A law that raises more questions than it answers

Rare instance: The Supreme Court used its extraordinary powers under Article 142 of the Constitution to formulate the Vishaka guidelines. Photo: R.V. Moorthy  

Complaints by two law interns against two retired judges of the Supreme Court have created several controversies, which include the mechanism required for conducting enquiries against members of the higher judiciary. They have also thrown up the question of the application of ‘Vishaka’ principles which set up a mechanism to enquire into such complaints. The aborted action pursuant to the report of the three-judge committee nominated by the Chief Justice of India also received flak from different quarters. While the Supreme Court washed its hands of the report, which found a prima facie case, the judge himself questioned the wisdom of constituting a committee knowing full well that he had already retired from service and the law intern was not an employee of the Supreme Court. He also lamented that he was unjustly dealt with by the court at the cost of his honour.

In the midst of this debate, pursuant to the direction issued by the Supreme Court in Binu Tamta’s case (2013), it notified The Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013. Many high courts notified such regulations and formed their complaints committees.

However, the full court of the Supreme Court hurriedly decided that no more complaints of sexual harassment would be entertained by the court against its retired judges. Subsequently, when a complaint against another retired judge was not entertained, the aggrieved intern challenged the decision and notice has been ordered. It was observed that a ‘mechanism’ would have to be found to deal with complaints against even retired judges. The mechanism to be evolved and its source of power were not explained.

When Chief Justice J.S. Verma embarked on a law to deal with complaints of Sexual Harassment at the Workplace (SHW), he drew support from the Convention on Elimination of Discrimination Against Women (CEDAW) in Vishaka’s case. It defined ‘sexual harassment’ and directed the formation of ‘Complaints Committees’ consisting predominantly of women and including an NGO. They were made applicable to private work establishments. It was a rare instance where in the absence of a parliamentary enactment, the court itself enacted a law with its extraordinary power under Article 142 of the Constitution. Conscious of its limitation in making such a law, the court said its “directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.”

Ten years later, although a bill was introduced in 2007, for unexplained reasons it was not made into an Act. Following Vishaka, in Medha Kotewal Lele’s case (2013), all governments were directed to amend the relevant service rules, and incorporate a provision by which the enquiry report given by a complaints committee would replace the enquiry by an employer, who was to initiate action based on the report alone. Under this process, an aggrieved woman employee need not depose more than once — first before the Vishaka Committee and again during a departmental enquiry.

Though the Central government amended its Discipline and Appeal Rules, it was reported that many State governments were yet to amend their rules under Article 309 of the Constitution. The Central government amended only the model standing orders in the Industrial Employment (Standing Order) Rules. At this stage, Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013(SHW Act) and got assent from the President (April 2013). It came into effect from December 9, 2013. Curiously, the Act nowhere referred to the Vishaka judgment. Its Objects and Reasons only referred to Articles 15 & 51A of the Constitution. The SHW Act borrowed the definition of the term ‘Sexual Harassment’ from Vishaka. It mandates all the employers to constitute an Internal Complaints Committee and requires that at least 50 per cent membership should be women. Contrary to the earlier direction of the Supreme Court, the SHW Act put in place a two-tier mechanism for enquiring into complaints. When the ICC arrives at a conclusion on an allegation, it can recommend to the employer action against the person concerned in terms of service rules (in such an enquiry the employer will nominate his own enquiry officer who need not be a female). The SHW Act also provides for a settlement procedure, appeal to a court/tribunal against the decision of the ICC. It provides for the prosecution of the person concerned. In case of malicious intent of a complainant, retributory action is contemplated.

Following the special law enacted by Parliament, the Vishaka guidelines will no longer apply since the Supreme Court itself had ruled that its guidelines would be followed only till a law is made by Parliament. A number of State governments, public sector and private employers have not amended their service rule/statutory orders switching over to one-time trial and the binding nature of the report of the complaint committee. Hence, in future, an aggrieved woman will have to depose before the ICC and, in case the ICC agrees with her complaint, once again before the employer under disciplinary rules.

The future application of regulations framed by the Supreme Court and other courts drawing their power only from Vishaka is in doubt since the power to frame rules under the new Act vests solely with the Centre. Parliament, no doubt, had ignored the earlier directions issued by the Supreme Court but it attempts to safeguard the interest of persons who are accused of harassment in workplace by providing for Conciliation, Appeal and retributory action in case of complaints with malicious intent.

The SHW Act has thrown up more questions than what it seeks to achieve. It is because Vishaka limited its operation till the time a new law was made. In future, a person charged with sexual harassment is likely to demand that he should be tried only under the SHW Act and not under the earlier rules or directions by courts. It is not clear under which authority the Supreme Court constituted a three-member committee to go into the allegations against Justice A.K. Ganguly. Further after resolving not to entertain future complaints against retired judges but entertaining a writ petition so as to explore the possibility of evolving a mechanism to deal with complaints against persons who ceased to be in employment. If a person is not in the employ of an employer, then the SHW Act has no mechanism to deal with complaints. The Act contemplates only disciplinary action against a person accused of committing SHW and no action can be initiated after anyone’s retirement. The law also does not deal with conduct outside the workplace unless it is connected to the employment.

In order to inquire into complaints of sexual harassment of women at any place by anyone, a special criminal law must be put in place to deal with SHW offences delinking them from employment rules as was done in Tamil Nadu which enacted the Tamil Nadu Prohibition of Harassment of Women Act, 1998 to deal with such type of cases.

(Justice K. Chandru is retired judge, High Court, Madras)

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Printable version | Jan 14, 2022 4:15:45 AM |

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