Case: Arati Durgaram Gavandi Vs. Managing Director, Tata Metaliks Limited &amp; Others

work places or other institutions. These norms and guidelines shall continue to hold the field until legislation is enacted. The Supreme Court directed that these guidelines and norms be treated as law declared by the Court under Article 141 of the Constitution of India. 8. The guidelines formulated in the judgment of the Supreme Court in Vishaka begin with the following prefatory statement: It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women. Clause 1 of the guidelines imposes a duty upon the employer and other responsible persons in work places to prevent or deter the commission of acts of sexual harassment and to provide procedures for resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. Clause 2 of the guidelines defines the expression sexual harassment. Clause 3 requires all employers or persons incharge of work places whether in the public or private sectors to take appropriate steps to prevent sexual harassment. This includes, under clause 4, criminal proceedings and under clause 5, disciplinary action. Clause 6 of the guidelines provided for a complaint mechanism and clause 7 elaborates upon the constitution of a Complaints Committee: 6. Complaint Mechanism:Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. 7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party either NGO or other body who is familiar with the issue of sexual harassment. (emphasis supplied). 9. The judgment in Vishaka contains a specific direction that the guidelines and norms set out therein would be strictly observed at all work places for the preservation and enforcement of a right to gender equality of all working women. The Supreme Court has held that its directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. 10. The right to gender equality is intrinsic to the right to life under Article 21 of the Constitution. The right to life comprehends the right to live with dignity. An affront to or the invasion of gender is destructive of the right of every woman to live with dignity. Article 15 of the Constitution which contains a prohibition inter alia against discrimination by the State on the ground of sex is an emanation of that right. The provisions of the Constitution recognize gender equality as a fundamental right. Gender equality in all its dimensions is a basic human right which is recognized by and embodied in the provisions of the Constitution. The broad sweep of the human right to gender equality traverses every facet of the position of a woman in society. The right comprehends the preservation of the dignity of women. At a basic level, gender equality postulates protection of women against all those practices which invade upon the dignity of being and the privacy of the person. A dignified existence includes the right to earn ones livelihood in conditions that are fair and gender neutral. A condition which operates to disadvantage a woman worker on the ground of gender is fundamentally anachronistic to the vision of our constitutional order. Gender as a concept has wider dimensions than sex. Gender equality postulates the realization of societal values that travel beyond a mere notion of sexual equality. Gender in that sense denotes the realization of every facet of personality that contributes to the fullness of life to which a woman is entitled. 11. Every employer in the territory of India is bound to abide by the judgment of the Supreme Court, which is law under Article 141 of the Constitution. In the present case, the affidavit in reply which has been filed on behalf of the management shows that an Advocate was appointed as an Enquiry Officer to probe into the allegations which the Petitioner had made of the violation of her human right to gender equality. Appointing an Advocate as an Enquiry Officer does not constitute valid or adequate compliance with the judgment of the Supreme Court. The mandate of the law laid down by the Supreme Court is that an employer at the work place must constitute a complaints mechanism to deal with complaints of victims. The Supreme Court directed that the complaint mechanism should be adequate to provide a Complaint Committee, a special counsellor or other support service including the maintenance of confidentiality. The Complaint Committee is required to be headed by a woman and not less than half of its members are required to be women. The Complaints Committee has to involve a third party either an NGO or any other body which is conversant with the issues which arise in matters of sexual harassment. The management in the present case is in breach of its obligation. The complaint of the Petitioner ought to have been referred to a Complaints Committee as directed in Vishaka. If a Complaints Committee has not been constituted, it ought to have been constituted in accordance with the directions of the Supreme Court. It was no part of the function of the management to determine whether the complaint was genuine or otherwise and the efforts made in the affidavit to demonstrate that the complaint was made for the first time on 31st August 2004 is an encroachment on the jurisdiction which is vested in the complaints mechanism by the judgment of the Supreme Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. In Vishaka (supra), the Supreme Court held that gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right. (Paragraph 10) The Supreme Court noted that there was a global acceptance by International Conventions of the common minimum requirements of this right. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires all States who are parties thereto to take appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular, (a) The right to work as an inalienable right of all human beings; and (b) The right to protection of health and safety in working conditions. The Convention takes note of the fact that equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the work place. The Convention was ratified by the Government of India on 25th June 1993. The Supreme Court held that the constitutional guarantee of gender equality in Article 15 must be construed in the context of the obligation assumed by India as a party to the Convention. The Supreme Court held that in the absence of legislation enacted to enforce the basic human right to gender equality and the guarantee against sexual harassment, more particularly against sexual harassment at the work place, the Court was laying down guidelines and norms for due observance at all work places or other institutions. These norms and guidelines shall continue to hold the field until legislation is enacted. The Supreme Court directed that these guidelines and norms be treated as law declared by the Court under Article 141 of the Constitution of India.The judgment in Vishaka contains a specific direction that the guidelines and norms set out therein would be strictly observed at all work places for the preservation and enforcement of a right to gender equality of all working women. The Supreme Court has held that its directions would be binding and enforceable in law until suitable legislation is enacted to occupy thedignified existence includes the right to earn ones livelihood in conditions that are fair and gender neutral. A condition which operates to disadvantage a woman worker on the ground of gender is fundamentally anachronistic to the vision of our constitutional order. Gender as a concept has wider dimensions than sex. Gender equality postulates the realization of societal values that travel beyond a mere notion of sexual equality. Gender in that sense denotes the realization of every facet of personality that contributes to the fullness of life to which a woman is entitled.Every employer in the territory of India is bound to abide by the judgment of the Supreme Court, which is law under Article 141 of the Constitution. In the present case, the affidavit in reply which has been filed on behalf of the management shows that an Advocate was appointed as an Enquiry Officer to probe into the allegations which the Petitioner had made of the violation of her human right to gender equality. Appointing an Advocate as an Enquiry Officer does not constitute valid or adequate compliance with the judgment of the Supreme Court. The mandate of the law laid down by the Supreme Court is that an employer at the work place must constitute a complaints mechanism to deal with complaints of victims. The Supreme Court directed that the complaint mechanism should be adequate to provide a Complaint Committee, a special counsellor or other support service including the maintenance of confidentiality. The Complaint Committee is required to be headed by a woman and not less than half of its members are required to be women. The Complaints Committee has to involve a third partyeither an NGO or any other body which is conversant with the issues which arise in matters of sexual harassment. The management in the present case is in breach of its obligation. The complaint of the Petitioner ought to have been referred to a Complaints Committee as directed in Vishaka. If a Complaints Committee has not been constituted, it ought to have been constituted in accordance with the directions of the Supreme Court. It was no part of the function of the management to determine whether the complaint was genuine or otherwise and the efforts made in the affidavit to demonstrate that the complaint was made for the first time on 31st August 2004 is an encroachment on the jurisdiction which is vested in the complaints mechanism by the judgment of the Supreme Court.