Case BriefsSupreme Court

Supreme Court:

“The presence of lady members in the police force, considering the crime against women, is a prime need of the hour. Thus we feel that every endeavor should be made to ensure that there is higher representation of women in the police services.”

Granting relief to women candidates who could not appear for the physical test during the selection process for Bihar Police held in 2018 because of their pregnancy, the Court has directed the Bihar Police Subordinate Service Commission to conduct a fresh test for such applicants. The bench of Sanjay Kishan Kaul and Krishna Murari, JJ has asked the Commission to conduct the physical test of the candidates and adjust them against vacancies notified this year. The Court said,

“We are of the view that not only the appellant but all such candidates who sought deferment on account of pregnancy alone should be called for PET.”

It was brought to the Court’s notice that the total number of ladies who claimed extension of PET on the basis of pregnancy or injuries is stated to be 78 in all, out of which 73 are on account of pregnancy. Noticing that it is on the prodding of the Supreme Court that these examinations were held, the Court said that had recruitments taken place in accordance with certain pre-defined schedules, intervention of this court would not have been called for as candidates would have known as to when recruitment would take place and would have to plan their life accordingly. The Court, hence, held that

“it is a fit case where the benefit should be made available to the candidates who may be in the advance stage of pregnancy at the relevant stage of time but have otherwise qualified the test.”

The Court, hence, directed that out of the candidates so called those who qualify the PET and are otherwise found in the merit for appointment alone would be eligible to be considered for appointment, subject to verification of the factum of pregnancy. Such process should be completed within a period of two months. All such people will, however, take merit at the bottom of the current list as it is the vacancies which are now advertised against which the candidates are being adjusted.

The bench, however, clarified that the aforesaid direction was a one-time measure as now the examinations are being held periodically. It, said,

“We are not inclined to open a flood gate effecting the sanctity of the future examination.”

Case Timeline

  • Bihar Police Subordinate Service Commission issued advertisement dated 16th September, 2017 to fill the vacancies for the post of Police Sub Inspector in the State of Bihar.
  • Preliminary examination was conducted on 11th March, 2018
  • Main examination was conducted on 22nd July, 2018.
  • Physical Evaluation Test (PET) which was scheduled for 25th September, 2018.
  • The appellant being in advance stage of pregnancy where the delivery was expected in the month of October, 2018 sought an extension of PET for three to six months on account of being completely on bed rest as advised by the doctor.
  • There was no response to this representation and the appellant thus filed a writ petition before the Patna High Court which was allowed by order dated 3rd October, 2018, directing the Commission to fix any date after two months after informing her of the date of the PET.
  • The Division Bench overturned this decision on 1st March, 2019.

[Khushbu Sharma v. Bihar Police Subordinate Service Commission, 2019 SCC OnLine SC 1323, order dated 27.09.2019]

OP. ED.

Me Too movement in India is one of those movements and protests which is acting like an eye-opener along with a soul-opener for the patriarchal society by leading it towards the cleansing of anarchs and patriarchs. It is not limited to one particular sect, category or profession; it is a term being used by every woman who has faced any degree of sexual harassment in her entire life.

Sexual Harassment: It results in violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under Article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.

The cases of sexual harassment are being voiced out from almost every other profession that exists, which forces us to highlight this specific Act with a view to give clarity on “Sexual Harassment of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013”.

Background of the Act:

The said Act was formulated and is based on the commonly known as ‘Vishakha Guidelines”, Vishakha v. State of Rajasthan; (1997) 6 SCC 241. The decision of the said case was in regard to ‘Rights of working women against sexual harassment in the workplace’, in which it was held that working women have rights to gender equality, to work with dignity and to a working environment safe and protected from sexual harassment or abuse.

In accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013the term Sexual Harassment has been defined under Section 2(n) as follows:

“It includes any one or more of the following unwelcome acts of behaviour (whether directly or by implication) namely:-

  • Physical contact and advances; or
  • a demand or request for sexual favours; or
  • making sexually coloured remarks; or
  • showing pornography; or
  • any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

The relevant provisions of the Act, a compilation of total 30 provisions ranging from filing of complaint to punishments, etc. have been clearly stated in the Act which can be referred below:

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” 

Penal Code, 1860 | Provisions protecting women in cases of Sexual Harassment:

Section 294- Obscene acts and songs.—Whoever, to the annoyance of others—(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

Section 354- Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both

Section 354 (A) – Sexual harassment and punishment for sexual harassment.—(1) A man committing any of the following acts—

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks,

shall be guilty of the offence of sexual harassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 354-B. Assault or use of criminal force to woman with intent to disrobe.—Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.

Section 354-C. Voyeurism.—Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

Section 354-D. Stalking.—(1) Any man who—

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:

Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) in particular circumstances, such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.]

Section 499- Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Section 503- Criminal intimidation.—Whoever threatens another with an injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.

Section 509- Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman,[shall be punished with simple imprisonment for a term which may extend to three years, and also with fine].

Information Technology  Act, 2000

 If a man posts any obscene or defamatory material on a public, online platform, intending to harass a woman, it is considered a crime under Section 67 of the Information Technology Act. The accused can face jail time of 10 years coupled with a fine.

Sexual Harassment electronic-Box (SHe-Box) for registering complaints related to sexual harassment at workplace was launched 

The Minister of Women & Child Development, Smt Maneka Sanjay Gandhi launched an online complaint management system titled Sexual Harassment electronic–Box (SHe-Box) for registering complaints related to sexual harassment at workplace today. The complaint management system has been developed to ensure the effective implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (the SH Act), 2013.

Few Matters pertaining to ‘Sexual Harassment at Workplace’:

  • In 2012, an employee working at a restaurant at the Indira Gandhi International Airport, New Delhi, filed a case against a senior Air India official, accusing him of sexually harassing her by showing her porn clips and making physical advances. The woman alleged that the Assistant General Manager at Air India ignored her complaint.
  • Wipro was dragged to court by Shreya Ukil in 2015, when she alleged that she was being discriminated against when it came to increment of salary and that her manager forced her to have an affair with him. In the GBP1.2-million lawsuit filed in London, Wipro won the case when UK Employment Tribunal upheld the dismissal of the complainant from the services of the organisation as appropriate and rejected claims of adverse cultural attitude towards women in the organisation.
  • In the most recent case of sexual harassment, a former employee alleged rampant sexual harassment by the CEO Arunabh Kumar of the Viral Fever (TVF). The complaint was made anonymously on social media and several other TVF employees came out in support, recounting their own incidents of molestation. The CEO, blatantly wielding his position of power in his unapologetic comment to the Mumbai Mirror, said, “The kind of insinuations the FB post makes are untrue. I am a heterosexual, single man and when I find a woman sexy, I tell her she’s sexy. I compliment women. Is that wrong? Having said that, I am very particular about my behaviour – I will approach a woman, but never force myself.”

As the countless harrowing incidents of women are coming up, we as a society need to believe in them and their stories by giving them a direction towards the umbrella of rights as stated above in wake of justice and protection of their integrity.