarchy and gender hierarchies which women are constantly subjected to.

At the international level, Catherine Mackinnon, a leading feminist and legal scholar,

recognized the link between and helped situate sexual harassment of women at work place

15
Vijayalakshmi vs. Punjab University 2003 8 SCC 440, in this case, Rules 5 and 8 of Punjab University
Calendar, Volume III providing for appointment of a Lady Principal or Lady Teacher in a women’s college was
held not in violation Article 14 and 16 of the Constitution. These provisions were held to be made a special
provision under Article 15 (3).
16
Dattatraya Motiram More vs. State of Bombay AIR 1953 Bom 311, in this case, reserved seats for women in
the election were challenged on the ground that they offended Articles 14, 15 and 16 of the Constitution.
17
Gita Hariharan vs. Reserve Bank of India, 1999 2 SCC 228; Valsammapaul vs. Kochin University 1996 3
SCC 545.
92
within the larger problem of sex discrimination18. In Mackinnon Mackenzie and Co. vs. Audry
19
D’Costa , the court held that gender based discrimination in employment arises when men

and women are paid differently for the same work. However, it is important to note that

neither of this cases framed sexual harassment in work place in terms of violation of the

fundamental right to work.

The need for special legislation under Article 15 (3) for the purpose of prevention of

Sexual Harassment at the Work Place was reiterated by the Delhi High Court in U. S. Verma,

Principal, Delhi Public School Society vs. National Commission for Women.20 In this case,

an internal enquiry was conducted into allegations of Sexual Harassment made by teachers

against the Principal of the School. A parallel enquiry was also conducted by the National

Commission for Women (NCW) which found the allegations of Sexual Harassment to be

correct. While finding that the NCW is not empowered under Statute to conduct such

enquiries, the Court also said the findings of the Internal Enquiry which had exonerated the

perpetrator, on the grounds that it was in violation of the Vishaka guidelines, and that

principles of natural justice had been violated qua the complainants – teachers. The court

awarded monetary compensation to the complainants.

Protection of Rights - Article 19 (1) (a) (c) and (d):

Although this is not articulated in the Vishaka judgment, it stands to reason that

Sexual Harassment at the Work Place violates the freedom enumerated in Article 19. While

the right to work contained in Article 19 (1) (g) is violated by sexual harassment at the work

place, so too are other related freedoms.

18
Catherine A Mackinnon, Feminism Unmodified : Discourses on Life And Law, Harvard University Press,
Cambridge, 1987. Also Catherine A Mackinnon, sex equality, foundation press New York 2001 .
19
1987 2 SCC 469, in this case, the court invoked the principles of Equal Remuneration Act 1976 to challenge
lower wages paid to confidential female stenographers who were doing the same work as male stenographers
working in the general pool under the category of clerical and subordinate staff.
20
163 (2009) DLT 557
93
Right to freedom of speech and expression:

A single act of Sexual Harassment at the Work Place can violate the freedom of

speech and expression (through the presence of a threatening work environment and being

compelled to work alongside the perpetrator), can lead to the violation of speech and

expression.

Right to freedom to form associations:

By creating hostile work environment for the victim, making it uncomfortable for her

to participate in office group activities, meetings, social gatherings, violates her freedom of

associations and unions.

Right to freedom of movement:

When the victim is compelled to avoid places at work because of the presence of the

perpetrator, her freedom of movement is restricted. 21

Article 19(1) (g) – Right to practice any profession, or carryout any occupation, trade or

business.

For the first time, Supreme Court in Vishaka vs. State of Rajasthan held that one of

the logical consequences of incidence of Sexual Harassment at Work Place is the violation of

the woman’s fundamental right under Article 19 (1) (g) “to business”. The fundamental right

to carry any occupation, trade or profession, depends on the availability of a ‘safe’ working

21
Indira Jaisingh, Sexual Harassment at Work Place, Edited by Shomona Khanna, 2nd Edn,(Universal Law
Publishing Co. Pvt. Ltd, New Delhi), P.62
94
environment. Sexual harassment of women at their places of work exposes them to great risk

and hazard and places them at an unfair position vis-à-vis other employees. This adversely

effect their ability to realize their Constitutionally guaranteed rights under Article 19(1) (g).

In a recent judgment, the Division Bench of Delhi High Court held that if the boss or

employer calls on an employee at any other place outside the work place in connection of the

office work, whether at his work or a mess, that ‘other place’ shall amount to work place if

any kind of harassment is meted out to that lady at such place. 22

In K.Pusparaj vs. Comptroller and Auditor General and others23, it was pointed out

how the brash and sexually exploitative behaviuor of the accused had rendered the working

environment in the institution unsafe for the female employees employed in the office.

The accused was charged, among other instances of indecent conduct, which repeated

serious acts of drunkenness, soliciting sexual favours, blocking passage of ladies, verbal

abuse, obscene gestures and sounds, attempts to get uncomfortably close to their person, and

a general tendency to physically alarm the women. It was made clear in the complaint given

by the female employees that there was a general fear among them of being in the vicinity of

the person accused.

The court held that the acts committed a violation of rights under Article 19(1)(g) in

addition to Articles 14, 15 and 21. It was noted that the fundamental right to carry on any

occupation, trade or profession depends on the availability of save working environment.

22
Saurabh Kumar Mallick vs. the Comptroller and Auditor General of India and another, W.P.(C)No.8649/
2007 decided on 9.5.2008.
23
2005 2 SLJ 235 CAT
95
Right to protection of life and liberty:

The Supreme Court has on many occasions stressed that the “Right to life” under

Article 21 guarantees more than “living out a mere animal existence” 24 The right to life

necessarily implies the right to live with human dignity and encompasses those aspects of life

that make life meaningful, complete and worth living. Gender discrimination has been

recognized as an obstacle to full realization of the right to life under Article 21.

In C. Masilamani Mudaliar vs. Idol of Swaminathaswamy Thirukkovil, 25 the Supreme

Court held that equality, dignity of a person and the right to development are inherent rights

common to every human being. For the meaningful enjoyment of right to life under Article

21, every woman is entitled to the elimination of gender obstacles and discrimination. The

court reiterated the State has an obligation to eliminate gender based discrimination, and to

create conditions and facilities conducive for women to realize their right to economic

development while enjoying social and cultural rights.

In Vishaka, the court held that each incident of sexual harassment at Work Place is a

violation of the Right to life and the concomitant right to dignity, under Article 21. The court

explained that the principle of gender equality demands protection from sexual harassment at

the work place and the right to work with dignity, as recognized in international conventions

and norms. Furthermore, the court explicitly stated that the legislature and the executive are

primarily responsible for ensuring the safety and dignity of women through legislation and

the creation of enforcement mechanisms. However, in the absence of existing protective

24
See Francis Coralie Mullin vs. Administrator, Union Territory of Delhi 1981 1 SCC 608; State of
Maharashtra vs. Chandrabhan, 1983 3 SCC 387: Olga Tellis vs. Bombay Municipal Corporation, 1985, 3 SCC
545.
25
1996 8 SCC 525. See also Mathu Kishwar vs. State of Bihar, 1996 5 SCC 125.
96
mechanisms, the court in Vishaka evolved guidelines prescribing sexual harassment at work

place as violation women workers’ fundamental rights under Article 14, 19 and 21.

26
In Deputy Inspector General of Police vs. S. Samuthiram, in a case relating to

sexual harassment committed by a police man while on duty, and were criminal as well as

disciplinary proceedings were initiated against him, the Supreme Court observed “every

citizen in this country has a right to live with dignity and honour and this a fundamental right

guaranteed under Article 21 of the Constitution of India. Sexual Harassment, like eve teasing

of women amounts to violation of rights guaranteed under articles 14 and 15 as well.” 27

Sexual Harassment at Work Place is a violation of the right to privacy:

The right to privacy is incorporated in the right to life and personal liberty guaranteed
28
under Article 21. This right was established in Kharak Singh vs. State of Uttar Pradesh.

The petitioner in this case was kept under continuous surveillance by the police on grounds of

“certain suspicions”. In a dissenting judgment delivered by Subbarao and Shah, this was held

to be a violation of the petitioner’s right to privacy found to be an element of Right to

personal liberty under Article 21.

29
In State of Maharashtra vs. Madhukar Narayan Mardikar, the court held that:

“even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and

when he wishes. She is entitled to protect her person if there is any attempt to violate it

against her wish. She is equally entitled to the protection of law”.

26
2013 1 SCC 598
27
Ibid at para26
28
1964 1 SCR 332
29
1991 1 SCC 57
97
 30
Elaborating on the Right to Privacy of Women, the court in Neera Mathur vs. LIC, held

that a prospective employer is prohibited from asking female candidates personal questions

which modest and self respect may preclude the disclosure of, such as questions regarding

pregnancy, menstruation, abortions, miscarriage, etc.

Sexual Harassment Against Women at Work Place is described as a form of

communication that violates its victim’s privacy rights. 31 This interpersonal definition

purports to confuse the more subtle instances of sexual harassment while circumventing those

sexual advances that are not sexually harassing.

Directive Principles of State Policy:

The Directive Principles and the Fundamental Rights share a symbiotic relationship

because both are founded upon human rights. While the purpose of Fundamental Right is to

create an egalitarian society, to free all citizens from coercion or restriction, and ensure

liberty is available to all, the purpose of Directive Principles is to establish certain social and

economic goals for immediate attainment via a non violent social revolution.

The following Directive Principles of State policy is relevant to the prevention of

Sexual Harassment at the Work Place:

 Article 38 enjoins the State to secure a social order, which promotes social, economic

and political justice. (sub article (a) ) and to strive, in particular, to minimize

inequalities in status, facilities and opportunities amongst people (sub article (b)).

 Article 39 requires that the State should direct its policy towards securing that all

citizens, men and women equally, have the right to an adequate means of livelihood

30
1992 1 SCC 286
31
Edmund Wall, Confrontations and decisions on Sexual Harassment, revised Edition, (Prometheus Books,
New York 2000), p.63.
98
 (sub article (a) ) and that there is equal pay for equal work for both men and women

(sub article (d)). It further requires that the State shall endeavour to ensure that the

health and strength of workers, men and women are not abused.

 Article 41 requires that the State shall, within the limits of its economic capacity and

development, make effective provisions for securing Right to work.

 Article 42 ensures provision for just and humane conditions of work and maternity

relief. In Arati Durgaram Gavandi vs. Mrs. Shakunthla A Mudbidri,32 the petitioner

made the following contentions in respect of the working environment in the

institution. She was subjected to lude remarks and gesture by the accused; the accused

tried to sexually harass her on one occasion in the institution; she was transferred

from the main office to a different plant, 24 kilometers away which according to the

petitioner was on account of her ‘not cooperating with the accused’; the plant to

which the lady was transferred was closed down she was not called back and was left

behind alone with 22 male security guards purportedly on administrative grounds. On

account of continued telephonic harassment, lude suggestions and proposals and

further harassment by a related official, the lady filed a police complaint which was

retaliated by a physical assault by the accused.

The victim submitted representations to the District Collector, Maharashtra Women’s

Commission, Police Authority, and lastly, after the physical assault to the

management of the company, chronologically in that order.

The employer company however, chose to blame and counter-attack the allegations of

the victim. It was claimed that the petitioner had requested a transfer, back to the

32
W.P. No.8826 of 2004
99
original office, and the request had been granted in December 2003. However, the

petitioner was alleged to have refused to accept the letter. It was further contended

that the lady had never mentioned an issue of sexual harassment before 31 st August

2004, when the above mentioned representation to the management was made. The

fact that the representation was made on the basis of a recent assault of the victim by

the accused was ignored.

The employer appointed an individual lawyer as an Enquiry Officer, who exonerated

the accused by a report made on the 7th October 2004. The services of the lady were

terminated on the basis of the report, exactly five days later, on 12 th October 2004.

An order of reinstatement with consequential benefits, on the grounds of unfair labour

practices, by a Labour Court under the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 proved futile, as the company

refused to pay heed to the same.

This case is a clear example of the provisions of Article 42 of the Constitution and the

victim was made to work alone with 22 male security guards once she lodged a

complaint against the accused who is a superior officer at her work place. The

employer did not even bother to allow her to work under humane conditions at the

work spot.

Article 42, naturally, needs to be read along with the other provisions which are

contained in the Fundamental Rights and the Preamble and it emphasizes, in the light

of the Preamble of values, that the State is meant to be caring and compassionate

about those who are under privileged or those who are disadvantaged and those who

100
 may not even need special provisions but may insist upon the simple compliance with

Constitutional Guarantees.

 Article 51 A – In addition to the Directive Principles of State Policy, the Constitution

also charges all citizens with certain fundamental duties. Accordingly, it is the duty of
33
every citizen to abide by the Constitution and respect its ideals and institutions.

This includes the principle of gender equality and non discrimination on the ground of

sex enshrined in the equality code of the Constitution, and the fundamental freedoms

and the Right to Life of Women as elucidated in judgments of its Constitutional

Courts, including the Vishaka judgment. Sub article (e) explicitly directs all citizens to

renounce practices derogatory to the dignity of women.

34
In G. V. Vishwanath vs. Management of Himalaya Drug Company, Bangalore,

quoting the judgment of Supreme Court in Apparel Export Promotion Council vs.

A. K. Chopra, the High Court of Karnataka observed that:

“The Supreme Court has noticed the laudable principle of safe working environment

in an industry. The Supreme Court has also noticed the evil effect of an employee’s

misbehavior with women employees. It is only thereafter the Supreme Court has

chosen to provide guidelines which were declared to be law under Article 141 of the

Constitution. This court has to say that women as on today join services for variety of

reasons. It may be for augmenting better income or it may be to sustain the family or

it may be for any other family reason in a given circumstances. Such working women

are to be protected by the employer so that a safe environment for women is available

33
For this purpose, C. Jolly George Varghese vs. Bank of Cochin 1980 2 SCC 360: Vishaka vs. State of
Rajasthan, 1997 6 SCC 241; PUCL vs. Union of India 1997 1 SCC 301; Apparel Export Promotion Council vs.
A. K. Chopra, 1999 1 SCC 759.
34
2006 2 Karnataka Law Journal 47.
101
in an industry. Any violation in not providing safe environment would result in

unwanted and unethical misconduct touching upon the dignity of an employee in an

industry. Neither the employer nor the courts can be silent spectator to this issue.

Employer of course has to be very strict in a laudable object of providing a dignified

safety environment in terms of Article 21 of the Constitution of India to woman

employee”.

Similarly in Aarti Gavandi case, the Bombay High Court held that:

“The right to gender equality is intrinsic to the right to life under Article 21 of

the Constitution.……………. The provisions of the Constitution recognize

gender equality as a fundamental right. Gender equality in all its dimensions

is a basic human right which is recognized by and embodied in the provisions

of the Constitution. The broad sweep of the human rights to gender equality

traverses every facet of the position of a woman in a society. The right

comprehends the preservation of the dignity of women. At a basic level,

gender equality postulates protection of women against all those practices

which invade upon the dignity of being and the privacy of the person. A

dignified existence includes the right to earn one’s livelihood. In conditions

that are fair and gender neutral. A condition which operates to disadvantage a

woman worker on the ground of gender is fundamentally anachronistic to the

vision of our constitutional order. Gender as a concert has wider dimensions

than sex. Gender equality postulates the realization of societal values that

travel beyond a mere notion of sexual equality. Gender in that sense denotes

the realization of every facet of personality that contributes to the fullness of

life to which a woman is entitled”.

102
 As rightly pointed out by Justice Varma in the Report of the Committee on

Amendments to Criminal Law, “in view of Article 51 A (e) of the Constitution which

is the fundamental duty of every citizen to renounce practices which are derogatory to

the dignity of women and the guaranteed article under the Constitution, we have

already in our Constitution duopoly of obligations of the State as well as obligations

of the individuals. Unfortunately, as a result of political class / establishment being

unable to take a firm position, unequivocal in character to reinstate these as

fundamental principles of equality in which Parliamentary Democracy and

Republican character of the nation will be affirmed; and as a result of inaction and

hiding the apathy and the delegated responsibility of administration of laws by the

police, the main discourse relating to subjugation of women has been lost sight of”. 35

Constitutional Remedies for the Violation of Fundamental Rights:

Article 32, Article 226 and Article 227

Instead of leaving it to general law of remedies under Civil Law, the Constitution of

India has provided certain special remedies for rights conferred by the Constitution. Article

32 of the Constitution guarantees the right to move the Supreme Court through appropriate

writ petitions for the enforcement of fundamental rights found in part-3. Similarly Article 226

provides for the right to move the appropriate High Courts for the enforcement of

Fundamental and other legal rights.

It is important that petitioners in cases of Sexual Harassment at work place show that

such action affects or invades her fundamental rights, in order to seek the appropriate writs or

35
Justice Verma, Report of the Committee on amendments to Criminal Law Chapter-1, P.42
103
orders. There must be a clear breach of fundamental right, which should not depend on the

determination of questions of law or fact.

In Vishaka, the Supreme Court enunciated the power of Court under Article 32 to

make fundamental rights meaningful. The obligation of the court under Article 32 to enforce

fundamental right was seen to extend to the incorporation of progressive international law in

providing for a lacuna in the domestic law. Such judge-made law has, in Vishaka and

thereafter, been treated as law declared by the Supreme Court under Article 141 of the

Constitution.

In addition to the remedies available under Article 32 and Article 226 for enforcement

of fundamental rights, Article 227 of the Constitution also confers upon every High Court the

power of superintendence over all the courts and tribunals throughout its territorial

jurisdiction. With enactment of the 2013 Act and the statutory recognition of internal

complaints committees and local complaints committees, the power of judicial review under

Article 227 has become very important. Under this provision, therefore, any person aggrieved

by the decision of a statutory appellate authority under the 2013 Act can approach the High

Court concerned for redressal. The court can also proceed suo motu that is, on its own

motion. This is in addition to the remedy already available under Articles 32 and 226 for

violation of fundamental rights.

The two primary limitations of constitutional remedy under Articles 32 and 226 are i)

these remedies apply only against the State and ii) the legal process itself is cumbersome. But

it is pertinent to note that in Bodhisattva Gautam,36 the Supreme Court stated that

fundamental rights can be enforced even against the private bodies and individuals.

36
(1996 ) 1 SCC 490
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When can a writ petition be filed in sexual harassment?

“A victim of sexual harassment may file writ petition under Article 32 in the Supreme Court

and under Article 226 in the High Court in the following circumstances:

 Against the employer, if there was an unlawful termination of her services upon

refusal to comply with sexual favours;

 Against the employer, for conduct of an enquiry against the harasser, if sexual

harassment was committed;

 Against the employer, for failure or refusal to take action, if sexual harassment was

committed;

 When the committee establish in accordance with the Vishakha guidelines has passed

an order in violation of principles of natural justice, one can petition to have it set

aside;

 For a transfer from a place where the offender works;

 For a transfer of the offender;

 For failure to conduct an enquiry in terms of full compliance of the Vishakha

guidelines and the 2013 Act;

 Where the internal guidelines / policies formulated by the organization / institution

have been violated by it.

In addition, a writ petition under Article 227 can be filed in the cases of;

 Erroneous assumption or excess of jurisdiction;

105
  Refusal to exercise jurisdiction;

 Error of law apparent on the face of the records (but not on concurrence findings of

fact);

 Violation of the principles of natural justice;

 Arbitrary exercise of authority or discretion;

 Arriving at a finding which is perverse or based on no material;

 A flagrant error of procedure;

 Order resulting in manifest injustice;

 Error on facts and in law or even otherwise”;37

A victim of sexual harassment who is employed in the public sector can file a writ

petition for a declaration that her fundamental rights have been violated and seek

compensation. Ordinarily, as a matter of practice, such petitions ought to be filed in the

relevant High Court before approaching the Supreme Court 38

Such writs against a public sector undertaking will be entertained only after an enquiry or

court has held that sexual harassment at the workplace has taken and the co-worker and

employer are held liable for the acts of harassment.

However, a different approach was adopted by the Delhi High Court in a recent decision 39

relating to allegations of sexual harassment by a number of school teachers against the

37
Indira Jaisingh, Sexual Harassment at Work Place, Universal Law Publishing Co. Pvt Ltd, 2nd Edn. 2014 p 78.
38
In Kannubhai Brahmbhatt vs. State of Gujarat, (1987) 2 SCR 314, the Supreme Court discouraged petitions
under Article 32, without first resorting to Article 226.
39
U. S. Verma, Principal, Delhi Public School Society vs. National Commission for Women, 163 (2009) DLT
557.
106
principal of the school, and where the enquiry conducted by the school authorities was found

severely deficient with regard to the Vishaka guidelines. The Court observed that in light of

the elapse of eight long years, its findings that the enquiry had not been conducted in

accordance with law would provide cold comfort to the complainant-teachers, many of whom

had found alternative employment. It observed:

“In the normal circumstances a finding that the disciplinary or enquiry proceedings
were vitiated would have lead to the Court remitting the matter to the employer to take
suitable steps for Constituting another Committee in accordance with law. That course
too however, is inappropriate having regard to the length of time and situation of the
parties now. The teacher-complainants’ concern therefore would have to go un-
redressed, with no further scope of enquiry into the truth or otherwise of their
allegations.”40
The Court, accordingly, rather than reverting the matter to the internal committee for re-

enquiry, directed that the employer, which had clearly failed in its duty to follow the Vishaka

guidelines, pay monetary compensation to the complainants-teachers.

These developments in the law are a major step forward for women in the public

sector as well as the private sector, because they are now in a position to file petitions in the

concerned High Court or the Supreme Court for violations of their fundamental rights in the

event of sexual harassment at the workplace. However, in such cases, the Court normally

does not enter into disputed questions of fact, and the only relief the Court is likely to grant is

a direction to the employer to create Sexual Harassment Committee to enquire into the sexual

harassment, and to provide compensation to the aggrieved woman if harassment is proved

upon such enquiry. If a committee was already set up, but was not in accordance with the law
41
or the findings were against the women, she may also file a petition challenging the

findings as perverse.

40
Ibid. at para 81.
41
That is, the law as laid down in Vishaka, Medha Kotwal Lele and the 2103 Act.
107