Sexual Harassment

Judicial Pronouncements in Sexual Harassment Cases

The issue of Sexual Harassment at the work place is fraught with such complexities and intersections with cultural practices that make a linear, simple and straight -forward understanding of the same a tardy and tedious, if not impossible, affair to grapple with. One of the ways to simplify and to make it understandable in a better manner is the recapitulation of the trends in the history of precedents by various courts.

Moreover, the majority of the women are either unaware or ignorant about their rights provided to them by the law of the land. Even if, they are made aware or well versed with the whole scenario, a very few have economic resources and courage to obtain legal redress. No one can ignore the significant role being played by the judiciary in this direction helping her to get what is due to her as a matter of right.

The studies of precedents gain additional importance as even with the existing flawed system and glaring shortcomings there have been few bold and courageous victims who took on to their tormentors, fought long drawn legal battles on their own or in certain cases, took the help of women’s organizations to exert pressure on the harassers, defying all odds, crossing all barriers successfully and setting examples for others at the same time. The strenuous attitude of the apex court in such matters has established, time and again, that no one is above the law and that no matter how highly placed the perpetrator may be, the long arm of the law will reach and sentence the offender impartially.

It’s a great achievement of not only one of the pillars of democracy but the democracy itself that the principle of equality between the sexes enshrined in our constitution is being reinforced and safeguarded through the sound judicial process.

After that in several other pronouncements, the judiciary has shown its innate desire to help this deprived and underprivileged section of the society facing the brunt of this form of sexual violence in silence while giving a whole new dimension to the justice itself3.

Fight Against Odds: Rupan Deol Bajaj

Prior to Vishaka,4 there have been quite a few remarkable judgments that not only brought to fore the existence of this systematic and planned discrimination in our society but also exposed glaring loopholes in making safe workplaces available to increasing force of working women.

A senior IAS officer, Roopan Deol Bajaj took on to then Director General of Police of Punjab when she was sexually harassed in a party in full view of her associates. Many of them brushed aside her humiliation by a drunken Gill as a ‘trivial’ incident. The entire political and bureaucratic establishment threw its weight to protect the police chief and awarded him the ‘Padma Shri’ when the matter was sub-judice. The said establishment, at the same time, tried to intimidate Bajaj by spreading slander against her and isolating her for daring to protest. In the words of Bajaj:

“When your prescription is different from all others because ailments with which you are suffering have unique features, when you do not have a set of rules or standards or established norms or tradition to follow or any legislation or precedent to bank upon, you have to muster courage to fight against all odds and create your own way out of the complex and peculiar situation”.

Raising the voice against a national hero was not very easy, though emotional, for that quite a senior officer, then Commissioner-cum-Secretary. “The decision to complain was really tough- there were consequences of complaining and not complaining. If I hadn’t complained it would have appeared that I was a willing participant. The people above him left no stone unturned to protect Gill. And he would have continued doing this to other women. I had to put a stop to this. Why should I cry about my humiliation in private? I just had to fight for my dignity. Because of this, there were times when even my life was threatened. Yet, I remained determined. 18 years is not a short period. It is a lifetime”.

After being dragged on for more than 18 years, finally, the Supreme Court upheld the conviction of Gill for his offence. He was found guilty under sections 354 and 509 of IPC and the court directed him to pay Bajaj Rupees two Lakh as compensation. This was the first instance where judiciary actually took a stand upholding women’s right. The stand of the judiciary is also commendable because the verdict came despite the general public opinion that she was ‘blowing it out of proportion’ and attempts by all the top officials in the state were being made to suppress the case. While many perceived her assertiveness as degrading, aggressive, and abnormal, male sexuality as Gill’s was brushed aside as display of assertive behaviour establishing the discriminatory theory.

There has been no looking back by the judiciary since then, keeping pace with the changed work culture, marching progressively, step by step, in its quest to provide a safe and protective environment to the women of the society.

Operation Scuttle: Shehnaz Mudbhalkal (Sani)

Shehnaz Mudbhalkal became the first employee to win a legal battle in a labour court against her employers on the grounds of Sexual Harassment. The employers, Saudi Arabian Airlines (SAA) appealed against the verdict but lost. This judgement aptly illustrates that how a typical case of Sexual Harassment may include both ‘quidpro quo’ and ‘hostile work environment’ elements.

Sani was a secretary to the station manager of the Airline. The manager made a series of abortive attempts at getting her to have dinner with him and inviting her to his house at midnight “to discuss her promotion”, thereby, bidding to transgress the limits of healthy working relationship with the employer. Initially, she declined politely but gradually all limits and boundaries were crossed by the perpetrator. She protested vigorously against offensive and unwelcome personal remarks and lodged a complaint against him. What followed was a systematic victimization of Sani as the manager’s macho was offended.

She was demoted and eventually dismissed with a letter alleging willful negligence in 1985 for not obeying the company’s request for not making a big issue of his conduct, as even the reputation, as well as the prestige of the company, was at stake. Sani was not one to give up.

She challenged the termination order on the ground that it was served since she had refused the advances of her boss. In 1997, the labour court directed that she be reinstated with full back wages and continuity of service and the Mumbai High Court upheld the directions.  On February 5, 1999, Justice B. N. Srikrishna Commented on the actions of SAA as ‘operation scuttle’ and observed, “The conduct (of the boss) would squarely fit in with the concept of Sexual Harassment as defined by the  Supreme Court.”  Legal  and  women  activists hailed the court’s verdict, noting that this was the first time a high court had applied the Supreme Court Guidelines. “The judgement is significant”, pointed out legal activist Flavia Agnes. “Most women don’t come forward because they feel that nothing will happen. This  may inspire more women to take a stand when they are being forced to compromise.”

But her tryst with the destiny did not end here. On joining SAA on February 24, 1999, Sani was immediately transferred to Chennai. She then filed for an injunction on the transfer in a suit, where she claimed damages of around Rupees one crore for the Sexual Harassment and emotional pain and suffering caused to her.

It was in response to this suit, that on April 8, 1999, Justice A P Shah of the Mumbai High Court restrained the company from transferring her and directed that she be allowed to “resume her duties at the Sahara International Airport” with her salary and all other dues. She could not resume duties as by then, she had suffered severe mental depression due to continuous stress, anxiety and insecurity. Even after being declared medically fit by the renowned psychiatrist Dr. Ashit Seth, she was not taken back by the company in what her advocates termed to be a “continuous sexual harassment” meted out to her. She had also not been paid since April 1999. Justice R.J. Kochar held that the company’s actions were of malafide intent and directed that Sani is reinstated on January 3, 2000, with full salaries and back wages.

Her case was further complicated by the fact that her then-husband, also an employee with SAA was threatened with retrenchment if she took an aggressive stand against the airline. Her decision, not to put an end this legal battle, led to an estrangement with her husband which was nothing less than a live nightmare.

She said after she emerged victoriously, “working women have to deal with sexual innuendoes and pass all the time. We take it in our stride. It’s only when one is pushed beyond excusable limits that we knock at the court’s door. After that, you have to stick it out, even if there are times you want to scream with frustration.”

Speaking legally, she won but lost on the personal front due to the apathy of the system towards such matters.

The Multiplier Effect: Sutapa Roy

Sutapa Roy, an employee at Seagull Bookstores Pvt. Ltd started getting sexual advances from Managing Director (MD) Seagull Bookstores since January 1998. The sexual harassment continued till December 1999. In the words of Ms. Roy, “First I tried to ignore the sexual harassment. It was so difficult to reveal all that he had done, I felt like dying of shame, but then there was no other option but to complain”. Sutapa informed a senior management executive but was afraid to make a written complaint against the MD for fearing adverse job consequences.

The complaints of sexual harassment involved kissing and verbal overtures by the superior while traveling together in a taxi and proposals to spend the night together in a hotel. Despite her complaints, the alleged perpetrator continued to be her boss making obscene gestures and raising demands for sexual services frequently on all possible occasions.

Soon after Ms. Roy’s complaints of the above incidents the management accused her of “incompetence”. She was asked to resign or as an alternative accept the termination of services. She, naturally, opted for the former. She was made to sign a resignation letter typed in advance. The letter of acceptance issued by the company bore the signature of the MD despite his absence from that meeting. Two months after this episode, Seagull Bookstores constituted a complaint committee to look into the charges of Sexual Harassment leveled against the accused. The committee, comprising three employees of Seagull Bookstores and two external advisors, resigned after a couple of months, as it could not function autonomously. A second complaint committee chaired by Mahashweta Devi, the noted author and activist, was constituted some time in April and its report was released on July 31,2000, which went against the complainant. Unable to fight alone, she sought the intervention of certain women organizations  to  create  pressure  upon  the  complainant. It took nearly a year-long intensive campaign by Maitree, a network of women’s organizations in the city, to get redress for her. Regular dharnas and demonstrations were organized by Maitree in front of various branches of Seagull Bookstores in an effort to create public  awareness on the issue. Public opinion was also mobilized through  continuous distribution of leaflets. The case created waves and was  even discussed at the Human Rights Conference held in December 2000, at Panchgani. The death blow was a countrywide e-mail campaign so as to reach out to various human rights groups and activists to which Seagull Bookstores reacted strongly and demanded its immediate withdrawal. In the meantime, representatives of Maitree (on behalf of Sutapa) and Seagull management were discussing so as to arrive at some amicable settlement but in January 2001, it reached a stalemate. Various activist groups in the city joined hands with Maitree and as a part of the strategy decided to arrange for a weeklong dharna in front of the Seagull Bookstores stall at the Calcutta Book Fair, 2001.

It was, at this juncture, that the Seagull management relented and offered redress. Seagull not only paid monetary compensation but also issued a letter of apology. She said, narrating her emotional journey,

“the apology letter from Seagull is the first recognition of my dignity as a human being and the same would not have been possible without the support of the women’s movement.”

Moving the Immovables: Nalini and Prakriti

Nalini Netto, a senior IAS officer in Kerala was assaulted by the then Minister for Transport, Neelalohitadasan Nadar in his office in the Legislative Assembly premises in the course of an official meeting on December 21, 1999. She extricated herself and informed her husband, also an IAS officer and some colleagues. But she did not lodge a formal complaint as she felt that such an action may tarnish the image of the Government as a whole. Her colleagues were unanimous in advising her on the similar lines of maintaining silence.

When, after more than a month, the stress and mental agony became virtually unbearable, she sought the intervention of the Chief Minister. However, she did not request for the prosecution of the Minister but simply asked for a different working environment and that some action might be taken to protect the modesty of woman officers.

Immediately after Netto s case came to light, Prakriti Srivastava, the Divisional Forest Officer, Nilambur, Kerala lodged a complaint on 11 April 2001, alleging Sexual Harassment by the same Minister in February 1998. Instead of lodging a formal complaint, she simply reported the incident to the city police commissioner, a woman herself, and the chairperson of the Women’s Commission. She felt too insecure to file a written complaint as she was not well versed with the social ethos of the state. Moreover, she got to know of the ignominy suffered by few other women in certain previous instances of Sexual Harassment through media reports.

In the course of the investigations, Srivastva was summoned to depose before the Additional Director General of Police. After her disposition, however, she started receiving constant threats of grave nature from that Minister which ultimately became unbearable and intolerable. She was left with no option but to file a written complaint only under section 354IPC demanding legal remedy for the offence of Sexual Harassment so committed.

The Government appointed Justice Sashidharan Committee without having any legitimacy as the police enquiry was already going on and it amounted to a parallel enquiry in the same matter. All norms were violated grossly while constituting the Committee as a sitting male judge, Justice Sashidharan, was appointed as its chairman.

Showcase of Apathy of The System

These cases, not only, reflect the insensitivity and apathy of the society towards such incidents; they also become a showcase of the gravity of humiliations and insults borne by the victim in order to convince the a society without at being at fault on her own.

The cases of Rupan Bajaj, Nalini Netto and Prakriti Srivastva are particularly significant because they become the showcase of the vivid facts and factors involved including their class location i.e. an ‘enlightened’ upper middle class, the bureaucracy and general apathy of the system towards such incidents. These cases also highlight that the boundaries of class locations, in such instances, have suddenly become fluid. There is no more a distinction between the hallowed environs of a high-level official party, a ministerial meeting, the corridors of Legislative Assembly and a daily journey in public transport. There is also an obliteration of the distinction between a ‘Super Cop’, a Minister and the “pathological bottom pinchers,” “riff-raff’, “sexual pervert”, the nameless and faceless man on the street.

Judicial Pronouncements in Sexual Harassment Cases
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