Important For Courts To Back Spirit Of Right Against Sexual Harassment: Supreme Court

The Supreme Court on Friday said that it is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution.

The top court added that it is also important for the courts to be mindful of the power dynamics that are mired in sexual harassment at the workplace.

It said that the existence of transformative legislation may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment.

“We would also like to highlight a rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules,” a bench of Justices DY Chandrachud and AS Bopanna said.

The top court observed in a verdict in which it set aside the Calcutta High Court order of December 18, 2018, where disciplinary proceedings against a BSF Head constable accused of sexual assault on a junior officer was set aside on the ground that the Commandant had no jurisdiction to call for additional Record of Evidence and the obligation of the Summary Security Force Court (SSFC) to furnish reasons under the BSF Act, 1968.

“The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 penalizes several misconducts of a sexual nature and imposes a mandate on all public and private organizations to create adequate mechanisms for redressal. However, the existence of transformative legislation may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment”, it said.

The bench said that there are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior.

“It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. It is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace”, it said.

Referring to the present case, the bench said that the complainant was a constable complaining against the head constable, who was his superior.

“Without commenting on the merits of the case, it is evident that the discrepancy regarding the date of occurrence was minor nature since the event occurred soon after midnight and on the next day,” it said.

The bench said that the High Court deeming such a trivial aspect to be of monumental relevance, while invalidating the entirety of the disciplinary proceedings against the head constable and reinstating him to his position renders the complainant's remedy at naught.

“The history of legal proceedings such as these is a major factor that contributes to the deterrence that civil and criminal mechanisms pose to persons aggrieved of sexual harassment”, it said.

It added that the High Court, in this case, was not only incorrect in its interpretation of the jurisdiction of the Commandant and the obligation of the SSFC to furnish reasons under the BSF Act 1968 and Rules therein, but also demonstrated “a callous attitude to the gravamen of the proceedings”.

It said, “We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties”.

The top court passed the verdict on the appeal filed by the Centre and officials of the Border Security Force against the Calcutta High Court judgement of December 2018 which had quashed disciplinary proceedings against the head constable and reinstated him to his initial position in the BSF.

The incident in question is alleged to have taken place on the night intervening April 16 and 17, 2006.

The complainant, a Constable in the BSF, was on Naka duty between 02:00 to 06:00 hours when the head constable is alleged to have committed an act of sexual assault on him. After the head constable pleaded not guilty, the SSFC found him guilty of the charge and demoted him to the rank of a Constable as a punishment.

The Single Judge of the High Court in its verdict which was upheld by the division bench on October 18, 2018, on the ground that the Commandant did not have jurisdiction to direct the preparation of an additional Record of Evidence under Rule 51 of the Border Security Force Rules, as it stood at the relevant time; and no reasons were furnished by the SSFC or the appellate authority-Director General of BSF -for holding the head constable guilty.

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