News from India 

Supreme Court Decision Expands Definition Of Sexual Harassment 
Premjit Singh (Chicago) 
Tel: (1-312) 861-2944 

    While there are no employment laws in India banning sexual harassment in the workplace, the Constitution of India sets forth several fundamental rights which relate to gender equality. The judiciary in India has begun to interpret the Constitution to prohibit sexual harassment through protection of certain fundamental rights. On January 20, 1999, the Supreme Court of India further defined the meaning of sexual harassment in this context in setting aside a lower court’s decision to reinstate a company officer who had been accused of making sexual advances toward a subordinate. The decision, entitled Apparel Export Promotion Council v. Chopra (1999) 1 Supreme Court Cases 759, underscores an increasing sensitivity by the government to gender issues. For multinational corporations operating in India, this sensitivity may signal increased legal exposure for employers that do not take appropriate preventative measures in the workplace.  

The Chopra Ruling 
   The Supreme Court case involved an officer of the Delhi-based Apparel Export Promotion Council, who had allegedly attempted to outrage the modesty" of a junior employee at a hotel, where she had been sent to work for the council chairman. This conduct allegedly violated Section 354 of the Indian Penal Code. The employer determined during a departmental inquiry that the officer was guilty of misconduct, and a disciplinary authority recommended his removal from service. The officer appealed to the department appellate authority, which subsequently upheld the decision. The officer then appealed to the Delhi High Court, which reversed the order and directed the officer’s reinstatement without back wages.  

In its decision, the Delhi High Court of India determined that the officer did not actually molest the victim, but only tried to molest her, and therefore his dismissal was not warranted. However, the Supreme Court strongly criticized the Delhi High Court for being swayed by "insignificant discrepancies, narrow technicalities or dictionary meaning of the expression ‘molestation’." The Supreme Court ruled that: "[t]here is no gainsaying that each incident of sexual harassment at the place of work results in violation of the right to gender equality and the right to life and liberty – the two most precious fundamental rights guaranteed by the Constitution of India." Most significantly, the Supreme Court expanded the definition of sexual harassment by ruling that physical contact is not an essential factor to charging someone with molestation. 

Defining Sexual Harassment 
   The ruling in Chopra follows the Supreme Court’s decision in Vishaka v. State of Rajasthan (1997) 6 Supreme Court Cases 241, which established the initial definition of sexual harassment for purposes of the Indian Constitution and issued legally binding guidelines for companies to ensure a safe working environment for women. In the 1997 decision in Vishaka, the Supreme Court determined that "[i]n view of the absence of enacted law to provide for effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, and more particularly, against sexual harassment at workplaces, we lay down guidelines and norms specified hereinafter for due observance at all workplaces or other institutions until a legislation is enacted for the purpose." Furthermore, the Supreme Court determined that sexual harassment is not confined to instances of rape or assault; instead, it can include "such unwelcome sexually determined behaviour (whether directly or by implication) as: physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature."  

    The Supreme Court decision in Vishaka also directed employers, both public and private, to take steps to prevent sexual harassment. According to the decision, all employers must include a prohibition against sexual harassment in their rules of conduct and discipline for employees; establish a complaint committee headed by women and with at least half of its members being women; initiate disciplinary proceedings and possible criminal action against any violators; and ensure that harassed women are not further victimized.  

Legal Rules In The Context Of Cultural Considerations 
   Despite the Supreme Court’s decision in 1997, many believe little has changed for working women in India. Without subsequent legislation and very few legal cases to set precedent, sexual harassment is still an on-going issue. It is so prevalent that, for example, in a survey of working women, 47 percent said that they had been sexually harassed at one time or another in the workplace.  

  Many influential factions in India still believe the woman’s place is in the home, and many victimized women are afraid to bring charges for fear of reprisal. Additionally, many women are unaware of their rights and many employers do not understand the guidelines set forth by the Supreme Court.  

Future Implications 
   The efforts of several different women’s organizations have begun to make a difference for working women in India. Major developments have included court rulings giving mothers the natural right to guardianship over their children; the current movement by certain public sector units to amend the Factories Act to allow women to work after 6 p.m.; and the Department of Personnel granting leave for adopting mothers. Additionally, it now appears that human rights violations involving sexual harassment will carry a cost for offenders and their employers alike. The Government recently promised stronger action against harassers with up to one-year imprisonment, a fine of Rs. 10,000, or both. Late last year, the India Sessions Court upheld a trial court’s decision forcing a senior IAS officer to pay another IAS officer Rs. 2 lakhs in damages and Rs. 50,000 for the cost of litigation for an incident of sexual harassment. In this case, the senior officer had allegedly slapped the woman’s bottom at a cocktail party. Perhaps even more significant for employers is a decision by an industrial court in Mumbai rendered in January of 1999, which directed Steelage Industries Limited to pay Rs. 40,000 to a female worker for failing to protect her from sexual harassment by a manager. 

Conclusion 
   The Supreme Court’s decision in Chopra demonstrates an increasing sensitivity toward sexual harassment and the fundamental rights of women. It also sends an unambiguous message to lower courts of their obligation to protect the fundamental right of women to be free from sexual harassment in the workplace. As this trend continues to grow, more cases of sexual harassment are bound to be brought to trial and decided in favor of victims. To protect themselves from potential legal exposure, employers should take the appropriate preventative measures outlined in the Supreme Court’s decision and make a strong effort to educate employees on the legal definition – and the potential consequences – of sexual harassment. 

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