Supreme Court of India · 2012
Medha Kotwal Lele & Ors. v. Union of India & Ors.
W.P. (Crl.) Nos. 173–177 of 1999 · decided 19 October 2012
Court
Supreme Court of India
Bench
R.M. Lodha J (author), Anil R. Dave J, Ranjan Gogoi J
Date of judgment
19 October 2012
Proceedings
Writ Petition (Criminal) Nos. 173–177 of 1999, with T.C. (C) No. 21 of 2001 and Civil Appeals 5009–5010 of 2006 · AIRONLINE 2012 SC 632
Vishaka wrote the rules in 1997. This is the judgment that, fifteen years on, made them bite. The Court’s own opening line is the point: the Vishaka judgment came on 13 August 1997, yet fifteen years after the guidelines were laid down under Article 141 of the Constitution, many women still struggled to have their most basic rights protected. Lip service, hollow statements and inert and inadequate laws with sloppy enforcement, the Court said, are not enough.
What had already been ordered
The judgment records that by an order of 26 April 2004 the Court had directed that the Complaints Committee envisaged by Vishaka would be deemed to be an inquiry authority for the purposes of the Central Civil Services (Conduct) Rules, 1964, that its report would be deemed to be an inquiry report under those Rules, and that the disciplinary authority would act on the report accordingly — with a similar amendment to be carried out in the Industrial Employment (Standing Orders) Rules. Many States had not done so. Hence the directions below.
The directions of 19 October 2012 — paragraph 16
Holding that the guidelines in Vishaka should not remain symbolic, the Court directed, until legislation was in place:
States and Union Territories that had not amended their Civil Services Conduct Rules were to do so within two months, providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action — to be treated as the finding in an inquiry into the misconduct, not as a mere preliminary investigation.
The same amendment was to be carried into the Industrial Employment (Standing Orders) Rules within two months.
States and Union Territories were to form an adequate number of Complaints Committees functioning at taluka, district and state level, each headed by a woman and, as far as possible, with an independent member associated.
State functionaries and private and public sector undertakings, organisations, bodies and institutions were to put in place sufficient mechanism to ensure full implementation of the Vishaka guidelines; where the alleged harasser is found guilty, the complainant is not to be forced to work with or under that person, and where appropriate the harasser should be transferred; harassment and intimidation of witnesses and complainants to be met with severe disciplinary action.
The Bar Council of India, the Medical Council of India, the Council of Architecture, the Institute of Chartered Accountants, the Institute of Company Secretaries and other statutory institutes were to ensure that the persons and bodies registered or affiliated with them follow the Vishaka guidelines, issuing the necessary instructions or circulars within two months.
Paragraph 17 added the enforcement route: non-compliance with the Vishaka guidelines, the orders following Vishaka, or these directions entitles the aggrieved person to approach the respective High Court. The petitions and appeals were disposed of on those terms, with no order as to costs.
From directions to statute
The Act followed within fourteen months, and the machinery the Court demanded is what it codified: a committee in every workplace under Section 4(1), a Local Committee at district level under Section 6, the Committee’s findings recommended to the employer under Section 13(3) and acted upon within sixty days under Section 13(4). Direction (iv)’s insistence that a complainant not be made to work under a harasser found guilty is the reason interim and final relief in an inquiry is framed as it is.
Frequently asked questions
What is Medha Kotwal Lele v. Union of India about?
It is the judgment in which the Supreme Court, fifteen years after Vishaka, recorded that many women still struggled to have their most basic rights protected at the workplace despite the guidelines having been laid down under Article 141 of the Constitution, and held that the guidelines should not remain symbolic. It issued further binding directions to the States and Union Territories, to public and private employers, and to the statutory professional bodies, to operate until legislation was enacted.
What did the Supreme Court direct in 2012?
Five things, each within two months: Civil Services Conduct Rules to be amended so that the Complaints Committee’s report is deemed an inquiry report in disciplinary action; the same amendment in the Industrial Employment (Standing Orders) Rules; Complaints Committees at taluka, district and state level, headed by a woman; mechanisms in every public and private organisation to implement Vishaka fully, including that a complainant is not made to work under a harasser found guilty and that intimidation of witnesses attracts severe disciplinary action; and directions to the Bar Council of India and the other statutory professional councils to secure compliance among those registered with them.
What was the earlier order of 26 April 2004?
The judgment records that by an order of 26 April 2004 the Court had already directed that the Complaints Committee envisaged by Vishaka would be deemed to be an inquiry authority for the purposes of the Central Civil Services (Conduct) Rules, 1964, that its report would be deemed an inquiry report under those Rules, and that the disciplinary authority would act on the report in accordance with the Rules — with a similar amendment to be carried out in the Industrial Employment (Standing Orders) Rules. The 2012 directions extended that scheme to the States that had not complied.
What happens if the directions are not complied with?
Paragraph 17 of the judgment provides that where there is non-compliance or non-adherence to the Vishaka guidelines, the orders of the Court following Vishaka, or the 2012 directions, it is open to the aggrieved person to approach the respective High Court, which the Court considered better placed to consider such grievances effectively.
Does this judgment still apply now that the POSH Act exists?
The field is now occupied by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, enacted a little over a year after this judgment, and it is the Act an employer complies with. But the machinery the directions demanded is what the Act codified: an Internal Committee in every workplace under Section 4, the Committee’s findings recommended to the employer under Section 13(3) and acted upon within sixty days under Section 13(4), and the Local Committee at district level under Section 6. Medha Kotwal Lele is the reason the Act reads as it does, and it remains the authority that Vishaka is binding, not advisory.