[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)]

[This is a guest post by Megha Mehta.]

On 19.8.2008, Nisha Bhatia, a senior RAW officer [‘appellant’] attempted suicide in the reception of the Prime Minister’s Office to protest the mishandling of her sexual harassment complaint by RAW [‘PMO Incident’]. In April 2020, her long-standing legal battle finally culminated in a judgement by a Division Bench of the Supreme Court (Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394) awarding her Rs. 1 lakh as compensation for the violation of her fundamental right to life and dignity under Articles 14 and 21 of the Constitution.

In this essay, I argue two points: first, this decision paves the way for radically redefining sexual harassment by extending its scope from unwelcome sexual behavior to all forms of gender-based discrimination at the workplace. Furthermore, it imposes positive institutional liability for failure to provide a safe and gender-sensitive working environment over and above that stipulated in the Vishakha guidelines (Vishakha v. State of Rajasthan, AIR 1997 SC 3011), and the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 [‘POSH’]. Second, the Court, however, fails to apply this understanding of sexual harassment as a form of workplace discrimination while analyzing the mala fides of the appellant’s compulsory retirement by RAW.

Expanding the Scope of Sexual Harassment

A brief summary of facts: the appellant was directly recruited to RAW in 1988. She was posted as Director, Training Institute (Gurgaon) and Director at the Delhi HQ in July and August 2007 respectively. It was while serving in this capacity that she filed a sexual harassment complaint on 7.8.2007 against Mr. Alok Chaturvedi (Secretary (R)-In-Charge of RAW) and Mr. Sunil Uke (Joint Secretary-In-Charge) alleging that they had victimized her for refusing to join an internal sex racket.

The organization constituted an Internal Complaints Committee (‘ICC’), as required by the Vishakha guidelines, after a gap of almost 3 months. Moreover the said ICC did not contain a “third party, either NGO or other body who is familiar with the issue of sexual harassment” as stipulated in Vishakha. The ICC was ultimately reconstituted with the addition of one Ms. Tara Kartha (Director, National Security Council Secretariat) as third-party member in April 2008-evidently not a NGO or person associated with sexual harassment issues. When the appellant refused to participate in the ICC proceedings citing non-compliance with Vishakha and the lack of authority vested in the ICC to proceed against Mr. Chaturvedi, the ICC ex-parte concluded that no allegation of sexual harassment was made out. It was only after the infamous PMO Incident that the PM constituted an External Committee under the chairmanship of a retired female IAS officer, which also concluded that the sexual harassment allegation was not proved. However the External Committee reported in its findings that the appellant’s complaint was not given proper redressal, and that Mr. Chaturvedi as an employer had committed gross violation of the Vishakha guidelines.

In the meanwhile, the PMO, through the Press Information Bureau, released a press note on the PMO Incident stating that the appellant was in a ‘disturbed state of mind’ and suffering from psychiatric ailments (This was later quashed by the Supreme Court vide order dated 15.12.2014 as violative of the appellant’s human rights and dignity, but an archived copy of the note is available here). Subsequently, the appellant was compulsorily retired under Rule 135 of the RAW (Recruitment, Cadre & Services) Rules, 1975 [‘1975 Rules’] due to her being ‘exposed’ as an intelligence officer. It is out of the appellant’s constitutional challenge to Rule 135 and her retirement order, along with the various writ petitions filed by her seeking injunctive reliefs against the respondents that the decision in Nisha Priya Bhatia has arisen.

The Court, relying on the External Committee’s findings, held that the respondents (Union of India and RAW) had violated the appellant’s fundamental rights and were liable to pay her compensation as follows:

102. The scheme of the 2013 Act, Vishaka Guidelines and Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) predicates that a non-hostile working environment is the basic limb of a dignified employment. The approach of law as regards the cases of sexual harassment at workplace is not confined to cases of actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace…The factual matrix of the present case is replete with lack of sensitivity on the part of Secretary (R) qua the complaint of sexual harassment. To wit, time taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constitute an appalling conglomeration of undignified treatment and violation of the fundamental rights of the petitioner, more particularly Articles 14 and 21 of the Constitution.

104. In the present case, the petitioner had faced exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment. Regardless of the outcome of the inquiry into the stated complaint, the fundamental rights of the petitioner had been clearly impinged. Taking overall view of the circumstances, we consider this to be a fit case to award compensation to the petitioner for the stated violation of her right to life and dignity, quantified at Rs.1,00,000 (Rupees one lakh only). Had it been a case of allegations in the stated complaint of the petitioner been substantiated in the duly conducted inquiry (which the petitioner had failed to do), it would have been still worst and accentuated violation of her fundamental rights warranting suitable (higher) compensation amount. (emphasis supplied)

The above discussion is an important step forward in Indian sexual harassment jurisprudence. In the United States, employment law scholars have long since critiqued sexual harassment law for being based on a ‘desire-dominance’ paradigm which places inappropriate sexual advances by men towards female colleagues at the center of the problem. This ignores the underlying structures of gender discrimination at the workplace which facilitate such behavior (Schultz, 1998, 2005). In the present case, Mr. Chaturvedi had allegedly commented to the appellant that instead of being worried about her career and children, she should find herself a man to ‘have fun’ with. Thus the appellant’s grievances stemmed not just from her supervisors’ pressurizing to join a sex racket, but from their overall discriminatory attitude, and a general organizational unwillingness to impose consequences for such sexist behavior.

The ‘desire-dominance’ paradigm is apparent in Indian sexual harassment law, inasmuch as both the Vishakha guidelines and POSH define sexual harassment only in terms of unwelcome behavior of sexual nature, and exclude other non-sexual forms of gender-based discrimination. The creation of a ‘hostile work environment’ is treated as sexual harassment only when it is connected with unwelcome sexual behavior (Vishakha, ¶16.2; POSH, Section 3), though employers are generally obligated to ensure safe working environments.

Further, though Vishakha recognizes sexual harassment as a violation of working women’s fundamental rights under Articles 14, 15, 19(1)(g) and 21, it is curiously silent on Article 16. There is no legal framework in India for recognizing sexual harassment as a form of employment discrimination akin to Title VII of the Civil Rights Act, 1964 and the Equal Employment Opportunity Commission in the United States. Rather, there is little emphasis on institutional liability under Indian law-while Vishakha does not expressly provide for employer liability (though it is implied that constitutional remedies are available), POSH only provides for the imposition of a criminal fine extending to Rs 50,000 for those who contravene its mandate (POSH, Section 26). This posits non-compliance as a criminal offence against the State and does not provide for any civil compensatory remedy to the complainant, though arguably the courts may direct that such a fine should be deposited in favour of the complainant under Section 357 of the CrPC.

Therefore Nisha Priya Bhatia is radical insofar as it expressly recognizes that regardless of whether her allegation is proved or not, a female employee may, as a matter of constitutional right, claim compensatory remedies from her employer for the creation of a hostile environment at the workplace. Further, this is treated as a distinct violation from the conventional definition of sexual harassment as the commission of unwelcome sexual acts, though the decision notes that the victim may claim a higher amount of compensation if such acts are proved. The terms ‘prejudice’ and ‘discriminatory’ are used broadly in the decision, and can hence be construed to account for the intersectionalities of gender, caste and class-based discrimination which female employees experience at the workplace. It can be hoped that in due course of time this protection will be extended to persons of all genders and sexualities who experience discrimination on account of not conforming to hegemonic standards of masculinity at the workplace. However, as Part II elaborates, this decision does not really break out of the ‘desire-dominance’ paradigm.

Sexual Harassment as a Labour Rights Issue 

Unfortunately, the reconceptualization of sexual harassment discussed in Part I comes only towards the fag end of the judgement. The Court does not apply this understanding of sexual harassment as a form of workplace discrimination while dealing with the validity of the appellant’s compulsory retirement by RAW.

The appellant had contended that Rule 135 of the 1975 Rules violates Articles 14 and 311 of the Constitution insofar as it confers the discretion to compulsorily retire an intelligence officer who is ‘exposed’, without the safeguard of an inquiry. Further, that her compulsory retirement was mala fide and an act of victimization. Though the Central Administrative Tribunal directed her reinstatement (while refraining from deliberating on the constitutionality of Rule 135), the Delhi High Court upheld the retirement order. The Supreme Court held, relying upon State of Bombay v. Saubhagchand M. Doshi, AIR 1957 SC 892 and State of U.P. v. Sri Shyam Lal Sharma, (1971) 2 SCC 514 that Article 311 is only attracted when the action being taken against a public officer is in the nature of a ‘punishment’ (¶29). Rule 135 is not covered by the scope of Article 311, as the order of compulsory retirement on grounds of ‘exposure’ did not entail any “charge, stigma or imputation” against the appellant (¶32). The Court further held, in reliance upon the Delhi High Court decision, that the order of compulsory retirement was not mala fide as it was justified on grounds of public interest (¶49) and that there is a presumption of “constitutional trust” in offices such as that of the PMO (¶57).

Additionally, the appellant’s prayer for amending the CCS (CCA) Rules, 1965, to provide adequate representation to sexual harassment complainants, was dismissed on the ground that it would infringe ‘separation of powers’ (¶94). This is even though the Court has, on previous occasion, directed the amendment of service rules and standing orders to give effect to the Vishakha guidelines (Medha Kotwal Lele v. Union of India, (2013) 1 SCC 311).

Therefore though the Court adopts a progressive understanding of sexual harassment while awarding compensation to the appellant, it sticks to the traditional gender-blind legal positivist perspective while upholding her retirement. The Court’s analysis fails to account for how transfers/premature retirements are frequently used as retaliatory tools in sexual harassment cases. Hence these can amount to ‘punishment’ so as to attract the application of Article 311. This is even though the decision notes that a ‘preliminary inquiry’ commencing 8.8.2008 (which is prior to the PMO Incident) had been conducted against the appellant on grounds that she was indulging in ‘misbehaviour’ and ‘unauthorized contact’ with the media. The Court observes that this inquiry indicates that the retirement order was not without application of mind (¶55). If that is so, then a certain level of ‘stigma’ was certainly sought to be attributed to the appellant. In this regard, the CAT order does a better job of analyzing how Rule 135 was ‘weaponized’, by noting that the reports recommending the appellant’s retirement may have been prepared by persons unfriendly to her (Nisha Priya Bhatia v. Secretary (PG & Coordination), Cabinet Secretariat, 2010 SCC OnLine CAT 549, ¶20-23).

It can be argued that from an intelligence organization’s perspective it seems perfectly rational to terminate the appellant’s services following such a highly controversial chain of events. However the conduct of the preliminary inquiry, along with the PMO’s press release, reveals a concerted effort to depict the appellant as a stereotypical hysterical/deluded female complainant, not a senior intelligence officer who was so traumatized by her hostile work environment that she was willing to set aside her repute (to the extent of stripping in court) and risk ‘exposure’ to bring attention to her cause. The fact that the appellant has borne such immense economic and psychological costs for bringing action against her employers, and their attempts to discredit her reputation, should prima facie have been interpreted as erasing any “constitutional trust” vested in them and prompted a more critical inquiry into their motivations for retiring her. Instead, the Court has effectively ‘settled’ the matter by awarding the appellant monetary compensation, which hardly corresponds to the loss of employment opportunity and the stigma of premature retirement.

Further, ¶99 of the decision notes that it was only after the PMO Incident that the sexual harassment inquiry was delegated to the External Committee, which ultimately found that there was gross violation of the Vishakha guidelines. The complete chronology of events (given in ¶53) strongly indicates that the appellant’s ‘exposure’ was a condition precedent to ‘exposing’ her hostile work environment. Upholding the appellant’s retirement effectively means that any female RAW officer who is sexually harassed by a superior would find herself in the catch-22 of either staying silent, or risking ‘exposure’ and losing her employment.

Pertinently, even in more conventional workplaces, Section 16 of POSH imposes a strict confidentiality requirement with respect to ICC proceedings. This is including the identity of the respondent therein, though information may be disseminated regarding ‘justice secured’ to a victim. Though this is presumably meant to safeguard the victim from stigma, it ties in with a general neo-liberal regulatory framework which ensures that workplaces can function without the hiccup of the inconvenience and disrepute caused by female labourers’ complaints.

If the Court had noted how sexual harassment is an institutional malaise as the starting point of its analysis, then perhaps the verdict on the compulsory retirement order would have been different. However, as the very first paragraph notes, the crux of the decision’s legal analysis is ultimately about maintaining the balance between the “security of a State organization” and the “individual interest of a person employed thereat as an intelligence officer”, not on holding the State responsible for ensuring safe working conditions for women. In this way labor rights jurisprudence treats sexual harassment at the workplace as the problem of the individual woman concerned, to be resolved discretely between her and her employer, rather than an employment discrimination problem for which the workplace is actively culpable.

As I write this, it is probable that labor laws in many states, if not nation-wide, will be suspended to facilitate industrial growth post the COVID-19 lockdown. This is even though the general negative economic impact of the pandemic is bound to exacerbate hostile work environments by forcing women trapped in financially precarious situations (particularly migrants and domestic workers) to submit to prejudicial and degrading conditions in exchange for work. Social distancing norms are likely to make workplaces prioritize the conduct of sexual harassment inquiries even lesser than they already do, though technology may be used to ease logistical difficulties. In such a situation it is all the more important that the State takes cognizance of preventing sexual harassment at the workplace as part of its constitutional obligation to ensure dignified working conditions, rather than just another brick in the wall of ‘crimes against women’.

All views expressed in the essay are personal.