Prevention of Sexual Harassment: Recent Developments

Recently, the Calcutta High Court dealt with a case of sexual harassment as alleged against a teacher of Navodaya Vidyalaya Samiti by several female students. This is one of the recent cases in which the Supreme Court and different High Courts have clarified the scope of sexual harassment at the workplace laws. 

Almost 24 years ago, the Supreme Court issued guidelines to prevent sexual harassment of women in the famous Vishakha judgement. In 2013, the Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Yet, even now, , it is not clear how effective it has been to combat the evil of sexual harassment, especially for women in the informal sector. We discuss some recent important developments below. 

• In sexual harassment cases, courts should not apply service rules in a hypertechnical manner

In a recent case, which involved allegations of sexual harassment of a juniour colleague by a BSF constable, the Security Force Court (Internal Committee) of the BSF, had found the constable guilty of sexual harassment. The High Court, in appeal, invalidated the entire proceedings because it found that the original enquiry report had mentioned the wrong date of the occurrence of the event. Asking for an additional enquiry report was beyond the BSF Rules. 

In this context, the Supreme Court said that as it takes a lot of courage for a subordinate to file a complaint of sexual harassment against their superior, courts should not apply the organization’s service rules in a hyper-technical manner and invalidate sexual harassment proceedings. 

 The Supreme Court restored the punishment of the constable. It said that courts should interpret rules about sexual harassment at the workplace in a manner that provided substantive justice to the parties. 

• Confidentiality of sexual harassment proceedings does not mean that  perpetrators will not be held responsible

A few months ago, the Bombay High Court laid down guidelines on conducting hearings, passing orders, and reporting of sexual harassment cases. The High Court said that they would hear such cases either “in camera” (without the press or the general public) or in the judge’s chamber. Media can only report on such cases with the judge’s permission. They also stated that any violation of the guidelines would amount to contempt of court. An appeal challenging these guidelines is pending before the Supreme Court.

The intention behind these guidelines was to protect the identities of the survivors of sexual harassment. However, the restrictions on accessing the orders and judgements in a case of sexual harassment, and the blanket ban on any kind of reporting about the case end up benefitting the perpetrator more than the survivor of sexual harassment. Granting secrecy to the perpetrator even after the court case has finished and they have been found guilty (or allowing media to report on it only with the Court’s permission) prevents exposure of perpetrators. They can continue their pattern of abuse and harassment.

1. POSH Act applies to girl students of a school

In the most recent case,  the Calcutta High Court held that female students in a school are included in the definition of “aggrieved woman” as per Section 2(a) of the POSH Act. Complaints of such students related to sexual harassment should be heard by an Internal Complaints Committee set up by the school.

While schools and universities may not be the workplace of girl students, they are certainly the workplace of teachers. The POSH Act requires every organization, public or private, to set up an Internal Complaints Committee (ICC).So, once there is a sexual harassment complaint, it has to be dealt with by the ICC, irrespective of whether the “aggrieved woman” (in this case the student) is employed at the workplace or not. This broad interpretation of the application of the POSH Act creates more avenues for sexual harassment survivors to seek redressal.