SC declines PIL to protect complainants of sexual harassment against retaliation at workplace: Is the law adequate?

The Supreme Court's dismissal of a public interest litigation to protect complainants and witnesses of sexual harassment for retaliation leaves a gap in the implementation of the Prevention of Sexual Harassment Act. With India's current laws insufficient to protect complainants and witnesses, ratifying international conventions becomes imperative to tackle this issue effectively.

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ON July 7, 2023, a division Bench of the Supreme Court comprising Chief Justice of India Dr D.Y. Chandrachud and Justice P.S. Narasimha delivered a judgment in the case of Sunita Thawani versus Union of India and Another.

The Bench refused to entertain a public interest litigation (PIL) filed in relation to the issuance of directions for protecting complainants, witnesses and other persons in cases of sexual harassment from potential retaliation or victimisation at the hands of the accused person or the concerned organisation.

The petitioner was required to show specific instances of harm arising out of such retaliation or victimisation afflicted by an accused person or by any organisation.

The Bench also remarked that passing a general Order without substantial evidence would lead to the creation of a new offence.

Although the Bench showed a disinclination towards entertaining the PIL, the petitioner has been given the liberty to explore alternative legal avenues.

The Supreme Court's decision comes after the dismissal of a similar petition filed earlier before a Bench comprising Justices R. Banumathi and A.S. Bopanna.

In February 2020, the Delhi High Court refused to create a new category of offence in the Prevention of Sexual Harassment Act, 2013 (PoSH Act), namely, the offence of retaliation and victimisation.

In its reasoning, the court stated, "Retaliation, or victimisation, is only the provocation for an act of assault. If an act of assault amounts to sexual harassment, it would anyway be punishable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. 

If it does not, it cannot be punishable under the said Act, as the Act deals with only offences of a sexual nature, and an offence which does not lead to sexual harassment, can obviously find no place therein."

Contextualising the issue

In 2018, Priya Ramani, a journalist, was accused of defaming M.J. Akbar, a former editor and Union minister, after she accused him of sexual misconduct.

Another case in point is when an additional district judge was subject to a sudden and illegal transfer in 2020, immediately after bringing a case of sexual harassment against the sitting high court judge of Madhya Pradesh.

Also read: Alarmed by rampant violations of Prevention of Sexual Harassment Act in sports, NHRC issues notice to 16 federations

In yet another instance, a female editor at a government publication house was discharged from her services during the pendency of a complaint of sexual harassment. The employer attributed the reason for her dismissal to her poor work performance.

Although Ramani was acquitted, the judge got her post back, and the editor was reinstated to her former position, these cases effectively capture the essence of retaliation faced by victims of sexual harassment.

Retaliation occurs when a person is treated unfairly or unfavourably for reporting a complaint of sexual harassment, participating in an investigation as a witness, or speaking out against an instance of sexual harassment.

It is essentially the practice of whistleblowing and calling out a person's wrongdoings.

A 2017 survey of the Indian National Bar Association and Netrika Consulting notes that 68.9 percent of the respondents refrained from filing complaints with the internal complaints committee (ICC) under the PoSH Act or even approaching their seniors, for fear of retaliation as a consequences of such reporting and sympathy for the perpetrator.

A 2022 report notes that eight out of ten complainants are subject to retaliation in some form or another.

Of the 205 reports received by Gapjil 119, a civic group campaigning against workplace harassment, 90 percent of the victims complained about the lack of protection, 83 percent of the victims experienced a form of retaliation, and 79 percent of the victims experienced bullying at the workplace.

Getting fired from the job, isolation or complete exclusion from company meetings, events, or gatherings, were not the only consequences to bear. Organisations also manifested their relation by transferring the complainant, withholding promotions or demoting them and reducing the amount of quality work allocated to them.

Instances like these compel the victims to quit their jobs and leave a permanent blot on their self-confidence, dignity and, most importantly, faith in the justice system.

According to another report, victims of sexual harassment experience traumatic symptoms for years at a stretch.

The Supreme Court demanded specific instances of harm arising out of such retaliation, but truth be told, there will never be any substantial proof of such damage or harm because it is mostly invisible.

Is the law adequate?

Before delving into the adequacy of the law, it is pertinent to refer to a 1999 judgment in Apparel Export Promotion Council versus A.K. Chopra, where the Supreme Court, which provides a well-encapsulated definition of sexual harassment. 

The court defined sexual harassment as "a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication".

The court clarified that this would be particularly true in cases where "submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her".

The judgment is laudable since it has been instrumental in broadening the scope of harassment, holding that 'physical contact' is not a prerequisite to establishing a case of sexual harassment.

Also read: Supreme Court's directions on enforcement of PoSH Act ring hollow for India's informal sector

As far as the PoSH Act is concerned, Section 2(n) (definition of sexual harassment) does not provide protection against retaliation or victimisation of complainants and witnesses of sexual harassment.

However, Section 3 (prevention of sexual harassment) goes one step beyond and adequately addresses the issue. The provision takes within its bounds a broader set of actions, occurring independently or in connection to an act or behaviour of sexual harassment. 

The instances that would constitute sexual harassment include the creation of an intimidating, offensive, or hostile work environment for the victim under Section 3(2)(iv); humiliation, which can potentially affect the health and safety of the victim under Section 3(2)(v); threats regarding poor treatment at work and current or future employment status under Section 3(2)(ii) and Section 3(2)(iii), respectively.

Section 3, if read conjunctively with Section 2(n), can potentially allow the aggrieved woman to bring a claim against retaliation or victimisation at the workplace.

Additionally, the Ministry of Women and Child Development's handbook on the PoSH Act deems "threats, intimidation or retaliation against an employee who speaks up about unwelcome behaviour with sexual overtones" as sexual harassment at the workplace.

Further, the handbook mentions that the PoSH Act places the onus of ensuring non-retaliation during the inquiry process upon the ICC of the concerned organisation. 

The handbook also takes recourse to the case of Vishaka and Ors versus State of Rajasthan and Ors (1997) and affixes the responsibility upon the employers to ensure that the complainant and the witnesses are protected against hostility, intimidation and victimisation.

Apart from the PoSH Act, the applicable service rules and the internal policies of various companies, too, deal with the issue of retaliation and victimisation in sexual harassment cases. 

Retaliation and victimisation of the complainants are usually seen as misconduct on the part of the employee, and accordingly, appropriate disciplinary actions are initiated against the accused.

Strengthening the law

Victims of sexual harassment value their safety and social support more than taking legal action against their perpetrators. The victims fear being disproved by the management or being victim-shamed by society.

To mitigate the stigma associated with reporting sexual harassment at the workplace, there is a need to strengthen the existing legislation and the related framework.

First, the PoSH Act fails to advance any definitive protection or safeguards against retaliation meted out to complainants, witnesses or other related persons.

A definitive protection could include an express bar on retaliation and victimisation by suggesting concrete measures to be undertaken in furtherance of protecting such persons. This was also suggested by the petitioner, Sunita Thawani.

Also read: Field notes of a PoSH trainer: Unravelling class differences

While a few provisions of the PoSH Act do provide cursory safety, they are inadequate in the given context.

For instance, one of the duties of the employer, as enumerated under Section 19 of the PoSH Act, requires them to ensure safety at the workplace. This includes being mindful of the kind of people who enter the workplace premises.

It is argued that the provision under Section 19 falls flat when ensuring safety against acts of retaliation.

Further, as per Section 12 of the PoSH Act, a victim of sexual harassment can request the ICC or local complaints committee (LCC) to recommend the employer to transfer or grant leave to the aggrieved woman for up to three months.

The above provision can be seen as a step in the right direction to ensure safety, but inversely, the transfer could by itself be an act of retaliation.

Second, India is yet to ratify the International Labour Organisation's Violence and Harassment Convention, 2019 and its accompanying Violence and Harassment Recommendation, 2019 which effectively and conclusively target the issue at hand.

One of the notable provisions of the 2019 convention that is contextually pertinent is Article 10 (enforcement and remedies) which calls upon the member States to ensure safeguards against retaliation, victimisation or undue consequences against complainants, victims, witnesses and whistle-blowers. 

Another striking feature under Article 2 of the above instrument is that it extends these protections to all workers, regardless of their contractual status of employment and covers the informal sector as well.

With over 190 countries in the world with insufficient legal safeguards against sexual harassment and discrimination in the workplace, this convention is indeed commendable, and India must ratify it at the earliest.

The system is already grappling with the concern of patchwork implementation of the PoSH Act, and it is argued that unless the system addresses these gaps, even full compliance with the PoSH Act would only be of little value.

While at it, the system should also give due regard to the safety of the members of ICCs and LCCs, which is of equal importance.