Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL/APPELLATE JURISDICTION

WRIT PETITION (CRIMINAL) NOS. 173-177 OF 1999

Medha Kotwal Lele and Others …… Petitioners

Vs.

Union of India and Others ……Respondents

WITH

T.C. (C) NO. 21 OF 2001

CIVIL APPEAL NO. 5009 OF 2006

CIVIL APPEAL NO. 5010 OF 2006

JUDGMENT

R.M. LODHA, J .

The Vishaka

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judgment came on 13.8.1997. Yet,15 years

after the guidelines were laid down by this Court for the prevention and

redressal of sexual harassment and their due compliance under Article 141

of the Constitution of India until such time appropriate legislation was

enacted by the Parliament, many women still struggle to have their most

basic rights protected at workplaces. The statutory law is not in place. The

Protection of Women Against Sexual Harassment at Work Place Bill, 2010

is still pending in Parliament though Lok Sabha is said to have passed that

Bill in the first week of September, 2012. The belief of the Constitution

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Vishaka and Others v. State of Rajasthan and Others; [(1997) 6 SCC 241]

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Page 2 framers in fairness and justice for women is yet to be fully achieved at the

workplaces in the country.

2. This group of four matters – in the nature of public interest

litigation – raises principally the grievance that women continue to be

victims of sexual harassment at workplaces. The guidelines in Vishaka

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are

followed in breach in substance and spirit by state functionaries and all

other concerned. The women workers are subjected to harassment

through legal and extra legal methods and they are made to suffer insult

and indignity.

3. Beijing Declaration and Platform for Action, inter alia, states,

“Violence against women both violates and impairs or nullifies the

enjoyment by women of human rights and fundamental freedoms……. In

all societies, to a greater or lesser degree, women and girls are subjected

to physical, sexual and psychological abuse that cuts across lines of

income, class and culture”.

4. Vishaka

guidelines require the employers at workplaces as

well as other responsible persons or institutions to observe them and

ensure the prevention of sexual harassment to women. These guidelines

read as under :

“1. Duty of the employer or other responsible persons in

workplaces and other institutions:

It shall be the duty of the employer or other responsible

persons in workplaces 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.

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Page 3 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 be visited if the victim does

not consent to the conduct in question or raises any

objection thereto.

3. Preventive steps:

All employers or persons in charge of workplace 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 workplace 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 workplaces and no woman employee should have

reasonable grounds to believe that she is disadvantaged in

connection with her employment.

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Page 4 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 constitutes 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, a Complaints

Committee, a special counsellor or other support service,

including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman

and not less than half of its members 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 report 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 of sexual

harassment at workers' meeting and in other appropriate

forum and it should be affirmatively discussed in employer-

employee meetings.

9. Awareness:

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Page 5 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.”

5. In these matters while highlighting few individual cases of

sexual harassment at the workplaces, the main focus is on the lack of

effective implementation of Vishaka guidelines. It is stated that the attitude

of neglect in establishing effective and comprehensive mechanism in letter

and spirit of the Vishaka

guidelines by the States as well as the employers

in private and public sector has defeated the very objective and purpose of

the guidelines.

6. In one of these matters, Medha Kotwal Lele, this Court has

passed certain orders from time to time. Notices were issued to all the

State Governments. The States have filed their responses. On 26.4.2004,

after hearing the learned Attorney General and learned counsel for the

States, this Court directed as follows :

“Complaints Committee as envisaged by the Supreme Court

in its judgment in Vishaka’s

case will be deemed to be an

inquiry authority for the purposes of Central Civil Services

(Conduct) Rules, 1964 (hereinafter called CCS Rules) and

the report of the complaints Committee shall be deemed to

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Page 6 be an inquiry report under the CCS Rules. Thereafter the

disciplinary authority will act on the report in accordance

with the rules.”

This Court further directed in the order dated 26.4.2004 that similar

amendment shall be carried out in the Industrial Employment (Standing

Orders) Rules. As regards educational institutions and other

establishments, the Court observed that further directions would be issued

subsequently.

7. On 17.1.2006, this Court in couple of these matters passed the

following order:

“These matters relate to the complaints of sexual

harassment in working places. In Vishaka vs. State of

Rajasthan, (1997) 6SCC 241, this Court issued certain

directions as to how to deal with the problem. All the States

were parties to that proceedings. Now, it appears that the

directions issued in Vishaka case were not properly

implemented by the various States/Departments/Institutions.

In a rejoinder affidavit filed on behalf of the petitioners, the

details have been furnished. The counsel appearing for the

States submit that they would do the needful at the earliest.

It is not known whether the Committees as suggested in

Vishaka case have been constituted in all the

Departments/Institutions having members of the staff 50 and

above and in most of the District level offices in all the

States members of the staff working in some offices would

be more than 50. It is not known whether the Committees as

envisaged in the Vishaka case have been constituted in all

these offices. The number of complaints received and the

steps taken in these complaints are also not available. We

find it necessary to give some more directions in this regard.

We find that in order to co-ordinate the steps taken in this

regard, there should be a State level officer, i.e., either the

Secretary of the Woman and Child Welfare Department or

any other suitable officer who is in charge and concerned

with the welfare of women and children in each State. The

Chief Secretaries of each State shall see that an officer is

appointed as a nodal agent to collect the details and to give

suitable directions whenever necessary.

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Page 7 As regards factories, shops and commercial establishments

are concerned, the directions are not fully complied with.

The Labour Commissioner of each State shall take steps in

that direction. They shall work as nodal agency as regards

shops, factories, shops and commercial establishments are

concerned. They shall also collect the details regarding the

complaints and also see that the required Committee is

established in such institutions.

Counsel appearing for each State shall furnish the details

as to what steps have been taken in pursuance of this

direction within a period of eight weeks. Details may be

furnished as shown in the format furnished by the petitioners

in the paperbooks. A copy of this format shall form part of

the order. The above facts are required at the next date of

hearing. A copy of this order be sent to the Chief Secretary

and Chief Labour Commissioner of each State for taking

suitable action.”

8. From the affidavits filed by the State Governments the

following position emerges in respect of each of these States:

GOA

The amendments in the Civil Services Conduct Rules and the

Standing Orders have not been made so far.

GUJARAT

No amendments in the Civil Services Conduct Rules and the

Standing Orders have been made so far. It is not stated that all Complaints

Committees are headed by women. There is no information given whether

in such committees NGO members have been associated.

NCT OF DELHI

The amendments in the Civil Services Conduct Rules have been

made. The position about amendments in the Standing Orders has not

been clarified. It has not been specified that all Complaints Committees

are headed by women.

HIMACHAL PRADESH

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Page 8 There is nothing to indicate that the State of Himachal Pradesh has

made amendments in the Civil Services Conduct Rules and the Standing

Orders. No details of formation of Complaints Committees have been

given.

HARYANA

The amendments in the Government Employees (Conduct) Rules,

1966 have been made. However, it is not specified that the amendments

in Standing Orders have been made.

MAHARASHTRA

Necessary amendments in Maharashtra Civil Services (Conduct)

Rules, 1974 have been made. The Labour Commissioner has taken steps

for amending Mumbai Industrial Employment (Permanent Orders) Rules,

1959.

MIZORAM

The State of Mizoram has amended Civil Services Conduct Rules

and also constituted Central Complaints Committee to look into complaints

pertaining to cases of sexual harassment of working women at all

workplaces for preservation and enforcement. A notification has been

issued giving necessary directions to all private bodies.

SIKKIM

The amendments in the Civil Services Conduct Rules have been

carried out and a notification has been issued for constitution of complaints

committees by departments/institutions with 50 or above staff to look into

sexual harassment of women at workplaces.

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Page 9 UTTARANCHAL

The State of Uttaranchal has carried out amendments in Civil

Services Conduct Rules as well as the Standing Orders. The District Level

and State Level Complaints Committees have been constituted.

WEST BENGAL

The amendments in the Rules relating to duties, rights and

obligations of government employees have been made. The amendments

in the Standing Orders have been carried out. Out of 56 departments of

Government of West Bengal, Complaints Committees have been formed in

48 departments and out of 156 Directorates under the Government,

Complaints Committees have been formed in 34 Directorates. Of 24

institutions under the Government, Complaints Committees have been

formed in 6.

MADHYA PRADESH

Although State of Madhya Pradesh has made amendments in the

Civil Services Conduct Rules but no amendments have been made in the

Standing Orders. The Complaints Committees have been constituted in

every office of every department right from the Head of the Department

level to the District and Taluka level. The District Level Committees have

been constituted under the chairmanship of the District Collector. The steps

taken by the District Committees are monitored by the nodal departments.

PUNJAB

The State of Punjab has carried out amendments in the Civil

Services Conduct Rules as well as the Standing Orders. 70 Complaints

Committees have been constituted at the headquarters of different

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Page 10 Directorates and 58 Complaints Committees have been constituted in

various Field Offices.

ORISSA

No amendments in the Civil Services Conduct Rules and the

Standing Orders have been made.

ANDHRA PRADESH

Amendments in the Civil Services Conduct Rules and in the

Standing Orders have been made.

KARNATAKA

The amendments in the Civil Services Conduct Rules have been

made by the State of Karnataka but no amendments have been made in

the Standing Orders. It is stated that in most of the committees, the number

of women members is above 50%. The Chairpersons are women and in

most of the committees, an outside member, i.e., an NGO has been

associated.

RAJASTHAN

The State of Rajasthan has carried out amendments in the Civil

Services Conduct Rules but no amendments have been carried out in the

Standing Orders.

BIHAR

The State of Bihar has made amendments in the Civil Services

Conduct Rules but there is nothing to show that amendments in Standing

Orders have been made. However, only one Complaints Committee has

been constituted for the entire State.

MEGHALAYA

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Page 11 The State of Meghalaya has neither carried out amendments in the

Civil Services Conduct Rules nor in the Standing Orders.

TRIPURA

The State of Tripura has carried out the amendments in the Civil

Services Conduct Rules. There are no Standing Orders applicable in the

State. 97 Complaints Committees have been constituted in most of the

state government departments and organisations.

ASSAM

Amendments in the Civil Services Conduct Rules have been made

but no amendments have been carried out in the Standing Orders.

MANIPUR

The State of Manipur has carried out amendments in the Civil

Services Conduct Rules, but no definite information has been given

regarding amendments in the Standing Orders. Only one Complaints

Committee has been formed for the entire State.

UTTAR PRADESH

Amendments both in the Civil Services Conduct Rules and the

Standing Orders have been carried out.

JAMMU AND KASHMIR

The State of Jammu and Kashmir has carried out amendments in the

Civil Services Conduct Rules. It is stated that steps are being taken for

amendments in the Standing Orders.

NAGALAND

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Page 12 The amendments have been carried out in the Civil Services

Conduct Rules by the State of Nagaland but no amendments have been

carried out in the Standing Orders.

ARUNACHAL PRADESH

The State of Arunachal Pradesh has neither carried out amendments

in the Civil Services Conduct Rules nor in the Standing Orders. There is

only one State Level Committee for the entire State of Arunachal Pradesh.

KERALA

Amendments in the Civil Services Conduct Rules and in the

Standing Orders have been carried out. There are 52 Complaints

Committees in the State. All such committees are headed by women and

50% members of these committees are women and there is representation

of NGO members in these committees.

TAMILNADU

The State of Tamil Nadu has carried out amendments in the Civil

Services Conduct Rules. However, no amendments in the Standing Orders

have been made so far.

JHARKHAND

The State of Jharkhand has carried out amendments in the Civil

Services Conduct Rules. However, no amendments in the Standing Orders

have been made so far.

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Page 13 9. From the affidavits filed by the State Governments, it

transpires that the States of Orissa, Meghalaya, Himachal Pradesh, Goa,

Arunachal Pradesh and West Bengal have amended the Rules relating to

duties, public rights and obligations of the government employees but have

not made amendments in Civil Services Conduct Rules. Similarly, the

States of Sikkim, Madhya Pradesh, Gujarat, Mizoram, Orissa, Bihar,

Jammu & Kashmir, Manipur, Karnataka, Rajasthan, Meghalaya, Haryana,

Himachal Pradesh, Assam, NCT of Delhi, Goa, Nagaland, Arunachal

Pradesh, Jharkhand and Tamil Nadu have not carried out amendments in

the Standing Orders. These States appear to have not implemented the

order passed by this Court on 26.4.2004 quoted above. The States which

have carried out amendments in the Civil Services Conduct Rules and the

Standing Orders have not provided that the report of the Complaints

Committee shall be treated as a report in the disciplinary proceedings by

an Inquiry Officer. What has been provided by these States is that the

inquiry, findings and recommendations of the Complaints Committee shall

be treated as a mere preliminary investigation leading to a disciplinary

action against the delinquent.

10. The States like Rajasthan, Meghalaya, Himachal Pradesh,

Assam and Jammu and Kashmir seem to have not formed Complaints

Committees as envisaged in the Vishaka guidelines. Some States have

constituted only one Complaints Committee for the entire State.

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Page 14 11. The Union Territories of Andaman and Nicobar Islands,

Daman and Diu, Lakshadweep, Dadra and Nagar Haveli and Puducherry

have not made amendments in the Standing Orders. The Union Territory of

Chandigarh does not seem to have carried out amendments in the Civil

Services Conduct Rules. Some of the Union Territories like Dadra and

Nagar Haveli and Chandigarh are reported to have not yet formed

Complaints Committees. Daman and Diu have formed one Complaints

Committee for the Union Territory.

12. While we have marched forward substantially in bringing

gender parity in local self-governments but the representation of women in

Parliament and the Legislative Assemblies is dismal as the women

represent only 10-11 per cent of the total seats. India ranks 129 out of 147

countries in United Nations Gender Equality Index. This is lower than all

South-Asian Countries except Afghanistan. Our Constitution framers

believed in fairness and justice for women. They provided in the

Constitution the States’ commitment of gender parity and gender equality

and guarantee against sexual harassment to women.

13. The implementation of the guidelines in Vishaka

has to be not

only in form but substance and spirit so as to make available safe and

secure environment to women at the workplace in every aspect and

thereby enabling the working women to work with dignity, decency and due

respect. There is still no proper mechanism in place to address the

complaints of sexual harassment of the women lawyers in Bar

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Page 15 Associations, lady doctors and nurses in the medical clinics and nursing

homes, women architects working in the offices of the engineers and

architects and so on and so forth.

14. In Seema Lepcha

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this Court gave the following directions:

“(i)The State Government shall give comprehensive

publicity to the notifications and orders issued by it in

compliance of the guidelines framed by this Court in

Vishaka’s case and the directions given in Medha Kotwal’s

case by getting the same published in the newspapers

having maximum circulation in the State after every two

months.

(ii)Wide publicity be given every month on Doordarshan

Station, Sikkim about various steps taken by the State

Government for implementation of the guidelines framed in

Vishaka’s case and the directions given in Medha Kotwal’s

case.

(iii)Social Welfare Department and the Legal Service

Authority of the State of Sikkim shall also give wide publicity

to the notifications and orders issued by the State

Government not only for the Government departments of the

State and its agencies/instrumentalities but also for the

private companies.”

15. As a largest democracy in the world, we have to combat

violence against women. We are of the considered view that the existing

laws, if necessary, be revised and appropriate new laws be enacted by

Parliament and the State Legislatures to protect women from any form of

indecency, indignity and disrespect at all places (in their homes as well as

outside), prevent all forms of violence – domestic violence, sexual assault,

sexual harassment at the workplace, etc; — and provide new initiatives for

education and advancement of women and girls in all spheres of life. After

all they have limitless potential. Lip service, hollow statements and inert

2

Seema Lepcha v. State of Sikkim & Ors. [Petition for Special Leave to Appeal (Civil) No. 34153/2010 decided on 3.2.2012]

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Page 16 and inadequate laws with sloppy enforcement are not enough for true and

genuine upliftment of our half most precious population – the women.

16. In what we have discussed above, we are of the considered

view that guidelines in Vishaka should not remain symbolic and the

following further directions are necessary until legislative enactment on the

subject is in place.

(i)The States and Union Territories which have not yet carried

out adequate and appropriate amendments in their respective Civil

Services Conduct Rules (By whatever name these Rules are called) shall

do so within two months from today by providing that the report of the

Complaints Committee shall be deemed to be an inquiry report in a

disciplinary action under such Civil Services Conduct Rules. In other

words, the disciplinary authority shall treat the report/findings etc. of the

Complaints Committee as the findings in a disciplinary inquiry against the

delinquent employee and shall act on such report accordingly. The

findings and the report of the Complaints Committee shall not be treated as

a mere preliminary investigation or inquiry leading to a disciplinary action

but shall be treated as a finding/report in an inquiry into the misconduct of

the delinquent.

(ii)The States and Union Territories which have not carried out

amendments in the Industrial Employment (Standing Orders) Rules shall

now carry out amendments on the same lines, as noted above in clause (i)

within two months.

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Page 17 (iii)The States and Union Territories shall form adequate number

of Complaints Committees so as to ensure that they function at taluka

level, district level and state level. Those States and/or Union Territories

which have formed only one Committee for the entire State shall now form

adequate number of Complaints Committees within two months from today.

Each of such Complaints Committees shall be headed by a woman and as

far as possible in such Committees an independent member shall be

associated.

(iv)The State functionaries and private and public sector

undertakings/organisations/bodies/institutions etc. shall put in place

sufficient mechanism to ensure full implementation of the Vishaka

guidelines and further provide that if the alleged harasser is found guilty,

the complainant – victim is not forced to work with/under such harasser and

where appropriate and possible the alleged harasser should be transferred.

Further provision should be made that harassment and intimidation of

witnesses and the complainants shall be met with severe disciplinary

action.

(v)The Bar Council of India shall ensure that all bar associations

in the country and persons registered with the State Bar Councils follow the

Vishaka

guidelines. Similarly, Medical Council of India, Council of

Architecture, Institute of Chartered Accountants, Institute of Company

Secretaries and other statutory Institutes shall ensure that the

organisations, bodies, associations, institutions and persons

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Page 18 registered/affiliated with them follow the guidelines laid down by Vishaka.

To achieve this, necessary instructions/circulars shall be issued by all the

statutory bodies such as Bar Council of India, Medical Council of India,

Council of Architecture, Institute of Company Secretaries within two months

from today. On receipt of any complaint of sexual harassment at any of the

places referred to above the same shall be dealt with by the statutory

bodies in accordance with the Vishaka

guidelines and the guidelines in the

present order.

17. We are of the view that if there is any non-compliance or non-

adherence to the Vishaka

guidelines, orders of this Court following

Vishaka

and the above directions, it will be open to the aggrieved persons

to approach the respective High Courts. The High Court of such State

would be in a better position to effectively consider the grievances raised in

that regard.

18. Writ petitions (including T.C.) and appeals are disposed of as

above with no orders as to costs.

…………………….. J.

(R.M. Lodha)

………………………J.

(Anil R. Dave)

…………………….. J.

(Ranjan Gogoi)

NEW DELHI.

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Page 19 OCTOBER 19, 2012.

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