Supreme Court of India · 1999
Apparel Export Promotion Council v. A.K. Chopra
(1999) 1 SCC 759 · AIR 1999 SC 625
Court
Supreme Court of India
Bench
Dr A.S. Anand CJI (author), V.N. Khare J
Date of judgment
20 January 1999
Citation
(1999) 1 SCC 759 · AIR 1999 SC 625
Vishaka gave India its definition of sexual harassment. Eighteen months later, this judgment supplied the thing a definition cannot: the standard by which conduct is measured against it, and the limits of a court’s power to soften an employer’s response. It is the case an Internal Committee reaches for when the respondent says nothing physical happened.
The question the Court framed
The Court opened by asking, in terms, whether an action of a superior against a female employee which is against moral sanctions and does not withstand the test of decency and modesty can fail to amount to sexual harassment — and whether physical contact with the female employee is an essential ingredient of such a charge. A superior officer had been removed from service by the disciplinary authority for his conduct towards a junior female employee, referred to throughout as Miss X; the departmental appellate authority had upheld the removal; the High Court had interfered with the punishment.
What the Court held
- Physical contact is not required. The respondent’s conduct was wholly against moral sanctions and decency and offensive to Miss X’s modesty; it was unbecoming of the good conduct expected of a superior officer and undoubtedly amounted to sexual harassment.
- A credible victim is to be believed. Where the evidence of the victim inspires confidence, as it did here, the courts are obliged to rely on it, and such cases are required to be dealt with great sensitivity.
- No sympathy, no mercy, no reduction. Sympathy in favour of the superior officer is wholly misplaced and mercy has no relevance. Reduction of punishment in a case like this is bound to have a demoralising effect on women employees and is a retrograde step.
- Judicial review does not reweigh the penalty. There was no justification for the High Court to interfere with a punishment commensurate with the gravity of the conduct. The High Court’s order was set aside and the removal from service restored.
A late apology did not help. Counsel for the respondent told the Court he was repentant, tendered an unqualified apology and offered to apologise to Miss X in person; the Court answered that it was too late in the day to show any sympathy, because any lenient action in such a case is bound to have a demoralising effect on working women.
Why this matters in an inquiry today
The definition the Court applied is the one now in Section 2(n) of the POSH Act 2013, whose five limbs reach sexually coloured remarks and any other unwelcome verbal or non-verbal conduct of a sexual nature — none of which requires touch. And the employer’s duty to act on the committee’s recommendation, which the Court protected from being watered down on review, is now Section 13(4): the employer shall act upon the recommendation within sixty days of its receipt. A respondent who argues that nothing physical happened is arguing against both the statute and this judgment.
Frequently asked questions
What did Apparel Export Promotion Council v. A.K. Chopra decide?
That conduct by a superior officer towards a junior female employee which is against moral sanctions, does not withstand the test of decency and modesty, and is offensive to her modesty amounts to sexual harassment — and that physical contact is not an essential ingredient of such a charge. The Supreme Court set aside the High Court’s order, which had interfered with the punishment, and restored the removal of the respondent from service as imposed by the disciplinary authority and upheld by the departmental appellate authority.
Is physical contact necessary for sexual harassment under Indian law?
No. The Court framed the question directly — whether physical contact with the female employee is an essential ingredient of such a charge — and answered it against the respondent, holding that his conduct, which fell short of physical contact, was nonetheless unbecoming of a superior officer and undoubtedly amounted to sexual harassment. The five-limb definition from Vishaka, now Section 2(n) of the POSH Act 2013, likewise extends to sexually coloured remarks and to other unwelcome verbal or non-verbal conduct of a sexual nature.
Why does this case matter for a disciplinary inquiry today?
For three propositions the Court stated in terms. First, where the evidence of the victim inspires confidence the courts are obliged to rely on it, and such cases must be dealt with great sensitivity. Second, sympathy in favour of the superior officer is wholly misplaced and mercy has no relevance; reducing the punishment in such a case has a demoralising effect on women employees. Third, a court exercising judicial review has no justification to interfere with a punishment that is commensurate with the gravity of the misconduct. Each is routinely relied on when an employer’s action on an Internal Committee report is challenged.
How does the case relate to Vishaka and to the POSH Act?
The judgment applied the Vishaka guidelines, which it describes as issued by a three-Judge Bench through a rather innovative judicial law-making process because the civil and penal laws then in force did not adequately protect women from sexual harassment at the workplace. Vishaka supplied the definition; A.K. Chopra supplied the standard for judging conduct against it and for judicial review of the employer’s response. Both were later carried into the POSH Act 2013 — the definition in Section 2(n), and the employer’s duty to act on the committee’s recommendation in Section 13(4).