ON the face of it, the Supreme Court appears to be extremely pro-active in ensuring that the in spirit implementation of the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘the Act’). Two judgments in 2023, Aureliano Fernandes vs State of Goa (2024) and Initiatives for Inclusion Foundation vs Union of India (2023) have given extensive directions for the implementation of the Act including mandatory setting up of and training of committees, display of information regarding committees on the employer’s website, preparation of Standard Operating Procedure to streamline its implementation and monitoring. This has resulted in the direction for mandatory registration of all employers on the She-Box portal.
Two other judgments bemoaned the “rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules”. However, they were silent on the damage done by the Supreme Court in Nisha Priya Bhatia v. Shashi Prabha (2020), where it held that the inquiry under Section 13 of the Act is only a “fact finding inquiry” and has to be followed by a departmental inquiry which “is strictly confined between the delinquent employee and the concerned department having due regard to confidentiality of the procedure.” It further noted that the “two inquiries cannot be mixed up with each other and similar procedural standards cannot be prescribed for both”. The judgment undid the impact of Medha Kotwal Lele (2004), where the top Court had stated that there was no requirement for a second departmental inquiry and the Internal Complaints Committee will be deemed to be the inquiry committee in sexual harassment cases. This was in keeping with the vision of Vishaka and the Act which sought to provide equal participation of the complainant as well as ensure an equitable gender sensitive body to investigate the complaint. This truncated the status of Internal Committees reducing them to toothless bodies and its repercussions are visible while other problematic issues with the law such as the Damocles sword of “false and malicious cases”, non-identification of sexual predators due to confidentiality clause and limitation for complaints continue to remain unresolved*. Rhetoric aside, courts have struck down proceedings of the Internal Committees for non-compliance with the Act including for not furnishing documents or permitting cross examination. The plethora of contradictory judgments has mired the law in legalese which most Committees are unable to navigate through, giving rise to a cottage industry of professional lawyers replacing women’s rights groups as ‘experts’ to help unravel the legal conundrum.
