Sexual harassment in Supreme Court of India

First disciplinary order of Supreme Court in sexual harassment case.

Sexual harassment and gender sensitivity at work places is an issue which requires serious attention as this is seriously related to making work places safe for women however personal over sensitivity of an individual about these matters shall always be a matter of concern. India has already ratified United Nation’s Convention on the Elimination of all Forms of Discrimination against Women, on the 25th June, 1993.

The Supreme Court of India in their judgement in August, 1997, in the case of Vishaka v. State of Rajasthan, recognizing the International Conventions and Norms, interpreted gender equality of women, in relation to work and held that sexual harassment of women at the workplace, is against their dignity, and violative of Article 14, 15 (1) and 21 of the Constitution of India. It also held that it is the violation of the fundamental rights under Article 19 (1) (g) ‘to practice any profession or to carry out any occupation, trade or business.’ Therefore it laid down a binding guide lines in this regard.

Guidelines to prevent sexual harassment issued in Vishakha Case:

1. Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition: For this purpose,sexual harassment includes such unwelcome sexually determined behaviour (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 woman 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 by visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Step: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) 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.
(c) 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.
(d) 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 work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism: Whether or not such conduct constitutions an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be heated by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:  Employees should be allowed to raise issues sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer – Employee Meetings.

9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in a suitable manner.

10. Third Party Harassment: Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Again in AEPC v. AK Chopra, Supreme Court decided:

This was the question formulated by Supreme Court:

Does an action of the superior against a female employee which is against moral sanctions and does not withstand test of decency and modesty not amount to sexual harassment ? Is physical contact with the female employee an essential ingredient of such a charge ? Does the allegation that the superior ‘tried to molest’ a female employee at the place of work, not constitute an act unbecoming of good conduct and behaviour expected from the superior ?

And it answered the question in these words:

Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment.

Though the Supreme Court in it’s previous decision in the case of Vishakha v. State of Rajasthan had given directions (in the year 1997 !) for formation of Committees at work places to look into the grievances of sexual harassment, it took no step to form such committee in it’s own establishment. With a view to redress such grivances in the premises of Supreme Court of India, itself, on 21st September 2013 SCI promulgated:

THE GENDER SENSITISATION & SEXUAL HARASSMENT OF WOMEN AT THE SUPREME COURT OF INDIA(PREVENTION, PROHIBITION AND REDRESSAL) REGULATIONS, 2013.

The complaint about sexual harassment:

A complaint of indecent behaviour bordering on sexual harassment was made against a practicing lawyer. The Committee under aforesaid Regulations of 2013 inquired into the matter and recommended that the said Advocate Mr. C.S. Nagesh, be barred from the premises of Supreme Court for a period of one year.

The Chief Justice of India, however did not accept the recommendation in entirety and barred the concerned advocate/lawyer for a period of six months only.

The relevant order dated 15th March, 2014, stated to have been passed under Regulation 15(c) can be reached here.

Comment: This is a new branch of discipline being developed. There are many new questions being raised by this order:

  1. In the absence of any law, does the order passed by Chief Justice of India, on administrative side, has sanction of law, especially when regulations do not provide for any punishment?
  2. Does this order serve a precedent to rusticate a person or to transfer out a person for minimum 6 months?
  3. The order of rustication being passed by Chief Justice of India himself, what are the judicial remedies against it?
  4. Would any court in the country, judicially review order passed by Chief Justice of India?

Judicial Review: Power of Supreme Court.

Principles for review by Supreme Court of Philippines:

Supreme Court of  a country is the last court of record. Thereafter, no remedy of review of an order is left to a litigant. What should be the principles to decide the scope of judicial review by last court of land:

in the exercise of the Supreme Court’s power of review, the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings of facts of the CA are conclusive and binding on the Court.  However, the Court had recognized several exceptions to this rule, to wit:

(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible;
(3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of facts;
(5) when the findings of facts are conflicting;
(6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee;
(7) when the findings are contrary to the trial court;
(8) when the findings are conclusions without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and
(11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. ………….

(Italics in original; underscoring supplied; citations omitted)

Insular Life Assurance Company, Ltd. v. Court of Appeals. (G.R. No. 126850, April 28, 2004, 428 SCRA 79, 85-86).(Supreme court of Philippines)

Judgment and court record is sacrosanct

Judgment and court record which has attained finality is sacrosanct.

A fact recorded in Judgment can not be challenged for the first time before Supreme Court.

Supreme Court is bound to accept the statement of the judges recorded in their judgment and, therefore, it cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars such an action and judicial decorum restrains it.
Supreme Court cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. Matters of judicial record are unquestionable and not open to doubt. Judges cannot be dragged into the arena. If the judges say in their judgments that something was done, said or admitted before them, that has to be the last word on the subject. Judges record is conclusive.

Procedure for error in court record:

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Witness in court through attorney

Is power of attorney holder, a competent witness to depose on behalf of the principal?

Attorney is a mere legal representative or an agent. Without anything more s/he can not have personal knowledge of the acts done by the principal, directly. Can such an attorney be competent witness?

Agent/ attorney under Civil Procedure code 1908, Order 3 Rule 1 & 2.

There was a divergence of opinion in different High Courts on the above question which was settled by Supreme Court as under:

The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
[Source: Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217.]

Right of speedy justice in India

Justice delivery system in India:

Delay in justice:

Justice delivery system in India is notorious for delay. Presently no procedural changes are seen in action to change that except a little strict attitude of Supreme Court. But with very large number of pending litigation, it appears to be only nostalgic. These are observations of Supreme Court:

In a democratic body polity which is governed by a written Constitution and where Rule of Law is paramount, judiciary is regarded as sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied. Sacrosanctity of rule of law neither recognizes a master and a slave nor does it conceive of a ruler and a subject but, in quintessentially, encapsulates and sings in glory of the values of liberty, equality and justice In accordance with law requiring the present generation to have the responsibility to sustain them with all fairness for the posterity ostracising all affectations. To maintain the sacredness of democracy, sacrifice in continuum by every member of the collective is a categorical imperative. The fundamental conception of democracy can only be preserved as a colossal and priceless treasure where virtue and values of justice rule supreme and intellectual anaemia is kept at bay by constant patience, consistent perseverance, and argus-eyed vigilance. The foundation of justice, apart from other things, rests on the speedy delineation of the lis pending in courts. It would not be an exaggeration to state that it is the primary morality of justice and ethical fulcrum of the judiciary. Its profundity lies in not allowing anything to cripple the same or to do any act which would freeze it or make it suffer from impotency. Delayed delineation of a controversy in a court of law creates a dent in the normative dispensation of justice and in the ultimate eventuate, the Bench and the Bar gradually lose their reverence, for the sense of divinity and nobility really flows from institutional serviceability. Therefore, historically, emphasis has been laid on individual institutionalism and collective institutionalism of an adjudicator while administering justice. It can be stated without any fear of contradiction that the collective collegiality can never be regarded as an alien concept to speedy dispensation of justice. That is the hallmark of duty, and that is the real measure.
…..it is clear as day that everyone involved in the system of dispensation of justice has to inspire the confidence of the common man in the effectiveness of the judicial system. Sustenance of faith has to be treated as spinal sans sympathy or indulgence. If someone considers the task to be herculean, the same has to be performed with solemnity, for faith is the ‘elan vital’ of our system.
…..Coming to the proceedings before the High Court from the date of presentation of the second appeal till the date of admission, the manner in which it has progressed is not only perplexing but also shocking. We are inclined to think that the Court should not have shown indulgence of such magnitude by adjourning the matter when the counsel for the appellant was not present. It is difficult to envision why the Court directed fresh notice to the appellant when there was nothing suggestive for passing of such an order. The matter should have been dealt with taking a recourse to the provisions in the Code of Civil Procedure. It is also astonishing that the lawyers sought adjournments in a routine manner and the court also acceded to such prayers. When the matter stood dismissed, though an application for restoration was filed, yet it was listed after a long lapse of time. Adding to the misery, the concerned official took his own time to put the file in order. From the Registrar General’s communication it is perceptible that some disciplinary action has been initiated against the erring official. That is another matter and we do not intend to say anything in that regard. But the fact that cannot be brushed aside is that there is enormous delay in dealing with the case. Had timely effort been made and due concern bestowed, it could have been avoided. There may be cases where delay may be unavoidable. We do not intend to give illustrations, for facts in the said cases shall speak for themselves. In the case at hand, as we perceive, the learned counsel sought adjournment after adjournment in a nonchalant manner and the same were granted in a routine fashion. It is the duty of the counsel as the officer of the court to assist the court in a properly prepared manner and not to seek unnecessary adjournments. Getting an adjournment is neither an art nor science. It has never been appreciated by the courts. All who are involved in the justice dispensation system, which includes the Judges, the lawyers, the judicial officers who work in courts, the law officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy is put to rest. Shifting the blame is not the cure. Acceptance of responsibility and dealing with it like a captain in the frontier is the necessity of the time. It is worthy to state that diligence brings satisfaction. There has to be strong resolve in the mind to carry out the responsibility with devotion. A time has come when all concerned are required to abandon idleness and arouse oneself and see to it that the syndrome of delay does not erode the concept of dispensation of expeditious justice which is the constitutional command. Sagacious acceptance of the deviation and necessitous steps taken for the redressal of the same would be a bright lamp which would gradually become a laser beam. This is the expectation of the collective, and the said expectation has to become a reality. Expectations are not to remain at the stage of hope. They have to be metamorphosed to actuality. Long back, Francis Bacon, in his aphoristic style, had said:

“Hope is good breakfast, but it is bad supper”. 

[Source: Noor Mohammed vs Jetha Nand (Supreme Court of India)]

Ban on Solar Fims by Supreme Court of India

The supreme court of india. Taken about 170 m ...

Short analysis of Supreme Court’s unreasonable decision
to ban the use of solar films on cars in India.

It is very rare for judges to reach out of their Ivory Tower and express about the ground realities of life. In one such rare occasion, a Supreme Court of India’s judge G S Singhvi speaking at a seminar observed:

“It is sad to say that my generation has failed the nation. In a country where 700 million people live below the poverty line, we tend to talk about justice. We talk about our fundamental rights being trampled upon but what about those people who do not get two square meals a day, have no right to education, shelter, clothing and other basic amenities. The country is divided into rural and urban and the idea about equality and fraternity needs to be pondered about and the entire process of development had taken place at the cost of rural people ……….. I feel guilty when I read about equality and fraternity and think about the labourers and farmers who have made our lives comfortable and easy. The ‘jan sevaks’ (Public Servants) are fast becoming our masters, the first citizens followed by the rich and the poor only as third class citizens.”

[Source: http://m.timesofindia.com/Young-lawyers-facing-multiple-challenges-Supreme-Court-judge/articleshow/13112646.cms]

Constitutionalism in India means that people’s sovereignty is supreme and unlimited and the constituents of the state have limited powers.”

[Source: http://articles.timesofindia.indiatimes.com/2012-02-26/nagpur/31100894_1_culture-guest-lecture-justa-causa]

The VIP class problems:

The problem is that we all know about the failures. But what will take it to put into practice? What about the class called VIP’s? Who are they and why they are VIP’s? Problem is that only thing we see in focus is MONEY and DOMINATION. All we have to do is to do our own work diligently, even if some time, the reciprocation is not fair. It is not easy but practice can make anyone perfect. I will misquote Gandhi: ‘When you do something, remember the face of the poorest of poor’.

Constitutionalism and judicial fiats:

As regards the second part, it is another story. While Constitutionalism means Rule of law and not Fiats issued at Will; another decision of Supreme Court nearly rubs it on wrong way. Following direction has been given by Supreme Court:

We have no hesitation in holding that use of black films or any other material upon safety glass, windscreen and side windows is impermissible. In terms of Rule 100(2), 70 per cent and 50 per cent VLT standard are relatable to the manufacture of the safety glasses for the windshields (front and rear) and the side windows respectively. Use of films or any other material upon the windscreen or the side windows is impermissible in law. It is the VLT of the safety glass without any additional material being pasted upon the safety glasses which must conform with manufacture specifications. ….. The competent officer of the traffic police or any other authorized person shall challan such vehicles for violating Rules 92 and 100 of the Rules with effect from the specified date and thereupon shall also remove the black films from the offending vehicles. (Full judgment is here.)

Natural justice not followed:

By one stroke of pen, an entire industry has been struck off. I wonder if they were a party to it. If not then it is violative of principles of natural justice. It beyond logical comprehension that if Manufacturer does not apply tinted glasses, I can not apply solar film to it? Off course it must meet statutory standard. Merely because law enforcement agency do not have technical equipment, all films are to be removed. By same logic why not every person be kept in lock and key at night as most crimes are committed at night. Curfew will be even better. Passes can be issued to VIP’s to wander at night, under Rules. Yes ban the liquor/Alcohol. A large number crime are committed under its influence. Licenses can be issued to VIP’s for that as well.

Consideration of irrelevant facts:

Judgment relies upon the practice of not using films in countries where the maximum temperature never exceeds 25 degrees. Here it touches 48 degrees centigrade every summer. In fact the word ‘weather’ does not even occurs in the judgment. The very basis of applying solar films is missing. Thus the judgment shall be hit by Wednesbury’s arbitrariness as it excludes an important and relevant fact from consideration while deciding an issue and therefore is not a reasonable judgment. Those interested in full judgment of Wednesbury’s case, can find it here. Some other arguments have been raised by another Gentleman here and therefore are not repeated.

Hypocrisy of Supreme Court in entertaining direct petition:

Another legal issue is that this order has been passed under article 32 of Constitution and is purported to enforce article 21 of Constitution in a Public Interest Litigation (PIL). Article 21 guarantees right to life to every citizen. If today a Habeas Corpus petition is filed in Supreme Court saying that life of a girl is in danger, Supreme Court will not entertain that petition and ask the party to go to respective High Court. Was solar film matter so important that Supreme Court could not have waited for the opinion of High Courts?

Photo credit: Wikipedia

Public Interest Litigation: Ground rules in India

Public Interest Litigation: Directions by Supreme Court.

Rules for filing Public Interest Litigation:

Directions by Supreme Court of India:

In order to preserve the purity and sanctity of the PIL (Public Interest Litigation), it has become imperative to issue the following directions:-

(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter.

(3) The courts should prima facie verify the credentials of the petitioner before entertaining a Public Interest Litigation

(4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.

(6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

(7) The courts before entertaining the PIL (Public Interest Litigation) should ensure that the PIL (Public Interest Litigation) is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

(8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

[Source: State of Uttranchal v. Balwant Sigh Chaufal, AIR 2010 SC2550: 2010 (3) SCC 402 (Supreme Court of India)]