RECENT CASE ON SEXUAL HARASSMENT

The Tarun Tejpal’s Case (2013)

Facts of the case:

 A team of four from the Goa Police has reached Delhi and will question Tejpal over the
sexual assault charges levelled against him. The Goa Police will also interrogate
Managing Editor and current Editor-in-Chief of Tehelka, Shoma Chaudhury.

 The Goa Police filed an FIR, citing an email sent by Tejpal to the victim on 19
November.

 Tejpal does not admit of an assault in the email but refers to a forced 'sexual liaison',
reported NDTV, "shameful lapse of judgement that led me to attempt a sexual liaison
with you on two occasions on 7 November and 8 November 2013, despite your clear
reluctance that you did not want such attention from me."

 The Goa Police is yet to confirm whether the Tehelka founder will be arrested in the rape
case. "I am not going to comment on that," OP Mishra, Deputy Inspector general of
police (Panaji) told ANI, when asked whether the team sent to Delhi will detain Tejpal.

 Meanwhile, the journalist, who claims to have been sexually assaulted by Tejpal, has
given her consent to co-operate during the investigation. "I would request you to be very
sensitive and careful about the identity of the victim," Mishra, DIG (Panaji), said.

 Earlier, a close confidante had told Delhi Durbar.in that along with SMSs threatening the
victim, CCTV footage in the five-star hotel where the incident took place, could be used
as evidence against Tejpal. Acting upon it, the Goa Police recovered the footage from the
venue, except from the elevator where the assault took place, reported PTI.
 In a television interview, Shoma had refused to assist the Goa Police until an FIR is
lodged. And on Saturday, Shoma agreed saying, "I am going to meet the police. I have
also sent information to the police yesterday itself." Mishra said that the authorities had
sent her an email, giving details about the complaint by the victim.

 Regarding the whole controversy, Tejpal emailed his response to The Indian Express."It
is a totally mendacious account of what happened, in its details, in its tonalities, in its
very suggestion of non-consensus." He added that his family, friends and most of the
colleagues knew the details of the incident and stood by him.

 The Goa government and police have taken the right step in filing a First Information
Report (FIR) against Tarun Tejpal, Editor-in-chief of Tehelka magazine, for sexual
assault on a woman colleague while she was fulfilling work-related responsibilities.
Sexual offences are cognisable crimes and the state is duty bound to take action if the
information of such a crime is in the public domain. Tehelka has often advocated the
rights of women and other sections of the marginalised and therefore its admirers are
shocked and angered at the ethical and moral collapse of the organisation as soon as it
was called upon to use the same standards for itself as it had rightly demanded of others.

 The young woman journalist in the Tehelka case showed exemplary courage in reporting
the crime to the second-in-command, the Managing Editor, Shoma Chaudhury. But she
was let down again by those she had trusted. Ms Chaudhury, who received her complaint,
chose to accept the farce of an apology offered by Mr. Tejpal, chose to whitewash his
crime, chose to accept his self-serving, self-decided, self-imposed punishment of a six-
month sabbatical. She further defended her decision by the outrageous statement that “it
was more than what was asked for” — after all, he didn’t just apologise, but look, there’s
atonement too, six whole months of not being the Chief Boss. If other rapists locked up in
the jails of India had been beneficiaries of such an approach, they would all be lining up
at the doors of their victims, offering their apologies, promising months of atonement. It
is easier after all to atone in the circle of loving friends and families than to face the law
and the consequences of your crime.
THE CRIME IS RAPE
And make no mistake, going by the victim’s complaint under the amended Indian Penal
Code’s definition of rape in Section 375B read with Explanation 1, the crime committed was
rape, which if proved, gets the accused a jail sentence of a minimum of seven years. Further,
under the amended law, under Section 376(2)(f) of the IPC where the offence of rape is
committed by a “relative, guardian, teacher, or a person in a position of trust or authority”
and also under Section 376(2)(k) where “anyone being in a position of control and dominance
over a woman commits rape on the woman” the offence is considered an aggravated form of
rape and the punishment is enhanced to a minimum of ten years. The Tehelka case would
invite these provisions.

The gravity of the offence was sought to be concealed by Tehelka in another way too, and
regretfully some women activists and women lawyers, in their misplaced arguments on
several television channels, became party to this exercise in deception. It was put out that the
complainant herself would prefer that the case be referred to an in-house committee
mandated by the law against sexual harassment at the workplace. Actually the Act is in limbo
as the Central government has failed to draft the Rules. Since Tehelka did not have such a
committee, it set one up within a day. This was then showcased as a serious effort
by Tehelka to address the grievance of the young journalist.

AMBIT OF THE 2013 ACT

This law, known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013 is based on the Vishaka judgment of the Supreme Court of India. It
was meant to serve the purpose of getting quick justice to women employees without the
lengthy procedures of a court case — in cases of sexual harassment of a lesser degree, which
come under the anti-molestation clause of the IPC.

 This is clear from the very definition of “sexual harassment” in the Act ranging from
“physical contact or advances” to a “request for sexual favours” or “making sexually
coloured remarks.” They are all offences in themselves, but are certainly not to the
degree of the crime of rape. But more importantly, the Act, which is designed to find
a civil remedy, has a specific clause that makes all cases under it non-cognisable.
  Under Clause 27(1) of the 2013 Act, “no court shall take cognizance of any offence
punishable under this Act save on a complaint by the aggrieved woman or on
authority of the Internal Committee.” Clause 27(3) specifically states that “every
offence under this Act shall be non-cognisable.” These are ambiguous clauses in the
Act that could be read as a nullification of the mandatory responsibility of the State to
take suo motu notice of a cognisable crime, such as the offences figuring in
the Tehelka case.

 It would be a mockery of the struggle of working women for justice if the Act were to
become an instrument to reduce the gravity of a cognisable crime such as rape, which
should be tried under the relevant anti-rape laws. It was not to provide justice to the
victim but to protect the accused, in this case the boss, that such a case was going to
be referred to an internal committee. However, events have overtaken this attempt to
underplay the crime, and the processes of law have already started with the filing of
the FIR.

AGENCY AND THE LAW

The other argument advanced to support Tehelka’s handling of the case is that a complainant
has “agency,” the capacity to take her own decisions, and that therefore if she chooses not to
report the crime to the police and chooses other ways of finding justice or even remaining
silent, that is her business and should be respected.

 The assertion of agency by a rape victim in relation to the action to take against her
tormentor requires that she has full information of the different laws, that she has the
time to think things through, the pros and cons of not going to the police to file a
complaint.

 Was she informed that the 2013 Act against sexual harassment deals with offences of
a lesser nature? Was she informed that the punishment under the Act could not in any
way match the crime that was inflicted on her? Did she know that her job was
protected by the law? Was she offered the best legal advice and support to fight for
justice? Without such a framework, the use of the argument of agency ends up as a
shield to protect the accused from being prosecuted under the anti-rape laws.
In cases such as Tehelka, it is essential for the organisation and management to advise the
victim to file a case with the police and to provide all legal help, which would better help her
make an informed choice. In fact, the employer herself under the Vishaka judgment had a
duty to report the offence to the police. Men in positions of power, who use that position to
exploit women employees for sexual gratification cannot be allowed to get away with it.

CURRENT STATUS OF THE CASE :.

A bench led by Chief Justice H L Dattu asked the trial judge to make sure that prosecution
supplies all the relevant documents to Tejpal within three weeks. It also asked Tejpal to
refrain from delaying the trial on any ground in future.
The petition, filed by advocate Sandeep Kapur, had contended that the session court while
passing the December 23, 2014, order was conscious of the “recklessness” shown by the
prosecution to uphold statutory requirements that are obligatory to provide all necessary
documents.
It also claimed that the prosecution had deviated from procedure and failed to appreciate that
speedy trial was barely a facet of fair trial. The petition alleged that the court has not
reprimanded the prosecution for its “deliberate non-compliance, for deviating from the
statutory mandates” to the detriment of the petitioner and his right to fair trial.
“That the petitioner has established a good prima facie case on merits and the balance of
convenience tilts overwhelmingly in favour of the petitioner. The impugned orders have been
passed by the trial court without consideration of the cardinal principle of law. Therefore, it is
just, proper and expedient that the interim relief as prayed for may kindly be granted in
favour of the petitioner. Grave and irreparable harm and injury would be caused to the
petitioner, in case interim orders as prayed for, are not granted,” the plea said.
The Tehelka chief has sought stay of the operation of the December 23 order of last year
passed by Additional Sessions Judge, Mapusa, Goa who will go ahead with arguments on
framing of charges. Tejpal has been charge sheeted for allegedly raping, sexually harassing
and outraging the modesty of a junior colleague during an event at a Goa hotel in November
last year.
He is currently in judicial custody and lodged at Sada sub-jail in Goa's Vasco town
Vishaka and others V. State of Rajasthan
Supreme Court Guidelines evoked in the case of Vishaka and others V. State of Rajasthan
and others owing to the gang rape of Bhanwari Devi by a group of Thakurs as she
attempted to stop a child marriage in their family.

 Bhanwari Devi was a social worker ( saathin) at rural level in a development

programme initiated by State Government of Rajasthan, aiming to curb the evil of
child marriages in villages.
 As a part of her work, Bhanwari Devi, tried to stop Ramkaran Gujjar’s infant
daughter’s marriage. Nevertheless, marriage took place but Bhanwari Devi was not
forgiven for her efforts to stop marriage. She was subjected to social boycott, and in
September 1992 was gang raped by five men including Ramkaran Gujjar in front of
her husband.
 The days that followed were filled with hostility and humiliation for Bhanwari Devi
and her husband. The only male doctor in the Primary Health Centre refused to
examine Bhanwari and the doctor at Jaipur only confirmed her age without making
any reference to rape in his medical report.
 At the police station too, the woman constables taunted her throughout the night. It
was past id night when the policemen asked bhanwari to leave her lehenga behind as
evidence and return to her village. She was left with only her husband’s bloodstained
dhoti to wear. Their pleas to let them sleep in the police station at night, were turned
down.
 The trial court acquitted the accused, but Bhanwari was determined to fight further
and get justice. She said that she had nothing to be ashamed of and that men should be
ashamed due to what they had done. Her fighting spirit inspired fellow saathins and
women’s groups countrywide.
 In the months that followed, they launched a concerted campaign for justice for
Bhanwari Devi. On December 1993, the High Court said, “it is a case of gang-
rape which was committed out of vengeance.”

 This provoked women’s groups and NGOs to file a petition in the Supreme Court of
India. As part of this campaign, the groups had filed a petition in the Supreme Court
 of India, under the name ‘Vishaka’, asking the court to give certain directions
regarding the sexual harassment that woman face at workplace. The result is the
Supreme Court judgement, which came on 13th August 1997, and gave the Vishaka
guidelines.

 Supreme Court judgement in the case of Vishaka and ors Vs. State of Rajasthan and
Ors, the Hon’ble Supreme Court has laid down guidelines and norms to be observed
to prevent sexual harassment of working women.

BROAD ISSUES

 Whether Article namely,

The right to equality (Art 14),
The right to practice one’s profession (Art 19(1)(g))
The right to life (Art 21)
Have been violated?
Whether the fundamental rights relating to the women at the workplace should be
protected?

LAWS INVOLVED

 Constitution of India : Article 14 (the right to equality), Article 15 (the right to non
discrimination), Article 19(1)(g) (the right to practise one’s profession) , Article 21
(the right to life)
 Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) : Article 11 ([State] takes all appropriate measures to eliminate
discrimination against women in the field of employment), Article 24 ([State shall]
undertake to adopt all necessary measures at the national level aimed at achieving the
full realization)

REASONING/ ANALYSIS
 The court agreed that there was a clear violation of fundamental rights and
there was an urgent need to bring an alternative measure and safeguard the
rights of women at workplace in absence of a legislative measure. “The
fundamental right to carry on any occupation, trade or profession depends on
the availability of a ‘safe’ working environment.

 The right to life means life with dignity. The primary responsibility for
ensuring such safety and dignity through suitable legislation, and the creation
of a mechanism for its enforcement, belongs to the legislature and the
executive.

 When, however, instances of sexual harassment resulting in violations of Arts

14, 19 and 21 are brought under Art 32, effective redress requires that some
guidelines for the protection of these rights should be laid down to fill the
legislative vacuum.”

 The court also looked into international conventions which must be used to
construe the meaning and content of the constitutional guarantee and to
promote its object if they are not inconsistent with the fundamental rights of
the country.

 In Minister of Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353
and Nilabati Behera v State of Orissa (1993) 2 SCC 746 courts said that in
absence of a legislative provision international conventions and norms should
be used to guarantee basic rights and this is also implicit from Arts 51(c) and
253 read with Entry 14 of the Union List in the Seventh Schedule of the
Constitution.

 Article 73 of the Constitution also provides that the executive power of the
Union is available until Parliament enacts legislation to expressly provide
measures needed to curb the evil in question and sexual harassment takes
away the right to work with dignity and gender equality which is universally
recognised as a basic human right.
 Article 11 and 24 of Convention on the Elimination of all forms of
Discrimination Against Women (CEDAW), General Recommendations Nos
22, 23 and 24 of the CEDAW Committee, relating to sexual harassment in the
workplace, and India’s commitment at the Fourth World Conference on
Women should be taken into account to construe the nature and ambit of the
gender equality guarantee and, since the guarantee includes protection from
sexual harassment and the right to work with dignity, to formulate preventive
guidelines.

 In the absence of legislation, the court has to ensure that human rights are
attained under Article 32 which must be coupled with the role of the judiciary
discussed in the 1995 Beijing Statement of Principles of the Independence of
the Judiciary in the LAWASIA region, principle 10 of which requires the
judiciary: (a) to ensure that all persons are able to live securely under the rule
of law; (b) to promote, within the proper limits of the judicial function, the
observance and the attainment of human rights; and (c) to administer the law
impartially among persons and between persons and the State.

 These principles were accepted by the Chief Justices of Asia and the Pacific
as representing the minimum standards necessary to be observed in order to
maintain the independence and effective functioning of the judiciary.

 In light of these discussions, the Court outlined the guidelines which were to
be observed in order to enforce the rights of gender equality and to prevent
discrimination for women in the workplace.

 These guidelines included the responsibility upon the employer to prevent or

deter the commission of acts of sexual harassment and to apply the
appropriate settlement and resolutions and a definition of sexual harassment
which includes unwelcome sexually determined behaviour such as: Physical
contact and advances.
  A demand or request for sexual favours; Sexually-coloured remarks; showing
pornography; Any other unwelcome physical, verbal or non-verbal conduct of
a sexual nature.

 The guidelines also set out that persons in charge of a workplace in the public
or private sector would be responsible for taking the appropriate steps like
setting an complaint mechanism to prevent sexual harassment by taking the
appropriate steps and 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.

Holding: The court stated that the guidelines and norms set out by the court are to be
strictly followed for the preservation and enforcement of the right to gender equality
of all working women. These guidelines are to be considered binding and enforceable
in law until legislation comes up with a law on sexual harassment at workplace.

ii) Vishakha vs. State of Rajasthan, Vishakha1

A non-governmental organization working for gender equality, had filed a writ petition
seeking the upholding of the fundamental rights of working women under Article 21 of the
constitution. The immediate reason for the petition was the gang rape of a saathin (a social
worker involved in women’s development programms) of Rajasthan in 1992.The assault was
an act of revenge as the saathin had intervened to prevent a child marriage. Supreme Court
provided a landmark judgment on the area of sexual harassment against women. As in his
particular aspect there is no law or enactment by the legislature that is why here the judiciary
applied its activist power and provides the some guide lines. Some of the guidelines are as
follows:-

1. Duty of Employer or other responsible persons in work places and other institution to
women employees to prevent the commission of acts of sexual harassment.

1
AIR 1967 SC 1643
2. Court also define sexual harassment. Sexual harassment includes: such unwelcome
sexually determined behaviuor as:

a) Physical contact and advances;

b) a demand or request for sexual favour;

c) Sexually coloured remarks;

d) Showing pornography;

e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

3. Court also provided guidelines to all employer public or private for taking preventive steps.

4. what type of criminal proceeding is required for this offence that is also suggested by the
court.

5. disciplinary action should be taken against the offender.

6. Complaint Mechanism is also suggest by court.

7. complaint committee is required.

8. there is a need of worker’s initiative.

9. there is need of awareness among female employees about their rights.

10.court provided the guideline in case of third party harassment.

11. central/ state Government are requested to enact the specific law in this regard

12 these guidelines will not prejudice any rights available under the protection of Human
Rights Act,1993.

After providing the guidelines court said “Accordingly, we direct that the above guidelines
and norms would be strictly observed in all work places for the preservation and enforcement
of the rights to gender equality of the working women. These directions would be binding
and enforceable in law until suitable legislation is enacted to occupy the field’’.