The Supreme Court of India (“SC”), in its recent judgement in the case of Aureliano Fernandes v. State of Goa and others, dated May 12, 2023, has noted serious lapses in the implementation and enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“SH Act”).
Aiming to help fulfil the fundamental objective of the SH Act and in an attempt to ensure the most beneficial execution of the same, the SC has issued certain directions regarding effective implementation and enforcement of the law.
For the purpose of context, the SH Act provides for, inter alia, protection of women against sexual harassment at the workplace, prevention of sexual harassment, and sets out a redressal mechanism to be implemented by an employer. As per the SH Act, the employer of an establishment with 10 or more employees is required to set up an Internal Committee (“IC”). The SH Act also sets out inter alia the process to be followed for making a complaint and inquiring into the complaint by the IC in a time bound manner. However, the SC, in the aforementioned judgement, made a note of the glaring lacuna between the prescribed processes, the actual fragmented application of the same, and the need for immediate optimization.
The perfect example of such inconsistency is the case at hand, wherein Mr. Aureliano Fernandes (“Appellant”) was dismissed from service and disqualified from future employment at Goa University after the report submitted by the Complaints Committee established sexual harassment by the Appellant in response to multiple complaints, amounting to grave misconduct. Due to certain delays caused by the Appellant’s health issues, this decision was arrived at ex parte (in the absence of the party), after following prescribed procedure “as far as practicable”. However, the discretion vested in the Complaints Committee was improperly exercised and defied the principles of natural justice, which clearly state that both sides must be given fair opportunity to be heard. In this regard, the SC observed that lapses in the enforcement of the SH Act are essentially counterproductive and interfere with the integrity of the objective of the SH Act itself – protecting women at the workplace.
Lack of confidence in process and outcome, lack of awareness on complaint and redressal procedure, overall lack of strict adherence to the enforcement regime, and other such practical challenges are deterring the success of the SH Act.
Although the following directions issued by the SC in this case predominantly concern governmental departments and authorities, they are worth noting for private entities as well. The SC’s position clearly reiterates the obligation of all organizations to strictly adhere to and implement the provisions of SH Act with the primary objective of making workplaces in India safe and secure for women.
The SC has, inter alia directed:
a. The Union of India, State Governments, and Union Territories to verify whether all the concerned Ministries, Departments, Government Organizations and Authorities have constituted ICs/LCs, whilst strictly adhering to the requirements relating to constitution of IC/LC under the SH Act.
b. Necessary information regarding constitution and composition of the ICs/LCs, contact information of the designated person(s), prescribed procedure for submitting an online complaint, as well as the relevant rules, regulations and internal policies are to be made readily available on the website of the concerned Authority/ Organization/ Institution, as the case may be, and updated as and when required.
c. All the statutory bodies of professionals at the apex level and the state level (including those regulating doctors, lawyers, and other professionals), universities, colleges, other educational institutions, and Government/private hospitals/nursing homes are required to carry out a similar exercise.
d. Immediate steps are to be taken by the authorities/managements/employers to familiarize members of the ICs/LCs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace.
e. The authorities/management/employers are required to regularly conduct orientation programmes, workshops, seminars, and awareness programmes to upskill members of the ICs/LCs, and to educate women employees and women’s groups about the provisions of the SH Act, and rules thereunder.