CHAPTER – VI

SEXUAL HARASSMENT : JUDICIAL EXPOSITION – CRITICAL

ANALYSIS OF JUDICIAL DECISIONS IN SEXUAL
HARASSMENT CASES

The judiciary plays a significant role in the interpretation of the provisions of the
law and bridging the lacunae in the existing law of the land as well as filling the void in
the area hitherto left unattended by the legislatures. This is in consonance with the
object to achieve social purpose. Thus, judicial decisions serve as the beacon light for
the society and the judiciary through its constructive interpretation of statutes
strengthens the determination of rule of law in a country. Therefore, independence of
judiciary is an essential requirement of democratic set up because it acts as the
custodian and guarantor of the rights of the people. The judicial decisions reflect the
social conscience of the society because they reflect the conceptualization of the
different provisions of law, socio - cultural considerations, the perceptions, belief, faith,
temperament, attitude, likes, dislikes, social sensitisation and own life experiences of
the judges.

In case of administration of criminal justice, depending on the judge’s

perception of what is reasonable or unreasonable, an accused may be convicted/
acquitted, his/her punishment reduced/ increased. Thus reasonableness of the behavior
of the accused and victims at and around the time of offence plays an important role in
determining the guilt of the accused and the quantum of punishment1. Sometimes the
judges consider delay in reporting2 and sometimes expects the victim to take more
time in reporting the matter in sexual assault cases3 to award lesser punishment to the

1
Ved Kumari, “Gender analysis of the Indian Penal Code”, in Amita Dhanda and Archana Parashar
(ed.) Engendering – Essays in Honour of Lotika Sarkar , p. 155 (1999) Eastern Book Company,
Lucknow.
2 In State of Haryana v Prem Chand (1990) 1 SCC 249: 1990 SCC (Cri) 93 , the judges gave less
than the mandatory punishment because of the victim’s conduct in reporting the rape five days
later.
3 In Bhanwari Devi case the Sessions Judge acquitted the accused on the ground that immediate
report of the victim of the rape ,straight to the police without first informing her in- laws was
unnatural.

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accused. The influence of reasonable man is so profound that even while dealing with
offences against women, judges are inclined to fall back on this yardstick for evaluating
the conduct of the victim and the accused. It becomes clear when one examines the
question of determination of consent of a rape victim.4 Sometimes the sexuality of the
victim is considered as responsible for the sexual assault5 and sometimes the past sexual
history or character of the victim is taken into consideration for the determination of the
guilt of the accused.

In India the judiciary has always been portrayed as a symbol of justice assuring
the oppressed and the under privileged in society of equality before law. But experience
shows that this is not always true and that at times judges do discriminate between men
and women and consciously and unconsciously reflect traditional and rigid attitudes
towards them as they themselves are raised in male supremist tradition. Equally
understood and defined in terms of women’s experience is absent in all thinking,
including judicial adjudication. The conservative nature of judicial decision making in
India uses customs and traditions constantly as an argument and more so in the case of
a woman even when those same traditions and customs are violating legally defined
rights of a woman.6 In cases of sexual assault relating to women, judgments reveal a
deep rooted gender bias in the judiciary which has found expressions in many ways,
with judges making harsh, disparaging and unwarranted remarks against women,
believing the accused while disbelieving the victim and at times being more
sympathetic to the accused than the victim7. Therefore, gender sensitive judge can play
a more proactive role in providing justice to the women by appreciating the evidence
keeping in view the prevalent gender prejudices and stereotypes on the one hand and
sensitivity of the victim on the other hand. The judicial attitude concerning women has
not developed spontaneously but is a result of constant endeavour of the socially

4 K N Chandrasekharan Pillai, “Women and Criminal Procedure”, in supra note 1 at 161.

5 In Raju v. State of Karnataka (1995) I SCC 453: 1994 SCC(Cri) 538, The Supreme Court reduced
the sentence from seven to three years by holding that the victim had agreed to sleep in the same
room with the accused and the young accused were overpowered by lust during the course of the
night. The victim was to be responsible not just for her own but for their sexuality as well.
6 Lina Gonsalves, Women and Human Rights, p. 9 (2001) A.P.H. Publishing Corporation, New
Delhi.
7 Saroj Iyer, The Struggle To be Human- Women’s Human Rights, p. 75 (1999) Books for Change,
Bangalore.

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sensitised judges in remedifying the injustices meted out to the women in the society.
Initially the judiciary applied the statutory provisions concerning the plight of the
women i.e. outraging or insulting the modesty of women, rape, obscenity etc. However,
as extremely miniscule number of cases relating to sexual harassment of women at
workplace have reached upto Supreme Court, inference can be drawn that this can be
attributed to the lack of reporting at the initial level due to the ambiguities regarding the
definition of sexual harassment and lack of societal awareness to perceive sexual
harassment as grave violation of women’s human rights. An analysis of following
decisions of the courts depicts the obstacles in the conceptualization, formulation and
recognition of the ‘sexual assault’ as the ‘sexual harassment ’ and subsequent evolution
of the concept of sexual harassment being not only an offence against the woman body
but a systematized discrimination on the basis of sex.

In State of Punjab v. Major Singh8, the accused caused injury to the vagina of a
female child of seven and half months by finger. The Sessions Judge and two of the
three learned judges of the High Court who heard the appeal against the decision of the
Sessions Judge opined that a child of seven and a half months old being incapable of
having a developed sense of modesty, the offence was not punishable under Section 354
of IPC. The third Judge Gurdev Singh J, however, took a different view. He quoted the
meaning of the word modesty given in the Oxford English Dictionary (1933 ed.) which
is, womanly propriety of behavior , scrupulous chastity of thought, speech and conduct
(in men or women), reserve or sense of shame proceeding from instinctive aversion to
impure or coarse suggestions and observed: “this obviously does not refer to a particular
woman but to the accepted notions of womanly behavior and conduct, it is in this sense
that the modesty appears to have been used in Section 354 of the IPC. The learned
Judge then referred to Section 509 of the Penal Code which also uses the word modesty
and said:

“ the object of this provision seems to have been to protect women against
indecent behaviour of others which is offensive to morality. The offences created by
Section 354 and Section 509 of the IPC are as much in the interest of the woman

8 AIR 1967 SC 63

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concerned as in the interest of public morality and decent behavior. These offences are
not only offences against the individual but against public morals and society as well,
and that object can be achieved only if the word modesty is considered to be an attribute
of a human female irrespective of fact whether the female concerned has developed
enough understanding as to appreciate the nature of the act or to realize that it is
offensive to decent female behavior or sense of propriety concerning the relations of a
female with others”.9

S.B. Capoor J, one of the other two judges, on the other hand referred with
approval to the following passage from the judgment of Jack, J in Soko v Emperor10:

“Under Section 354 it must be shown that the assault was made intending to
outrage or knowing it to be likely to outrage the modesty of the girl. It is urged for the
petitioner that the conduct of the girl shows that in fact her modesty was not outraged.
There is no suggestion that she had any hesitation in telling her mother exactly what had
happened. In the circumstances, I think that it is, therefore, doubtful whether in fact the
modesty of the girl was outraged”.

He also referred to two other decisions in Mt. Chanpa Pasin v. Emperor11 and
Girdhar Gopal v. State12 and took the view that the authorities do not support the view
that in construing Section 354 IPC it is irrelevant to consider the age, physical condition
or the subjective element of the woman against whom the assault has been committed or
the criminal force used.
The third judge Mehar Singh J, while referring the case to a larger bench, quoted
the following passage from Dr. Gour’s Penal Law of India13:

“Ordinarily, the women who are likely to be made victims of this offence are
those who are young and who are old enough to feel the sense of modesty and the effect

9 Id.. at p. 66 para 12 per Mudholkar, J

10 AIR 1933 Cal. 142
11 AIR 1928 Pat. 326
12 AIR 1953 Madh. Bh. 147
13 7th Ed. Vol. 3 p. 1744

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of the acts directed against it. But it does not deprive others of the protection from the
license of man, provided their sense of modesty is sufficiently developed”.

He also observed that the opinion of the learned author tends to agree with the
dictum of Jack J, in Soko’s case14. The majority of the judges in the High Court held
that the words outrage her modesty showed that there must be a subjective element so
far as the woman against whom criminal force was used is concerned. They were of the
view that the offence could be said to have been committed only when the woman felt
that her modesty had been outraged. Thus they opined that the test of outraging of
modesty was the reaction of the woman concerned. These judges answered the question
in negative in the view that the woman to whom the force was used was of too tender
an age and was physically incapable of having any sense of modesty.15

However, Sarkar,CJ of the Supreme Court said that the offence under Section
354 of IPC does not depend on the reaction of the woman subjected to the assault or use
of criminal force. The words used in the Section are that the act has to be done intending
to outrage or knowing it to be likely that he will thereby outrage her modesty. This
intention or knowledge is the ingredient of the offence and not the woman’s feelings. It
would follow that if the intention or knowledge was not proved, proof of the fact that
the woman felt that her modesty had been outraged would not satisfy the necessary
ingredient of the offence. Likewise if the intention or knowledge was proved, the fact
that the woman did not feel that her modesty has been outraged would be irrelevant, for
the necessary ingredient would then have been proved. The sense of modesty in all
women is of course not the same; it varies from woman to woman. In many cases, the
woman’s sense of modesty would not be known to others. If the test of the offence was
the reaction of the woman, then it would have to be proved that the offender knew that
standard of the modesty of the woman concerned, as otherwise, it could not be proved
that he had intended to outrage her modesty or knew it to be likely that his act would
have that effect. This would be impossible to prove in the large majority of cases. Hence
in the opinion of Sarkar CJ, the reaction of the woman would be irrelevant.16

14 AIR 1933 Cal. 142

15 State of Punjab v. Major Singh AIR 1967 SC 63 at p. 64 para 3 per A.K. Sarkar, CJ
16 Id.. at pp. 64-65 para 4

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Sarkar CJ, further said, “intention and knowledge are of course states of mind.
They are nonetheless facts which can be proved. They cannot be proved by direct
evidence. They have to be inferred from the circumstances of each case. Such an
inference, one way or the other, can only be made if a reasonable man would, on the
facts of the case, make it. The question in each case must , in my opinion, be : will a
reasonable man think that the act was done with the intention of outraging the modesty
of the woman or with the knowledge that it was likely to do so? The test of the outrage
of modesty must, therefore, be whether a reasonable man will think that the act of the
offender was intended to or was known to be likely to outrage the modesty of the
woman. In considering the question, he must imagine the woman to be a reasonable
woman and keep in view all circumstances concerning her, such as, her station and way
of life and the known notions of modesty of such a woman. The expression, outrage her
modesty must be read with the words ‘intending to or knowing it to be likely that he
will’. So read, it would appear that though the modesty to be considered is of the
woman concerned, the word her was not used to indicate her reaction. Read all together,
the words indicate an act done with the intention or knowledge that it was likely to
outrage the woman’s modesty, the emphasis being on the intention and knowledge.”17

Sarkar, CJ considered the view of Gurdev Singh, J as erroneous that modesty in

Section 354 has to be understood as an attribute of a human female irrespective of the
fact whether she has developed a sense of modesty or not. In the view of sarkar CJ, “in
order that a reasonable man may think that an act was intended or must be taken to have
been known likely to outrage modesty, he has to consider whether the woman
concerned had developed a sense of modesty and also the standard of that modesty.
Without an idea of these, he cannot decide whether the alleged offender intended to
outrage the woman’s modesty or his act was likely to do so.” He did not agree with the
view of Gurdev Singh J, that such a view would defeat the object of the Section.
Referring to Gurdev Singh, J’s observation that modesty had to be judged by the
prevalent notions of modesty, Sarkar CJ said ,“if this is so, it will also have to be
decided what the prevalent notions of modesty in the society are. As such notions

17 Id.. at p. 65 para 5

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concerning a child may be different from those concerning a woman of mature age,
these notions have to be decided in each case separately. To say that every female of
whatever age is possessed of modesty capable of being outraged seems to me to be
laying down too rigid a rule which may be divorced from reality. There obviously is no
universal standard of modesty.” Sarkar CJ, further said ,“if my reading of the section is
correct, the question that remains to be decided is , whether a reasonable man would
think that the female child on whom the offence was committed had modesty which the
respondent intended to outrage by his act or knew it to be the likely result of it.”

He further opined that a reasonable man could not say that a female child of
seven and a half months is possessed of womanly modesty. If she had not, there could
be no question of the respondent having intended to outrage her modesty or having
known that his act was likely to have that result, therefore, Sarkar CJ , answered the
question in negative.18

Before the Supreme Court, instances of various types of women were mentioned
such as imbecile woman, a sleeping woman who does not wake up, a woman under the
influence of drink or anaesthesia, an old woman, and the like. While pointing out that in
this case the Court was not concerned with any such woman, Sarkar CJ, found no
difficulty in applying the test of the outrage of modesty that he had indicated to any of
these cases. He further said, “if it is proved that criminal force was used on a sleeping
woman with intent to outrage her modesty, then the fact that she does not wake up nor
feel that her modesty had been outraged would be no defence to the person doing the
act. The woman’s reaction would be irrelevant in deciding the question of guilt”.19

However, the other two judges of the Supreme Court held the respondent guilty
of committing offence under Section 354 IPC. Mudholkar, J, said20 that Section 354 at

18 Id.. at p. 65 paras 7 & 8

19 Id.. at pp. 65-66 para 9
20 Id.. at p. 67 para 13 Mudholkar J. saId. after comparing sec. 14 of the Sexual Offences Act, 1956
enacted by the British Parliament and sec. 354 of IPC.

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first blush seems to require that the outrage must be felt by the victim herself. But such
an interpretation would leave out of the purview of the Section, assaults , not only on
girls of tender age but on even grown up women when such a woman is sleeping and
did not wake up or is under anaesthesia or stupor or is an idiot or under certain
circumstances, exclude a case where the woman is of depraved moral character.
Mudholkar J, asked, “could it be said that the legislature intended that the doing of an
act to or in the presence of any woman which according to the common notions of
mankind is suggestive of sex, would be outside this Section unless the woman herself
felt that it outraged her modesty ? Again, if the sole test to be applied were the woman’s
reaction to a particular act, would it not be a variable test depending upon the sensitivity
or the upbringing of the woman?” Mudholkar J, said, “ these considerations impel me to
reject the test of a woman’s individual reaction to the act of the accused, must, however,
confess that it would not be easy to lay down a comprehensive test, but about this much
I feel no difficulty. In my judgment when any act done to or in the presence of a
woman is clearly suggestive of sex according to the common notions of mankind, that
act must fall within the mischief of this Section.21 He declined to consider what other
kind of acts would also fall within it, as this was not a matter for consideration in this
case. Mudholkar J, was of the view that in this case the action of Major Singh in
interfering with the vagina of the child was deliberate and must be deemed to have
intended to outrage her modesty.22

Concurring with the order proposed by Mudholkar J, the third judge of the
Supreme Court, Bachawat, J, expressed the view that the essence of woman’s modesty
is her sex. He further said, “The modesty of an adult female is writ large on her body.
Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty
capable of being outraged. Whoever uses criminal force to her with intent to outrage her
modesty commits an offence punishable under Section 354. The culpable intention is
the crux of the matter. The reaction of the woman is very relevant, but its absence is not
always decisive as for example, when the accused with a corrupt mind stealthily touches

21 IbId.
22 Id.. at p. 67 para 14 Madholkar J. allowed the appeal and altered the conviction of the respondent
to one under section 354 IPC and awarded him rigorous imprisonment for a period of 2 years and a
fine of Rs 1000/- and in default rigrous imprisonment for a period of 6 months and out of the fine
Rs 500 to be paid as compensation to the child.

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the flesh of a sleeping woman. She may be an idiot, she may be under the spell of
anaesthesia, she may be sleeping, she may be unable to appreciate the significance of
the act, and nevertheless, the offender is punishable under the Section.”23

Bachawat, J, further said, though a female of tender age stands on a somewhat

different footing as her body is immature and sexual powers are dormant. In this case,
the victim is a baby of seven and half months old and had not yet developed a sense of
shame and had no awareness of sex. Nevertheless from her very birth she possessed the
modesty which is attribute of her sex. Bachawat, J, concluded that the respondent
outraged and intended to outrage whatever modesty the little victim was possessed of
and as such was punishable for the offence under Section 354 of IPC.24

The Court convicted the accused for outraging the modesty of the baby and
punished him with rigorous imprisonment of 2 years and a fine of Rs. 1000 and in
default rigorous imprisonment for a period of 6 months. The Court directed that out of
the fine amount, Rs. 500 would be paid as compensation to the child.

In this case the opinion expressed by different judges reveals that judicial mind
is also strongly influenced by the archaic definition of modesty, the conventional
stereotype woman and the reasonable person standard in the determination of culpable
intention on the part of the accused.

In State of Maharashtra v. Chandraprakash Kewalchand Jain25, Mohmmad Shafi

aged 25 years contracted a marriage through Kazi with Shamimbanu aged about 19
years at Bombay against the wishes of their parents. Then they returned to Nagpur, their

23 Id.. at p. 68 para 16
24 Id.. at p. 68 para 17 Bachawat J. found this to be a rare case where the respondent used criminal
force to an infant girl for satisfying his lust. In this indecent posture the respondent gives vent to
his unnatural lust and in the process ruptures the hymen and causes a tear ¾” long inside her
vagina and thus outraged and intended to outrage the modesty of little victim.
25 AIR 1990 SC 658

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hometown and went to a lodge and occupied a room on 20th August 1981. On next night
between 21st and 22nd August 1981, the respondent accused Chandraprakash
Kewalchand Jain, a Sub- Inspector of Police, entered the hotel, questioned them and
asked them to accompany him to the police station. On reaching the police station, the
respondent separated the couple, flirted with girl and slapped her when she refused to
respond to his flirtation and demanded that she spend the night with him. On her
refusing and protesting against his behavior, he threatened her with dire consequences.
Mohmmad Shafi was also subjected to beating by the constable. The parents of both
boy and girl were called but they refused to take them back home. Then Mohmmad
Shafi was charged under Sections 110 and 117 of the Bombay Police Act, on the ground
of misbehaving on a public street, uttering filthy abuses, and he was put up in the lock
up. The girl was sent to another hotel alongwith constable. On 22nd August 1981 the
respondent accused committed rape on the girl twice. Then Mohmmad Shafi after being
produced in court was released on bail. Shamimbanu narrated the incident to Mohmmad
Shafi who lodged FIR in the police station. The trial court found the accused guilty of
rape but the High Court acquitted the accused. The High Court took the view that
except in the ‘rarest of rare cases’ where the testimony of the prosecutrix is found to be
so trustworthy, truthful and reliable that no corroboration is necessary, the court should
ordinarily look for corroboration. The Supreme Court reversed the decision of the
Bombay High Court and held:

“A prosecutrix of a sex offence cannot be put on par with an accomplice. She is

in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot
be accepted unless it is corroborated in material particulars. She is undoubtedly a
competent witness under Section 118 of Evidence Act and her evidence must receive
the same weight as is attached to an injured in cases of physical violence. The same
degree of care and caution must attach in the evaluation of her evidence as in the case of
injured complainant or witness and no more. What is necessary is that the court must be
alive to and conscious of the fact that it is dealing with the evidence of a person who is
interested in the outcome of the charge levelled by her. If the court keeps this in mind
and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of
law or practice incorporated in the Evidence Act similar to illustration (b) to section 114
which requires it to look for corroboration. If for some reason the court is hesitant to

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place implicit reliance on the testimony of the prosecutrix it may look for evidence
which may lend assurance to her testimony short of corroboration required in the case of
an accomplice. The nature of evidence required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts and circumstances of each case. But if
a prosecutrix is an adult and of full understanding the court is entitled to base a
conviction on her evidence unless the same is shown to be infirm and not trustworthy. If
the totality of the circumstances appearing on the record of the case disclose that the
prosecutrix does not have a strong motive to falsely involve the person charged, the
court should ordinarily have no hesitation in accepting her evidence26.” The court
further observed:

To insist on corroboration except in the rarest of rare cases is to equate a woman

who is a victim of the lust of another with an accomplice to a crime and thereby
insult womanhood. Ours is a conservative society where it concerns sexual
behaviour. Ours is not a permissive society as in some of the Western and
European countries. Our standard of decency and morality in public life is not the
same as in those countries. It is, however, unfortunate that respect for
womanhood in our country is on the decline and cases of molestation and rape are
steadily growing. An Indian woman is now required to suffer indignities in
different forms, from lewd remarks to eve-teasing, from molestation to rape.
Decency and morality in public life can be promoted and protected only if the
courts deal strictly with those who violate the society norms. The standard of
proof to be expected by the court in such cases must be to take into account the
fact that such crimes are generally committed on the sly and very rarely direct
evidence of a person other than the prosecutrix is available27.

The Supreme Court expressed that when such a crime is committed by a person in
authority, e.g. a police officer, the court’s approach should not be the same as in any
other case involving a private citizen. A person in authority such as a police officer,
carries with him the awe of office which is bound to condition the behaviour of his

26 Id.., p. 664 para 16

27 Id.., pp. 664-65, para 17

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victim. The court must not be oblivious of the emotional turmoil and the psychological
injury that a prosecutrix suffers on being molested or raped. She suffers a tremendous
sense of shame and the fear of being shunned by society and her near relatives,
including her husband. Instead of treating her with compassion and understanding as
one who is an injured victim of a crime, she is, more often than not treated as a sinner
and shunned. It must, therefore, be realised that a woman who is subjected to sex
violence would always be slow and hesitant about disclosing her plight. The court must,
therefore, evaluate her evidence in the above background28. Thus the Supreme Court
held that these cases require an exemplary punishment and so restored the punishment
of five years’ rigorous imprisonment as provided by the trial court. The observation of
the Supreme Court further reveals the hesitations of the women in reporting the matter
and the trauma being faced when sexual assault is committed by the person in uniform.
However, the attitude of the High Court in evaluating evidence shows how a gross
injustice could be done by the judicial pronouncement. Thus, the Supreme Court
expressed great concern regarding offences against women.

In State of Punjab v. Gurmit Singh29, the prosecutrix, a young village girl below
16 years of age and a student of 10th class while going to the house of her maternal
uncle after taking her examination was forcibly abducted by four persons in a car on
30th March 1984 at about 12.30 p.m. Driver of the car, after leaving the prosecutrix and
the three accused persons at the tubewell of Ranjit Singh one of the accused, went away
with the car. She was taken to the ‘kotha’ of the tubwell where Gurmit Sing, the
accused compelled her to consume liquor and them committed rape on her. Then other
two accused Jagjit Singh and Ranjit Singh also committed rape on her. They all
subjected the prosecutrix to sexual intercourse once again during the night against her
will. Then next day morning, they again left her in the same car near the boys High
School Pakhowal near about the place from where she had been abducted. Then after
taking her examination in the school, she reached her village at about noon time and
narrated the entire story to her mother, who narrated the same to her father. Her father

28 Id.., p. 665 para 18. The SC also put reliance on provision of sections 47(2), 53 & 160 of CrPC
which reflect the concerns of the legislature to prevent harassment and exploitation of women and
preserve their dignity.
29 AIR 1996 SC 1393

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straightway contacted the ‘sarpanch’ who tried to affect a compromise on 1-4-1984 but
since the ‘panchyat’ could not give any justice or relief to the prosecutrix, she along
with her father went to the police station and lodged an FIR.

The trial court acquitted all the accused persons. On appeal30 to the Supreme
Court, a Division Bench of the Supreme Court comprising Dr. A.S. Anand and S.Saghir
Ahmad JJ, expressed that the judgment of the trial court presents rather disquieting and
a disturbing feature i.e. lack of sensitivity on the part of the trial court by casting
unjustified stigmas on a prosecutrix aged below 16 years in rape case by overlooking
human psychology and behavioural probabilities. The Supreme Court observed: “ an
intrinsically wrong approach while appreciating the testimonial potency of the evidence
of the prosecutrix has resulted in miscarriage of Justice31.” The Supreme Court
expressed that the grounds on which the trial court disbelieved the version of the
prosecutrix were not at all sound and its findings rebelled against realism and lost their
sanctity and credibility. While appreciating the evidence, the trial court lost sight of the
fact that the prosecutrix was a village girl and a student of tenth class. It was wholly
irrelevant and immaterial that she was ignorant of the difference between a Fiat, an
Ambassador, or a Master car. Further, merely because at the trial stage she did not
remember the colour of the car, though she had given the colour of the car in the FIR,
could not have material effect on the reliability of her testimony. No fault could also be
found with the prosecution version on the ground that the prosecutrix had not raised an
alarm while being abducted. The prosecutrix in her statement categorically asserted that
as soon as she was pushed inside the car she was threatened by the accused to keep
quiet and not to raise any alarm otherwise she would be killed. Under these
circumstances, to discredit the prosecutrix for not raising an alarm while the car was
passing through the Bus ‘adda’ is travesty of justice. The trial court overlooked the
situation in which a poor helpless minor girl had found herself in the company of three
desperated young men who were threatening her and preventing her from raising any
alarm. Again if the investigating officer did not conduct the investigation properly or
was negligent in not being able to trace out the driver of the car, that could not be a

30 This appeal under section 14 of the Terrorist Affected Areas( Special Courts) Act, 1948 is directed
against the judgment and order of additional judge, special court Ludhiana.
31 State of Punjab v. Gurmit Singh AIR 1996 SC 1393 at 1396 para 1

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ground to discredit the testimony of the prosecutirix. The prosecutrix had no control
over the investigating agency and the negligence of an investigating officer could not
affect the credibility of the statement of the prosecutrix on the ground of delay in
lodging the FIR. In the opinion of the Supreme Court, there was no such delay and if at
all, there was some delay the same had been properly explained by the prosecution and
was also natural. The courts cannot overlook the fact that in sexual offences, delay in
the lodging of the FIR can be due to variety of reasons particularly the reluctance of the
prosecutrix or her family members to go to the police and complain about the incident
which concerns the reputation of the prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of sexual offence is generally lodged. The
Supreme Court criticized the trial court for doubting the testimony of the victim on the
ground that she did not complain to her lady teachers and friends whom she met after
the incident and waited till she went home and narrated the incident to her mother. The
conduct of the prosecutrix in this regard appears to the Supreme Court to be most
natural. The trial court overlooked that a girl, in a tradition bound non permissive
society in India, would be exteremly reluctant even to admit that any incident which is
likely to reflect upon her chastity had occurred, being conscious of the danger of being
ostracized by the society or being looked done by the society. Her not informing the
teachers or her friends at the examination centre under the circumstances cannot detract
from her reliability. In the normal course of human conduct this unmarried minor girl,
would not like to give publicity to the traumatic experience she had under gone and
would feel terribly embarrassed in relation to the incident to narrate it to her teachers
and others overpowered by a feeling of shame and her natural inclination would be to
avoid talking about it to anyone, lest the family name and honour is brought into
controversy. Therefore, her informing her mother only on return to the parental house
and none else prior thereto is in accord with the natural human conduct of a female32.

32 Id.. at 1399-1400 para 7

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The Supreme Court further held:

The courts must, while evaluating evidence, remain alive to the fact that in
a case of rape, no self respecting woman would come forward in a court just to
make a humiliating statement of her honour such as is involved in the commission
of rape on her. In cases involving sexual molestation, supposed considerations
which have no material effect on the veracity of the prosecution case or even
discrepancies in the statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be allowed to throw an otherwise
reliable prosecution case. The inherent bashfulness of the female and the
tendency to conceal outrage of sexual aggression are factors which the courts
should not overlook. The testimony of the victims in such cases is vital and unless
there are compelling reasons which necessitate looking for corroboration of her
statement, the courts should find no difficulty to act on the testimony of a victim
of sexual assault alone to convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking corroboration of her statement
before relying upon the same, as a rule, in such cases amounts to adding insult to
injury. Why should the evidence of a girl or a woman, who complains of rape or
sexual molestation, be viewed with doubt, disbelief or suspicion? The court while
appreciating the evidence of a prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience, since she is a witness who is interested
in the outcome of the charge levelled by her, but there is no requirement of law to
insist upon corroboration of her statement to base conviction of an accused. The
evidence of a victim of sexual assault stands almost at par with the evidence of an
injured witness and to an extent is even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is not found to be self inflicted, is
considered to be a good witness in the sense that he is least likely to shield the
real culprit, the evidence of a victim of a sexual offence is entitled to great
weight, absence of corroboration notwithstanding. Corroborative evidence is not
an imperative component of judicial credence in every case of rape.
Corroboration as a condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of prudence under given
circumstances. It must not be overlooked that a woman or a girl subjected to
sexual assault is not an accomplice to the crime but is a victim of another person’s

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lust and it is improper and undesirable to test her evidence with a certain amount
of suspicion, treating her as if she were an accomplice. Inferences have to be
drawn from a given set of facts and circumstances with realistic diversity and not
dead uniformity lest that type of rigidity in the shape of rule of law is introduced
through a new form of testimonial tyranny making justice a casualty. Courts
cannot cling to a fossil formula and insist upon corroboration even if, taken as a
whole, the case spoken of by the victim of sex crime strikes the judicial mind as
probable33.”

Thus the Supreme Court held that the trial court not only erroneously
disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterized
her as a girl of ‘loose morals’ or ‘such type’ of a girl34. What has shocked the judicial
conscience of the Supreme Court all the more was the inference drawn by the trial court
on no evidence and not even on a denied suggestion to the effect, “the more probability
is that prosecutrix was a girl of loose character. She wanted to dupe her parents and that
she resided for one right at the house of her maternal uncle, but for the reasons best
known to her, she does not do so and she preferred to give company to some persons35.”
The Supreme Court further said:

“We must express our strong disapproval of the approach of the trial court and
its casting a stigma on the character of the prosecutrix. The observations lack sobriety
expected of a judge. Such like stigmas have the potential of not only discouraging an
even otherwise reluctant victim of sexual assault to bring forth complaint for trial of
criminals, thereby making the society to suffer by letting the criminal escape even a
trial. The courts are expected to use self restraint while recording such findings which
have longer repercussions so for as the future of the victim of the sex crime is concerned
and even wider implications on the society as a whole -where the victim of crime is
discouraged -the criminal encouraged and in turn crime gets rewarded. Even in cases,

33 Id. .at 1400 para 7. The SC also referred the decision of the SC in State of Maharashtra v
Chandraprakash Kewal Chand Jain AIR 1990 SC 658 at 664 para 16 to the effect that a prosecutrix
of a sex offence cannot be put on per with an accomplice.
34 Id.. at 1403 para 13
35 Id.. para 14

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unlike the present case, where there is some acceptable material on the record to show
that the victim was habituated to sexual intercourse, no such inference like the victim
being a girl of loose moral character is permissible to be drawn from that circumstance
alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual
behavior earlier, she has a right to refuse to submit herself to sexual intercourse to
anyone and everyone because she is not a vulnerable object or prey for being sexually
assaulted by anyone and everyone. No stigma like the one as cast in the present case
should be cast against such a witness by the courts, for after all it is the accused and not
the victim of sex crimes who is on trial in the court36”. The Supreme Court further
expressed:

……Crimes against women in general and rape in particular is on the increase. It

is an irony that while we’re celebrating women’s rights in all spheres, we show
little or no concern for her honour. It is a sad reflection on the attitude of
indifference of the society towards the violation of human dignity of the victims
of sex crimes, we must remember that a rapist not only violates the victim’s
privacy and personal integrity, but inevitably causes serious psychological as well
as physical harm in the process. Rape is not merely a physical assault- it is often
destructive of the whole personality of the victim. A murderer destroys the
physical body of his victim , a rapist degrades the very soul of the helpless
female. The court, therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such cases with utmost
sensitivity. The courts should examine the broader probabilities of a case and not
get swayed by minor contradictions of insignificant discrepancies in the statement
of the prosecutrix, which are not of a fatal nature, to throw out an otherwise
reliable prosecution case….37

The Supreme Court also took note of criticism of treatment of the victims of
sexual assault in the court during their cross-examination and observed, “ the provisions
of Evidence Act regarding relevancy of facts not withstanding some defence counsel

36 Id.. para 15
37 Id.. at 1404 para 20

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adopt the strategy of continual questioning of the prosecutrix as to the details of the
rape. The victim is required to repeat again and again the details of the rape incident not
so much as to bring out the facts on record or to test her credibility but to test her story
for inconsistencies with a view to attempt to twist the interpretation of events given by
her so as to make them appear inconsistent with her allegations. The court therefore,
should not sit as a silent spectator while the victim of crime is being cross examined by
the defence. It must affectively control the recording of evidence in the court. While
every latitude should be given to the accused to test the veracity of the prosecutrix and
the credibility of her version through cross examination, the court must also ensure that
cross examination is not made a means of harassment or causing humiliation to the
victim of crime. A victim of crime, it must be remembered, has already undergone a
traumatic experience and if she is made to repeat again and again in unfamiliar
surroundings, what she had been subjected to, she may be too shamed and even nervous
or confused to speak and her silence or a confused stray sentence may be wrongly
interpreted as ‘discrepancies and contradictions’ in her evidence.”38

Further the Supreme Court noted, “The alarming frequency of crimes against
women led the Parliament to enact Criminal Law (Amendment) Act, 1983 (Act 43 of
1983) to make the law of rape more realistic. By the Amendment Act, Sections 375 and
376 were amended and certain more penal provisions were incorporated for punishing
such custodians who molest a woman under their custody or care. Section 114 –A was
also added in the Evidence Act for drawing a conclusive presumption as to the absence
of consent in certain prosecutions for rape, involving such custodians. Section 327 of
the Code of Criminal Procedure which deals with the right of an accused to an open trial
was also amended by addition of sub sections (2) and (3) after renumbering the old
section as sub section (1)39. The Supreme Court observed,

38 Id.. at 1404-05 para 21

39 Id.. at 1405 para 22; Section 327 sub section (2) and (3) provId.es as follows:
Section 327 court to be open -
(2) Notwithstanding anything contained in sub section (1), the inquiry into and trial of rape or an
offence under section 376 section 376-A, section 376 B, section 376-C or section 776-D of the
Indian Penal code shall be conducted in camera:

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“These two provisions are in the nature of exception to the general rule of an open trial,
inspite of the amendment, however, it is seen that trial courts either are not conscious of
the amendment or do not realize its importance for hardly does one come across a case
where the enquiry and trial of a rape case has been conducted by the court in camera.
The expression that the inquiry into and trial of rape ‘shall be conducted in camera’ as
occurring in sub section (2) of section 327 Cr. PC is not only significant but very
important. It casts a duty on the court to conduct the trial of rape cases etc. invariably in
camera. The courts are obliged to act in furtherance of the intention expressed by the
Legislature and not to ignore its mandate and must invariably take recourse to the
provisions of Section 327 (2) and (3) Cr. PC and hold the trial of rape cases in camera.
It would enable the victim of crime to be a little comfortable and answer the questions
with greater ease in not too familiar a surroundings. Trial in camera would not only be
in keeping with the self respect of the victim of crime and in tune with the legislative
intent but is also likely to improve the quality of the evidence of a prosecutrix because
she would not be so hesitant or bashful to depose frankly as she may be in an open
court, under the gaze of public. The improved quality of her evidence would assist the
court in arriving at the truth and sifting truth from falsehood. The High Courts would
therefore, be well advised to draw the attention of the trial courts to the amended
provisions of Section 327 Cr.PC and impress upon the presiding officers to invariably
hold the trial of rape cases in camera…… . When trials are held in camera, it would not
be lawful for any person to print or publish any matter in relation to the proceedings in
the case, except with the previous permission of the court as envisaged by Section 327
(3) Cr.PC. This would save any further embarrassment being caused to the victim of sex
crime. Wherever possible it may also be worth considering whether it would not be
more desirable that the cases of sexual assault on the females are tried by lady judges,
wherever available, so that the prosecutrix can make her statement with greater ease and

Proved the presId.ing judge may, if he thinks fit, or on an application made by either of the parties,
allow any particular person to have access to or be or remain in, the room or building used by the
court
(3) Where any proceedings are hold under sub section (2) it shall not be lawful for any person to print
or publish any matter in relation to any such proceedings, except with the previous permission of
the court.

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assist the courts to properly discharge their duties, without allowing the truth to be
sacrificed at the altar of rigid technicalities while appreciating evidence in such cases.
The courts should, as far as possible, avoid disclosing the name of the prosecutrix in
their orders to save further embarrassment to the victim of sex crime. The anonymity of
the victim of the crime must be maintained as far as possible throughout ……. Trial of
rape cases in camera should be the rule and an open trial in such cases an exception.”40
The Supreme Court imposed a meager punishment of 5 years RI and a fine of Rs.
5000/- in this case of gang rape although the prescribed mandatory minimum
punishment is 10 years. The trial court in characterizing the victim of sexual assault as a
girl of loose character has shocked the conscience of the society on the one hand and
has the effect of discouraging the woman harassed from taking recourse to the legal
remedies for redressal of their grievances. This may have far reaching effect on the
safety and security of women in the society because when the accused get scot free due
to such interpretations by the courts, the women victim of sexual assault get
disheartened and dissuaded from approaching the law enforcement agencies. These
cases require the deterrent punishment.

In Madan Lal v. State of J&K41 on 21-5-1986 at about 9 a.m., a young girl

student of 13 years age alongwith two other girl students were sent by the head master
of the school, the accused to his residence for cooking his meal as the accused was
living without his family. Then the accused reached home between 10 a.m. and 11 a.m.
and directed the other two students to leave the house and detained the prosecutrix with
the understanding that she can leave the house after cleaning the utensils. Thereafter, the
accused subjected her to sexual harassment as he attempted to commit rape on her.

The trial court acquitted the accused on the ground that the case hinges on the
sole testimony of prosecutrix and statement of other two prosecution witnesses were
brushed aside on the ground of animosity and partisan character. On appeal, the division

40 Id.. at 1405-06 para 22.

41 AIR 1998 SC 386

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bench of the High Court42 reversed the order of acquittal and convicted the accused
under Section 376 read with Section 511, RPC for attempt to commit rape.

On appeal, the division bench of the Supreme Court held, “a young girl was
subjected to sexual harassment by her own headmaster inside a close room of that
headmaster and one can well imagine her trauma after being subjected to such sexual
harassment …. It must be remembered that no woman of honour will accuse another of
committing rape since she scarifies thereby what is dearest to her …. The learned
Sessions Judge discarded the evidence of the mother of the prosecutrix on the ground
that she was influenced by (two prosecution witnesses) who had an axe to grind against
the accused. It is indeed unthinkable that the mother, just to oblige her friends like those
witnesses would make serious allegations of sexual assault by the accused against her
daughter.”43 Thus the Supreme Court upheld the High Court’s judgment that set aside
the acquittal of the accused ordered by the trial court. This case reveals the situation
prevailing in the society where the person in authority and custodian of the students i.e.
teacher by misusing his authority diverts the attention of the taught by engaging them in
personal household chores and then also exploiting them in order to fulfill his lust. The
observation of the trial court reflects the social insensitivity of the judiciary which may
lead to grave injustice to the women in society.

In State of Rajasthan v. N.K44, the prosecutrix aged 15 years was a married

woman and was living with her parents according to a custom45 and was a virgin prior
to crime. On 1.10.1993 at about 12’00 noon while she was alone in her hut busy
washing clothes on a water pump, the accused N.K. forcibly pushed her to a secluded
place and committed rape on her. The prosecutrix reached back her home and narrated

42 Id.. at 388-389 para 4 and 6. The state contended before the High Court that the evId.ence of the
prosecutrix has to be appreciated bearing in mind that a young girl has been molested and
subjected to sexual assault by her own headmaster. In the absence of any animosity between the
prosecutrix and the accused , it is unimaginable that a young girl would subject herself to the
ignominy and embarrassment in the society by making such an allegation.
43 Id.. at 391 -392 para 9. See also Krishan Lal v. State of Haryana (1980) 3 SCC 159: AIR 1980 SC
1252.
44 AIR 2000 SC 1812
45 Muklana ceremony is a rural custom prevalent in Rajasthan, where under the brId.e is left with the
parents after marriage having been performed and is taken away by the husband and/ or the in laws
to live with them only after a lapse of time. The origin of the custom owes its existence to
performance of child marriages which are wId.ely prevalent there.

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the entire incident to a woman and to her father. The victim accompanied by her father
wanted to go to the police station and lodged the first information report of the incident
but they were prevented from doing so by several village people belonging to the
community of the accused who also proposed the matter being settled within the village
by convening a ‘panchayat’. And also that the incident if publicized may have been an
end of the marriage for the prosecutrix. However, the FIR was lodged on 5.10.1993 at
11.20 a.m. The trial court found the accused guilty of the offence of rape. However, in
appeal, the High Court set aside the conviction of the accused for the offence of rape. In
the opinion of the High Court, though the factum of the accused having committed
sexual intercourse with the prosecutrix was proved, but the absence of injuries on the
person of the prosecutrix was a material fact not excluding the possibility of the
prosecutrix having been a consenting party. A three Judge Bench of the Supreme Court
comprising Dr. A.S. Anand, R.C. Lahoti and S.N. Variava JJ, set aside the High Court’s
judgment. The Supreme Court took note that because of the delay in lodging FIR
(which was satisfactorily explained), there was delay in medical examination of the
prosecutrix. Also the prosecutrix was in her teens; while the accused was an able bodied
youth bustling with energy and determined to fulfill his lust armed with a knife in his
hand and having succeeded in forcefully removing the victim to a secluded place where
there was none around to help the prosecutrix in her defence. The injuries which the
prosecutrix suffered or might have suffered in defending herself and offering resistance
to the accused were abrasions or bruises which would heal up in the ordinary course of
nature within 2 to 3 days of the incident. Thus the absence of visible marks of the
injuries on the person of the prosecutrix on the date of her medical examination did not
necessarily mean that she did not suffer any injuries or that she offered no resistance at
the time of commission of the crime. Absence of injuries on the person of the
prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of
consent on the part of the prosecutrix. It will all depend on the facts and circumstances
of each case. A Judge of facts shall have to apply a common sense rule while testing the
reasonability of the prosecution case. The prosecutrix on account of age of infirmity or
overpowered by fear or force may have been incapable of offering any resistance. She
might have sustained injuries, but on account of lapse of time the injuries might have
healed and marks vanished. The victim of rape stating on oath that she was forcibly
subjected to sexual intercourse or that the act was done without her consent, has to be
believed and accepted like any other testimony unless these is material available to draw

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an inference as to her consent or else the testimony of prosecutrix is such as would be

inherently improbable. Based upon these observations, the Supreme Court was of the
opinion that the High Court has committed a clear error of law in interfering with the
judgment of the trial court regarding proof of guilt of the accused. Thus the High Court
gave benefit of doubt to the accused in such a heinous case of sexual assault on the
person of the minor married girl. Although this is not a direct case on sexual harassment
of women at workplace but the facts of the case reveal that how the societal pressures
can prevent the woman harassed from reporting the matter and taking recourse to the
legal remedy. Further, the attitudinal bias and gender insensitivity is reflected in the
judgment of the High Court in this case.

In Rupan Deol Bajaj v. K.P.S. Gill46, on 29th July 1988 Mrs. Rupan Deol Bajaj,
an officer of the Indian Administrative Service belonging to the Punjab cadre and then
working as the Special Secretary, Finance lodged a complaint with the Inspector
General of Police Chandigarh Union Territory alleging commission of offence under
Sections 341, 342,352,354 and 509 of the IPC by Mr. K.P.S Gill, the then Director
General of police, Punjab on July 18, 1988 at a dinner party. Treating that complaint as
the first information report (FIR), a case was registered by the central police station,
sector 17 Chandigarh and investigation was taken up. As per the FIR lodged, in the
evening of July 18, 1988 Mrs. Bajaj accompanied by her husband has gone to the
residence of Shri S.L.Kapur, a colleague of theirs, in response to an invitation for
dinner. Reaching there at or about 9 pm they found 20 to 25 couples present including
Mr. Gill who had come without his wife and some other senior Government officers
(named in the FIR). The party was arranged in the lawn at the back of the house and as
per tradition in Indian homes, the ladies were sitting segregated in a large semicircle and
the gentlemen in another large semicircle with the groups facing each other. The
complainant alleged:

“Around 10.00 p.m Dr. P.N. Chutani and shri K.P.S. Gill walked across to the
circle of the ladies and joined them occupying the only two vacant chairs available,

46 AIR 1996 SC 309

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almost on opposite sides of the semi circle. Shri K.P. S. Gill took a vacant chair about 5
to 6 chairs to the left of where I was sitting. Slowly, all the ladies sitting to the right and
left of him, got up, and started leaving and going into the house. I was talking to Mrs.
Bijlani and Mrs. K.P. Bhandari, sitting on my right, and did not notice or come to know,
that those ladies were getting up and vacating their chairs because he had misbehaved
with them.

Shri K.P.S. Gill called out to me where I was sitting and said “Mrs. Bajaj come
and sit here, I want to talk to you about something.” I got up from my chair to go and sit
vent to him. When I was about to sit down, he suddenly pulled the cane chair on which I
was going to sit close to his chair and touching his chair. I felt a little surprised. I put the
chair back at its original place and was about to sit down again when he repeated his
action of pulling the chair close to his chair, I realized that something was very wrong
and without sitting down I immediately left and went back and sat in my original place
between the other ladies. Mrs. Bijlani and Mrs. K. P. Bhandari , Mrs. Paramjeet singh
and Mrs. Shukla Mahajan were occupying seats on my right side and Mrs. Nehra was
sitting to the left of me at that time.

After about 10 minutes shri K.P. S. Gill got up from his seat and come and stood
directly in front of me, standing straight but so close that his legs were about four inches
from my knees. He made an action with the crook of his finger asking me to stand and
said: ‘You get up. You come alongwith me.’ I strongly objected to his behavior and
told him: ‘Mr. Gill how dare you! You are behaving in an obnoxious manner, go away
from here.’ Whereupon he repeated his words like a command, and said: ‘you get up!
Get up immediately and come alongwith me.’ I looked to the other ladies, all the ladies
looked shocked and speechless. I felt apprehensive and frightened, as he had blocked
my way and I could not get up from my chair without my body touching his body , I
then immediately drew my chair back about a foot and half and quickly got up and
turned to get out of the circle through the space between mine and Mrs. Bijlani’s chair.
Whereupon he slapped me on the posterior. This was done in the full presence of the
ladies and guests.”

The complainant then made a complaint to the host and told him that the
behavior of the accused was obnoxious and that he was not fit for decent company. The

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accused was then gently removed from the place, the complainant made a complaint to
the joint Director, Intelligence Bureau who was present there, she also narrated the
incident to her husband who was also present there. The next day she met the Chief
Secretary and recounted the entire incident to him and request him to take suitable
action against the accused. She also met the Advisor to the Governor and gave a full and
detailed account of the incident. She also met the Governor in this regard. On 29th July,
1988 she gave a written complaint to the police which was treated as the first
Information Report and a case was registered but no further steps were taken. After
about four months on Nov. 22, 1988 the complinant’s husband filed a complaint before
the Chief Judicial Magistrate Chandigarh alleging commission of offences punishable
under Sections 341,342,352,354 and 509 IPC.

The Chief Judicial Magistrate transferred the same to the Judicial Magistrate for
disposal and the latter, in view of the fact that an investigation by the police was in
progress in relation to the same offences called for a report from the investigation
officer47. In the meantime, on Dec. 16, 1988 Mr. Gill moved the High Court by filing a
petition under Section 482 Cr.P.C. for quashing the FIR and the complaint. The High
Court allowed the petition and quashed both the FIR and the complaint. The main
reasons that weighed with the High Court were that the allegations made therein do not
disclose any cognizable offence; the allegations were unnatural and improbable and the
nature of harm allegedly caused to the complainant did not entitle her to complain about
the same in view of Section 95, IPC48.

The complainant challenged the order of the High Court before the Supreme
Court where the moot point was whether the above allegations would constitute any or
all for the offences for which the case was registered. The Supreme Court observed49
that as both sections 354 and 509 of IPC relate to modesty of woman and the word
modesty has not been defined in the IPC so we may profitably look into its dictionary

47 Report was called by the Judicial Magistrate from the investigating officer in accordance with
Section 210 of the Cr.PC
48 Section 95 of the IPC provId.es as:
Nothing is an offence by reason that it causes ,or that it is intended to cause ,or that it is known to
be likely to cause, any harm, of that harm is so slight that no person of ordinary sense temper
would complain of such harm.
49 Rupan Deol Bajaj v.K.P.S. Gill AI.R. 1996 SC 309 at p .313 para 14

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meaning. According to Shorter Oxford English Dictionary (third edition) modesty is the
quality of being modest and in relation to woman means “ womanly propriety of
behavior, scrupulous chastity of thought, speech and conduct,” the above dictionary
defines the word ‘modest’ in relation to woman as “ decorous in manner and conduct,
not forward or lewd; shamefast.” Webster’s third new International Dictionary of the
English Language defines ‘modesty’ as freedom from coarseness, indelicacy or
indecency: a regard for propriety in dress, speech or conduct” In the Oxford English
Dictionary(1933 ed.) the meaning of the word ‘modesty’ is given as “Womanly
propriety of behavior; scrupulous chastity of thought, speech and conduct (in man or
woman); reserve or sense of shame proceeding from instinctive aversion to impure or
coarse suggestions.” So the Supreme Court expressed that from the above dictionary
meaning of the word modesty and the interpretation given to that word by this court in
Major Singh’s case50, “it appears to us that the ultimate test for ascertaining whether
modesty has been outraged is the action of the offender such as could be perceived as
one which is capable of shocking the sense of decency of a woman”. Applying this test
to the fact in Rupan Deol Bajaj case, M.K. Mukherjee J, concluded, “ It cannot but be
held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to
outraging of her modesty for it was not only an affront to the normal sense of feminine
decency but also affront to the dignity of the lady -sexual overtones or not,
notwithstanding51. In this case, the accused strenuously urged that even if it was assured
that he had outraged the modesty of the complaiant, still no offence under Section 354
IPC could be said to have been committed by him for the other ingredient of the
offence, namely, that he intended to do so was totally lacking. He urged that the
culpable intention of the offender in committing the act is the crux of the matter and not
the consequences thereof. While expressing that it is undoubtedly correct that “if
intention or knowledge is one of the ingredients of an offence, it has got to be proved
like other ingredients for convicting a person. But, it is also equally true that those
ingredients being state of mind may not be proved by direct evidence and may have to

50 In state of Punjab v. Major Singh AIR 1967 SC 63, Mudolkar J who alongwith Bachawat J. spoke
for the majority, held that when any act done to or in the presence of woman is clearly suggestive
of sex according to the common notions of mankind that must fall within the mischief of section
354 IPC. Bachawat J. observed that the essence of a women’s modesty is her sex and from her
very birth she possesses the modesty which is the attribute of her sex.
51 Rupan Deol Bajaj v. KPS Gill AIR 1996 SC 309 at p 313 para 15, M.K. Mukherjee J also saId.
that the common notions of mankind referred to by Mudolkar J. Major Singh case have to be
gauged by contemporary societal standards.

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be inferred from the attending circumstances of a given case.” The court concluded that
“From the sequence of events detailed earlier, the slapping was the finale to the earlier
overtures of the accused, which considered together showed that he had the requisite
culpable intention. Even if we had presumed that he had no such intention he must be
attributed with such knowledge, as the alleged act was committed by him in the
presence of a gathering comprising the elite of the society….” Further, there was
nothing in the FIR to indicate, even remotely, that the indecent act was committed by
the accused, accidentally or by mistake or it was slip. Based upon the aforesaid reasons,
the Supreme Court held that apart from the offence under Section 354, an offence under
Section 509 IPC has been made out on the allegations contained in the FRI as the words
used and gestures made by the accused were intended to insult the modesty of the
complainant52.”

Regarding Section 95 of IPC, the court adverted to its applicability. Relying

upon the principle laid down in Veeda Menezas case53, M.K. Mukherjee J, concluded in
Rupan Deol Bajaj case that “Section 95 of IPC has no manner of application to the
allegations made in the FIR. On perusal of the FIR we have found that the accused, the
topmost official of the state police, indecently behaved with the complainant, a senior
lady IAS officer, in the presence of a gentry and inspite of her raising objections
continued with his such behavior. If we are to hold, on the face of such allegations that,
the ignominy and trauma to which she was subjected to was so slight that the
complainant, as a person of ordinary sense and temper, would not complain about the
same, sagacity will be the first casualty54.”

The reason given by the High Court for quashing the FIR was: “ In the present
case there were 48 more persons present, 24 ladies and equal number of gentlemen, it

52 Id.. at pp. 313-14, paras 16 and 17

53 In Veeda Menezes v. Yusuf Khan AIR 1966 SC 1773 at p. 1775 para 5, the Supreme Court
observed as follows:
“Whether an act which amounts to an offence is trivial would undoubtedly depend upon the nature
of the injury, the position of the parties, the knowledge or intention with which the offending act is
done, other related circumstances. There can be no absolute standard or degree of harm which may
be regarded as so slight that a person of ordinary senses and temper would not complain of the
harm. It cannot be judged solely by the measure of physical or other injury the act causes.”
54 In Rupan Deol Bajaj KPS Gill AIR 1996 SC 309 pp 314-15 para 21 wherein the Supreme Court
found no need to delve into or decId.e the contention of the complainant that section 95 IPC
cannot have any manner of application to an offence relating to modesty of women as under no
circumstances can it be trivial.

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sounds both unnatural and unconscionable that the petitioner (accused) would attempt
or dare to outrage the modesty of the author of the First information Report in their very
presence inside the residential house of Financial Commissioner (Home).”

The Supreme Court in Rupan Deol Bajaj case said: “we are constrained to say
that in making the above observations the High Court has flagrantly disregarded-
unwittingly we presume, the settled principle of law, that at the stage of quashing an
FIR or complaint, the High Court is not justified in embarking upon an enquiry as to the
probability, reliability or genuineness of the allegations made therein. While agreeing
that an FIR or complaint may be quashed if the allegations made therein are so absurd
and inherently importable that no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused but the High Court has not
recorded such a finding, obviously because on the allegations in the FIR it was not
possible to do so.”55 For the aforesaid reasons, the Supreme Court held that the High
Court has committed a gross error of law in quashing the FIR and the complaint.
Accordingly, the Supreme Court set aside impugned Judgment of the High Court and
dismissed the petition filed by the accused in the High Court under Section 482 Cr.PC.
Further, the court directed the Chief Judicial Magistrate to take cognizance of the
offences under Sections 354 and 509 IPC.

The Chief Judicial Magistrate therefore, framed charges and after a full fledged
trial found the accused guilty of the offences punishable under Sections 354 and 509
IPC. The accused was sentenced to undergo imprisonment for a period of three months
and a fine of Rs. 500 for the offence under Section 354 and for the offence under
Section 509 IPC, punishment of simple imprisonment for a period of two months and
fine of Rs. 200 was imposed. In the appeal preferred by the accused, the Sessions Judge
confirmed the conviction, but altered the sentence and the accused was directed to be
released on probation in lieu of custodial sentence. The fine was enhanced to Rs 50,000
with a further direction to pay half of it to the complainant. In revision, the High Court
did not interfere with the conviction of the accused under Sections 354 and 509.
However, it enhanced the fine to Rs 2,00,000 and directed that the entire amount should

55 Id.. at p. 315 para 23, the Supreme Court relied upon the decision of the Supreme Court in State of
Haryana v Bhajan Lal AIR 1992 SC 604.

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be paid to the prosecutrix. An amount of Rs 25,000 was also imposed as costs on the
accused.

The judgement of the High Court was challenged by the accused as well as the
complainant. The Division Bench of the Supreme Court comprising K.G. Balakrishna
and B.N Srikrishna JJ56, gave short shift to the contention of the accused that the
complaint was filed after three months from the date of the alleged incident. According
to K.G. Balakrishna, J ,the delay in filing the complaint before the Magistrate was by
itself not sufficient to reject the complaint of the prosecutrix. The judge took note in this
regard that the prosecutrix recounted the entire incident immediately to the Chief
Secretary and other officers and raised objections and also sought for stringent action
against the accused. When she failed in all these attempts, she and her husband filed the
criminal complaint before the Chief Judicial Magistrate. The Supreme Court also
rejected the contention of the accused that no such incident happened and this was a part
of a conspiracy to malign him as he had taken many actions to control the activities of
the militants. Dismissing the appeal filed by the accused. K.G Balakrishna J held:

“ There is nothing to suggest that the prosecutrix acted in connivance with some
others and that she hatched a conspiracy to malign the accused. If the whole incident is
viewed in correct perspective, it is clear that the behavior of the accused on the date of
the incident was not consistent with the high standard of top ranking police officer. The
finding of the various courts is to the affect that the accused gently slapped on the
posterior of the prosecutrix in the presence of some guests. This act on the part of the
accused would certainly constitute the ingredient of Section 354 IPC. It is proved that
the accused used criminal force with intent to outrage the modesty of the complainant
and that he knew fully well that gently slapping on the posterior of the prosecutrix in the
presence of other guests would embarrass her. Knowledge can be attributed to the
accused that he was fully aware that touching the body of the prosecutrix at that place
and time would amount to outraging her modesty. Had it been without any culpable
intention on the part of the accused, nobody would have taken notice of the incident.
The prosecutrix made such a hue and cry immediately after the incident and the reaction

56 Kanwar Pal Singh Gill v. State ( Admn. UT Chandigarh) with Rupan Deol Bajaj V. Kanwar Pal
Singh Gill (2005) 6 SCC 161

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of the prosecutrix is very much relevant to take note of the whole incident. The accused
being a police officer of the highest rank should have been exceedingly careful and
failure to do so by touching the body of the complainant with culpable intention, he
committed the offence punishable under Sections 354 and 509 IPC. In view of the
findings of fact recorded by the two courts and affirmed by the High Court in revision,
the order of the High Court cannot be set aside on the mere assertion by the accused that
the whole incident was falsely foisted on him with ulterior motives.”57

In appeal, the complainant contended that crimes against women are on the rise
and the courts should have dealt with the matter severely and the accused should not
have been released on probation. Noting that the incident happened in 1988 and the
accused had completed the period of probation and there was no occasion for any
complaint or violation of any of the terms of the bond, the Supreme Court concluded
that it would be unjust and improper to impose any other punishment, thus the Supreme
Court dismissed the complainant’s appeal also.

The facts of the case reveal that the patriarchal idealogy has such great impact
on the people in the society that even if the woman rises to the height of acquiring
senior administrative position, the male members still do not want to liberate them from
the chains of bondage and subordination. More so, the attitude of the High Court in
trivializing the act of slapping of the woman reflect the traditional biases and gender
insensitivity of the judiciary. However, the response of the apex court in rectifying this
gross error and considering this act as offensive to human dignity is commendable. It
may not be out of place to mention here that the Supreme Court reached the conclusion
after gleaning through the definition of the word modesty from a number of dictionaries
in the absence of its exact definition in the IPC.

In Vishaka v. State of Rajasthan58, the writ petition59 was filed as a class action
by certain social activists and NGOs for the enforcement of the fundamental rights of
working women under Articles 14, 19 and 21 of the Constitution of India in view of the

57 Id.. at p. 164-65 para 4.

58 AIR 1997 SC 3011.
59 The immediate cause for filing of this writ petition is an incId.ent of alleged brutal gang rape of a
social worker involved in a Government project working against child marriage in a village of
Rajasthan.

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prevailing climate in which the violation of these rights is not uncommon. With the
increasing awareness and emphasis on gender justice, there is increase in the effort to
guard against such violations; and the resentment towards incidents of sexual
harassment is also necessary. The present petition was filed with the aim of focussing
attention towards this societal aberration and assisting in finding suitable methods for
realization of the true concept of gender equality, and to prevent sexual harassment of
working women in all workplaces through judicial process, to fill the vacuum in
existing legislation. In the absence of legislative measures, the need is to find an
effective alternative mechanism to fulfill this felt and urgent social need.

J.S. Verma CJI, for the Supreme Court held,

Each such incident results in violation of the fundamental rights of

‘gender equality’ and the ‘right to life and liberty’ It is as a clear violation of the
rights under Articles 14, 15 and 21 of the Constitution. One of the logical
consequences of such an incident is also the violation of the victim’s fundamental
right under Article 19 (1)(g) to practise any profession or to carry on any
occupation, trade or business. Such violations, therefore, attract the remedy under
Article 32 for the enforcement of these fundamental rights of women…….. The
fundamental right to carry on any occupation, trade or profession depends on the
availability of a ‘safe’ working environment. Right to life means life with dignity.
The primary responsibility for ensuring such safety and dignity through suitable
legislation, and the creation of a mechanism for its enforcement, is of the
legislature and the executive. When, however, instances of sexual harassment
resulting in violation of fundamental rights of women workers under Articles 14,
19 and 21 ……. an effective redressal requires that some guidelines should be
laid down for the protection of these rights to fill the legislative vacuum.60 In the
absence of domestic law occupying the filed, to formulate effective measures to
check the evil of sexual harassment of working women at all workplaces, the
contents of international Convention and norms are significant for the purpose of
interpretation of the guarantee of gender equality, right to work with human
dignity in Articles 14, 15,19 (1) (g) and 21 of the Constitution and the safeguards

60 AIR 1997 SC 3011 at pp. 3012-13para 3.

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against sexual harassment implicit therein. Any international Convention not

inconsistent with the fundamental rights and in harmony with its sprit must be
read into these provisions to enlarge the meaning and content thereof, to promote
the object of the constitutional guarantee. This is implicit from Article 51 ( c) and
the enabling power of the Parliament to enact laws for implementing the
international Conventions and norms by virtue of Article 253 read with entry 14
of the Union list in Seventh Schedule of the Constitution….61

Thus the Supreme Court expressed that the meaning and content of the
fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to
encompass all the facets of gender equality including prevention of sexual harassment
or abuse. Independence of Judiciary forms a part of our Constitutional scheme. The
international Conventions and norms are to be read into them in the absence of enacted
domestic law occupying the field when there is no inconsistency between them. It is
now an accepted rule of judicial construction that regard must be had to international
Conventions and norms for construing domestic law when there is no inconsistency
between them and there is a void in the domestic laws.62

Thus the Supreme Court put reliance on the Beijing Conference of 199563 and
the Convention on the Elimination of All Forms of Discrimination Against Women64
and definition of human rights in the Protection of Human Rights Act.65 The Supreme

61 Id.. at pp. 3013-14 para 7. The court expressed that Article 73 is also relevant which provId.es that
the executive power of the union shall extend to the matters with respect to which parliament has
power to make laws. The executive power of the union is, therefore, available till the parliament
exacts legislation to expressly provId.e measures need to curb the evil.
62 Id.. at p. 3015 para 14. The court also referred that the High Court of Australia in Minister for
Immigration and Ehnic Affairs v. Teoh, 128 ALR 353, has recognized the concept of legitimate
expectation of its observance in the absence of a contrary legislative provision, even in the absence
of a Bill of Rights in constitution of Australia.
63 Id.. at p. 3014 para 11. The Beijing statement of principles of the independent of the judiciary were
accepted by the chief Justices of Asia and the Pacific at Beijing 1995 as those representing the
minimum standards necessary to be observed in order to maintain the independence and effective
functioning of the judiciary.
64 Id.. at pp. 3014-15 paras 12 and 13. Articles 11, 22, 23 and 24 of the convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) were take into
consId.eration by the Supreme Court in order to define sexual harassment of women at workplace
and requiring the state parties to ensure compliance with the previous of convention in order to
prevent this evil.

65 Id.. at p. 3015 para 16. The definition of human rights in section 2(d) of the Protection of the
Human Rights Act, 1993 was taken into consId.eration by the Supreme Court.

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Court held that “Taking note of the fact that the present civil and penal laws in India do
not adequately provide for specific protection of women from sexual harassment in
workplaces and that enactment of such legislation will take considerable time, it is
necessary and expedient for employers in workplaces as well as other responsible
persons or institutions to observe certain guidelines issued by the Supreme Court in
exercise of the power under Article 32 of the Constitution to ensure the prevention of
sexual harassment of women. The guidelines and norms prescribed herein are as under:

1. Duty of the Employer or other responsible persons in workplaces and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other
institutions to prevent or deter the commission of acts of sexual harassment and to
provide the procedures for the resolution, settlement, or prosecution of acts of sexual
harassment by taking all steps required.

2. Definition: For this purpose, sexual harassment includes such unwelcome sexually
determined behavior (whether directly or by implication) as;

a) Physical contact and advances;

b) A demand or request for sexual farours;

c) Sexually coloured remarks;

d) Showing pornography;

e) Any other unwelcome physical, verbal or non verbal conduct of sexual nature.
Where any of these acts is committed in circumstances whereunder the victim of such
conduct has a reasonable apprehension that in relation to the victims employment or
work whether she is drawing salary, or honorarium or voluntary, whether in
government, public or private enterprise, such conduct can be humiliating and may
constitute a health and safety problem. It is discriminatory for instance when the woman
has reasonable grounds to believe that her objection would disadvantage her in
connection with her employment or work including recruiting or promotion or when it
creates a hostile work environment. Adverse consequences might be visited if the victim
does not consent to the conduct in question or raises any objection thereto.

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3. Preventive steps: All employers or persons in charge of work place whether in

the public or private sector should take appropriate steps to prevent sexual harassment.
Without prejudice to the generality of this obligation they should take the following
steps:

a. Express prohibition of sexual harassment as defined above at the workplace should

be notified, published, and circulated in appropriate ways.

b. The Rules/Regulations of government and public sector bodies relating to conduct

and discipline should include rules/regulations prohibiting sexual harassment and
provide for appropriate penalties in such rules against the offender.

c. As regards private employers steps should be taken to include the aforesaid

prohibitions in the standing orders under the Industrial Employment (Standing
orders) Act, 1946.

d. Appropriate work conditions should be provided in respect of work, leisure, health,

and hygiene to further ensure that there is no hostile environment towards women
at workplaces and no employee woman should have reasonable grounds to believe
that she is disadvantaged in connection with her employment.

4. Criminal proceedings: Where such conduct amounts to a specific offence under

the Indian Penal Code or under any other law, the employer shall initiate appropriate
action in accordance with law by making a complaint with the appropriate authority. In
particular, it should ensure that victim, or witnesses are not victimized or discriminated
against while dealing with complaints of sexual harassment. The victims of sexual
harassment should have the option to seek transfer of the perpetrator or their own
transfer.

5. Disciplinary Action: Where such conduct amounts to misconduct in employment

as defined by the relevant service rules, appropriate disciplinary action should be
initiated by the employer in accordance with those rules.

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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 employer’s 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
members 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. The
complaints committee must make an annual report to the government department
concerned of the complaints and action taken by them. The employers and persons in
charge will also report on the compliance with the aforesaid guidelines including on the
reports of the complaints committee to the government department.

8. Workers Initiative: Employees should be allowed to raise issues of sexual

harassment at workers meeting and in other appropriate forum and it should be
affirmatively discussed in Employer- Employee meetings

9. Awareness: Awareness of the rights of female employees in this regard should

be created in particular by prominently notifying the guidelines (and appropriate
legislations when enacted on the subject) in a suitable manner.

10. Third Party Harassment: Where sexual harassment occurs as a result of an act or
omission by any third party or outsider, the employer and person in charge will take all

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steps necessary and reasonable to assist the affected person in terms of support and
preventive action.

11. The Central /State Governments are requested to consider adopting suitable
measures including legislation to ensure that the guidelines laid down by this order are
also observed by the employers in private sector.

12. These guidelines will not prejudice any rights available under the Protection of
Human Rights Act, 1993.

Accordingly, the Supreme Court directed that the above guidelines and norms
would be strictly observed in all workplaces for the preservation and enforcement of the
right to gender equality of the working women. These directions would be binding and
treated as the law declared by this court under Article 141 of the Constitution until
suitable legislation is enacted to occupy the field.66 The Supreme Court of India for the
first time recognized that gender equality includes protection from sexual harassment
and right to work with dignity, which is a universally recognized basic human right. The
common requirement of this right has received global acceptance. 67

Thus for the first time, focus of violence against women has been shifted from a
criminal wrong to systematic discriminatory conduct and responsibility has been shifted
to a larger civil society to eliminate the same. However, nothing is mentioned in the
guidelines as to whether its members should be elected or selected even though the
composition of complaint committee has a strong bearing on the redressal of the
grievances of the sexual harassment of women at workplace.

66 Id.. at 3015-17 para 16

67 Id.. at 3014 para 10

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In Apparel Export Promotion Council v. A.K. Chopra68, the respondent was

working as a private secretary to the chairman of the Apparel Export Promotion
Council, the appellant. On 12-8-1988, the respondent tried to molest a woman employee
of the Council, Miss X who was at the relevant time working as a clerk –cum- typist.
She was not competent or trained to take dictation. The respondent, however, insisted
that she go with him to the business centre at Taj Palace hotel for taking dictations from
the chairman and type out the matter. Under the pressure of the respondent, she went to
take the dictation from the chairman. While Miss X was waiting for the Director in the
room, the respondent tried to sit too close to her and despite her objection did not give
up his objectionable behavior. She later on took dictation from the Director. The
respondent told her to type it at the business centre of the Taj Palace hotel, which is
located in the basement of the hotel. He offered her his assistance so that her typing
was not found fault with by the Director. He volunteered to show her the business
centre for getting the matter typed and taking advantage of the isolated place, again tried
to sit close to her and touch her despite her objections. The draft typed matter was
corrected by Director (Finance) who asked Miss X to retype the same. The respondent
again went with her to the business centre and repeated his overtures. Miss X told the
respondent that she would leave the place if he continued to behave like that. The
respondent did not stop. Though he went out from the business centre for a while, he
again came back and resumed his objectionable acts. According to Miss X, the
respondent had tried to molest her physically in the lift also while coming to the
basement but she saved herself by pressing the emergency button, which made the door
of the lift to open. On the next day, that is on 16th August 1988, Miss X was unable to
meet the Director (Personnel) for lodging her complaint against the respondent as he
was busy, she succeeded in meeting him only on 17th August 1988 and apart from
narrating the whole incident to him orally, submitted a written complaint also. The
respondent was placed under suspension vide an order dated 18th August 1988. A
charge sheet was served on him to which he gave a reply defying the allegations and
asserting that the allegations were imaginary and motivated. Sh JD Giri , a Director of
the council was appointed as an Enquiry officer to enquiry into the charges framed
against the respondent. The enquiry officer after considering the documentary and oral

68 AIR 1999 SC 625.

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evidence and circumstances of the case arrived at the conclusion that the respondent had
acted against moral sanctions and that his acts against Miss X did not withstand the test
of decency and modesty as he tried to touch her person in the business centre with
ulterior motives despite reprimands by her. Hence the charges against him proved.
Agreeing with the report of the enquiry officer, the Disciplinary Authority imposed the
penalty of removing him from service with immediate effect on 28th June 1989.

Aggrieved by the order, the respondent filed departmental appeal before the staff
committee of the appellant. The staff committee also concluded that the order of
removal dated 28th June 1989 was legal, proper, and valid. The respondent then
challenged this order before the High Court. The learned single judge opined, “That…..
the petitioner tried to molest and not that the petitioner had in fact molested the
complainant.” The learned single judge, therefore, disposed of the writ petition with a
direction that “the respondent be reinstated in service but that he would not be entitled
to receive any back wages. The appellant was directed to consider the period between
the date of the removal of the respondent from the service and the date of reinstatement
as the period spent on duty and to give him consequential promotion and all other
benefits. It was however, directed that the respondent be posted in any other office
outside Delhi, at least for a period of two years.”69

Aggrieved by the order, both appellant and respondent filed letters patent appeal
before the Division Bench of the High Court.

The Division Bench of the High Court agreed with the learned single judge that
the respondent had ‘tried’ to molest and that he had not actually molested Miss X and
that he had not managed to make the slightest physical contact with the lady so there
cannot be any attempt to molest but only tried to molest and went on to hold that such
an act of the respondent was not a sufficient ground for his dismissal from service.

Aggrieved by the judgment, the appellant filed special leave petition before the
Supreme Court. The questions before the Supreme Court were:

69 Id.. at pp. 628-29 para 9

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“Does an action of the superior against a female employee which is against

moral sanctions and does not withstand the test of decency and modesty not amount to
sexual harassment? Is physical contact with the female employee an essential ingredient
of such a charge? Does the allegation that the superior tried to molest a female
employee at the place of work not constitute an act unbecoming of good conduct and
behavior expected from the superior?”70

Setting aside the High Court judgment a Division Bench of the Supreme Court
said that respondent acted in manner which demonstrated unwelcome sexual advances,
both directly and by implication, and his actions created an intimidating and hostile
working environment for the victim. The Supreme Court expressed that the High Court
gave meaning to the expression molestation as if it was dealing with a finding in a
criminal trial. Miss X the victim had used the expression molestation in her complaint in
a general sense which she had duly explained and elaborated in her evidence in the
enquiry. Assuming for the sake of argument that the respondent did not manage to
establish any physical contact with the victim, (even though one witness had deposed
having seen the respondent put his hand on the hand of the victim), it did not mean that
the respondent had not made any objectionable overtures with sexual overtones. The
Supreme Court observed that the dictionary meaning of the word molestation or
physical assault are irrelevant. The entire episode reveals that the respondent had
harassed, pestered, and subjected the victim, by a conduct which was against moral
sanctions and which did not withstand the test of decency and modesty and which
projected unwelcome sexual advances. Such an action on the part of the respondent
would be squarely covered by the term ‘sexual harassment’. The material on the record
clearly established an unwelcome sexually determined behavior on the part of the
respondent against the victim which was also an attempt to outrage her modesty. Any
action or gesture, whether directly or by implication, aims at or has the tandency to
outrage the modesty of a female employee must fall under the general couple of the
definition of sexual harassment. The evidence on the record clearly established that the

70
Id.. at p. 627 para 2. These are some of the questions besId.es the nature of approach expected
from the Law courts to cases involving sexual harassment which come to the forefront and require
consideration of the Supreme Court.

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respondent caused sexual harassment to victim, taking advantage of his superior

position in the council.71

Expressing dissatisfaction over the observation of the High Court, the Supreme
Court expressed:
“the observations made by the High Court to the effect that since the respondent
did not actually molest the victim but only tried to molest her and therefore, his removal
from service was not warranted rebel against realism and lost their sanctity and
credibility. In the instant case, the behavior of respondent did not cease to be outrageous
for want of an actual assault or touch by the superior officer. In a case involving charge
of sexual harassment or attempt to sexually molest, the courts are required to examine
the broader probabilities of a case and not get swayed by insignificant discrepancies or
narrow technicalities or dictionary meaning of the expression molestation. They must
examine the entire material to determine the genuineness of the complaint. The
statement of the victim must be appreciated in the background of the entire case. Where
the evidence of the victim inspires confidence, as is the position in the instant case, the
courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity.
Sympathy in such cases in favour of the superior officer is wholly misplaces and mercy
has no relevance. The High Court overlooked the ground realities and ignored the fact
that the conduct of the respondent against the junior female employee, Miss X (the
Victim) was wholly against moral sanctions, decency and was offensive to her modesty.
Reduction of punishment in a case like this is bound to have demoralizing effect on the
women employees and is a retrograde step ….. The act of the respondent was
unbecoming of good conduct and behavior expected from a superior officer and
undoubtedly amounted to sexual harassment of Miss X (the victim) and the punishment
imposed by the appellant, was thus commensurate with the gravity of his objectionable
behavior and did not warrant any interference by the High Court in exercise of its power
of judicial review.”72

The Supreme Court analyzed the definition of sexual harassment as laid down in
vishaka’s case and held,

71
Id.. at pp. 632-33 para 23,24
72
Id.. at pp. 634-35 para 2

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….. sexual harassment is a form of sex discriminations projected through

unwelcome sexual advances, request for sexual favour and other verbal or
physical conduct with sexual overtones, whether directly or by implication,
particularly when submission to or rejection of such a conduct by the female
employee was capable of being used for effecting the employment of the female
employee and unreasonably interfering with her work performance and had the
effect of creating an intimidating or hostile working environment for her.73

The Supreme Court further expressed, “there is no gainsaying that each incident
of sexual harassment, at the place of work, results in violation of the fundamental right
to gender equality and the right to life and liberty , the most precious fundamental rights
guaranteed by the Constitution of India. As early as in 1993 at the ILO seminar held at
Manila, it was recognized that sexual harassment of women at the workplace was a
form of gender discrimination against women …… the contents of the fndamental
rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets
of gender equality, including prevention of sexual harassment and abuse and the courts
are under a Constitutional obligation to protect and preserve those fundamental rights.
That sexual harassment of a female at the place of work is incompatible with the dignity
and honour of a female and needs to be eliminated and that there can be no compromise
with such violations, admits of no debate.”74

While making reference to the Convention on the Elimination of All Forms of

Discrimination against women, Beijing Declaration75 and the International Covenant on
Economic, Social and Cultural Rights76, the Supreme Court expressed,

73
Id.. at p. 633 para 26

74 Id.. at p. 634 para 27

75 Ibid.., Convention on the Elimination of All Forms of Discrimination Against Women, 1997
(CEDAW) and the Beijing Declaration directs all state parties to take appropriate measures to
prevent discrimination of all forms against women besides taking steps to protect the honour and
dignity of women.
76 Ibid.., Article 7 of the International Convent on Economic, Social and Cultural Rights, 1966
recognizes her right to fair conditions of work and reflects that women shall not be subjected to
sexual harassment at the place of work which may vitiate working environment.

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“These international instruments cast an obligation on the Indian State to gender

sensitize its laws and the courts are under an obligation to see that the message of the
international instruments is not allowed to be drowned. The courts are under an
obligation to give due regard to international Conventions and norms for construing
domestic laws more so when there is no inconsistency between them and there is a void
in domestic law.”77

Taking note of the error of the High Court in ignoring the intent and content of
the international Conventions and norms while dealing with this case, the Supreme
Court held that in cases involving violation of human rights, the courts must for ever
remain alive to the international instruments and Conventions and apply the same to a
given case when there is no inconsistency between the international norms and the
domestic law occupying the field.78 While upholding the punishment as imposed by
disciplinary authority and upheld by departmental appellate authority regarding the
removal of the respondent from service, the Supreme Court concluded,

“ … Any lenient action in such a case is bound to have demoralizing effect on

working women. Sympathy in such cases is uncalled for and mercy is misplaced.”79
This is the specific case of the hostile working environment harassment, however, the
observation of the High Court in perceiving the situation only in the light of obsolete
and outmoded concept of modesty reflects the lack of awareness and gender
insensitivity on their part even two years after the pronouncement of the landmark
guidelines in Vishaka’s case by the apex court.

In Saudi Arabian Airlines, Mumbai v. Shehnaz Mudbhatkal80, the victim, a

lady, was employed with the Saudi Arabian Airlines as Secretary to the Station
Manager. One B, a male, subsequently took charge as Station Manager (Airport). The
said B made "repeated attempts to transgress the limits of healthy working relationship"

77 Ibid., also see Prem Shankar v Delhi Administration AIR 1980 SC 1535; Mackninnon Mackenzie
and co.v. Andrey D Costa (1987) 2 SCC 469:(1987) 2 JT (SC) 34:AIR 1987 SC 1281; Sheela
Barse v. Secretary Children AId. Society (1987) 3SCC 50 at 54: AIR 1987 SC 656 at pp. 658-659;
Vishka v. State of Rajasthan AIR 1997 SC 3011; Peoples’ Union for Civil Liberties V union of
India 1997 (2JT) (SC) 311 and D.K. Basu v State of West Bengal (1997) 1SCC416 at p. 438.
78 Id.., para 28.
79 Id.., at 635 para 30.
80 (1999) 2 LLJ (Bom.)

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with the victim who was his subordinate. B used to make persistent demands to the
victim that she should come out with him for lunches and dinners, which she politely
declined. Then he started making indecent and objectionable personal remarks, like, for
example, asking her the details of the method of family planning followed by her. Now,
this was a purely personal matter with which neither he nor any other superior officer
could have any concern., The victim protested vigorously against such offensive,
unwelcome personal remarks. She also told B politely, but in unmistakable terms, that
she had no interest in having any personal relationship with him as it offended her moral
values. However, this polite rebuff evidently offended the ego of B and he then started
systematically harassing her. The victim was denied the promotion due to her. Instead,
her junior was promoted. B's improper requests and unwelcome sexual advances,
however, continued during the day-to-day working. When a second vacancy for the
promotion post for the victim arose, she made a representation requesting for being
promoted. Soon thereafter B telephoned to her residence around midnight and asked her
to visit his residence right away to discuss the issue of her promotion. The victim
considered the suggestion extremely offensive, expressed her displeasure at the conduct
of B and reported the matter to the Petitioner's Country Manager(India), who assured
her that suitable action would be taken against B. The Country Manager also requested
her “not to make a big issue” of B's conduct by officially making a written complaint of
the incident, as it would harm her job and reputation as well as the prestige of the
petitioner Airlines. The Country Manager, without putting anything on record, pulled up
B and this led to B adopting a vindictive attitude towards the victim. Her representation
was totally ignored and the promotion was given to someone else who was her junior
and in fact had been trained by her on several job functions. The constant harassment at
work led to continued mental tension and anxiety for the victim and resulted in her
sickness and applying for leave as approved by the petitioner's doctor. Even after she
resumed work, B continued to sexually harass and humiliate her by issuing her false
memos on untrue and trumped up allegations of negligence in work. Her request for a
vacation was rejected. She was denied training facilities. Though serious mistakes of
other staff were overlooked, but she was promptly given warning letters on petty and,
on occasions, non-existent grounds. She was even forced to carry out typing work
which was not part of her regular job.

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The continued harassment meted out to the victim constrained her to complain
to her Supervisor, seeking his intervention in the matter. When the Supervisor sought
clarifications from B, the latter immediately sent the victim on leave, though earlier he
had rejected such leave. However, when the victim attempted to resume duty on the
expiry of her leave, she was not allowed to do so for four days, nor was she allowed to
sign the muster-roll or perform any other duties despite her going to the office every
day. During this period of four days, B threatened her that she would be dismissed from
work and that he would make sure that the job of her husband in Saudi Arabia would be
put in danger.

During that period the victim was living alone in Mumbai with two small
children. Her husband was employed in Saudi Arabia. The pressure tactics of B resulted
in creating an acute state of mental anxiety on the part of the victim and enabled B to
extract an apology letter from her, after which she was taken back on duty. While taking
the said apology letter, B assured the victim that it would not be used for official
purpose. Contrary to this assurance, B got her suspended without wages for five days.
When the victim resumed her duty and told B that the suspension was illegal and that
she would take up the matter with the Head Office of the Petitioner in Saudi Arabia, B
complained to the Country Manager who summoned the victim to his office and
threatened her that, with the help of the Consul General of Saudi Arabia, he would
ensure that her husband lost his job in Saudi Arabia if she attempted to challenge the
suspension order. Left with no recourse, the victim succumbed to this threat and
endured the punishment, though it was based on false grounds and was without basis.

Subsequently, the victim was assigned the job of typing, which was not her
regular job. In fact, the practice in the petitioner Company was that professional typists
would be hired on temporary basis for typing jobs. Even though professional typists
were available, the victim was called upon to do heavy typing work every day.
This resulted in her developing severe pain in her chest and she was constrained to take
medical leave for a month. The victim then decided to put an end to the continuous
sexual harassment by taking up the matter with the higher authorities of the petitioner
Company at its Head office in Jeddah, Saudi Arabia. She followed it up, meeting very
senior officers of the petitioner, who assured her that necessary steps would be taken.

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When the victim returned to Mumbai and reported for work, she was once again not
allowed to resume duties. Later, she received a letter terminating her service, which
appeared predated and intended to render ineffective her representation to the higher
authorities at Jeddah. The ostensible reason given in the letter for termination of her
service was that she was guilty of wilful insubordination and acts of negligence.

The Labour Court, Mumbai, concluded that the victim had been sexually
harassed by B and also victimised for not yielding to B's improper sexual advances by
dismissal from service on false and trumped up allegations. The Labour Court,
therefore, directed reinstatement of the victim with full back wages and continuity
of service and all attendant benefits.

Refusing to interfere with the Labour Court's award, and awarding costs of Rs
10,000 to the victim, a Single Judge of the Mumbai High Court said:

"An overall view of the case ... brings out that (the victim), a lady, was subjected
to continuous sexual harassment by her official superior (B) .... (The victim) has been
victimised for her refusing to submit herself to the sexual demands of her superior. The
conduct of (B) would squarely fit in with the concept of 'sexual harassment' as defined
by the Supreme Court in the case of Vishaka v. State of Rajasthan.81"

In appeal, the Division Bench of the Mumbai High Court declined to interfere
with the judgment of the Single Judge and concurred with the observation of the Single
Judge that B's conduct constituted 'sexual harassment' in terms of the Supreme Court's
decision in Vishaka v. State of Rajasthan82 . While dismissing the Letters Patent appeal,
the Division Bench also imposed costs of Rs 10,000 on the Appellant Company.

The facts of the case reveal the quid pro quo and hostile environment sexual
harassment as the victim was asked to submit herself to sexual favours and then also
harassed by creating the hostile environment for her. The attitude of the employer i.e.
country manager was also discouraging as instead of getting the matter enquired from
complaint committee, he made every effort to hush up the matter stating that it would

81 (1997) 6 SCC 241: AIR 1997 SC 3011

82 Ibid..

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affect her job and reputation as well as the prestige of the company. Not only this, she
was even suspended from the service and was also threatened that her husband would
also loose job if she attempted to challenge the suspension order. This is a bone chilling
case of sexual harassment which illustrates how a victim of sexual harassment is
dissuaded from registering the complaint and further victimised for complaining the
matter and can be compelled to withdraw the complaint. The attitude of the judiciary in
recognising this typical type of sexual harassment is commendable. However, the cost
of Rs10,000/- is too less for such a serious kind of sexual harassment of the female
employee as it gives a wrong signal of trivialising the offence which should be
amenable to exemplary punishment.

In Juli John v. Raman83, the petitioner was doing her M. Phil course in Botany at
the Centre for Advanced Studies, Gundy campus, University of Madras and Dr. N.
Raman was the lecturer in the Botany Department and he was her guide. As per her
complaint, Dr. Raman misbehaved with her by catching hold of her arms when she went
to his room in connection with her research work. After she got herself released, she
warned him stating that she did not like such things and asked him not do it anymore.
Then Dr. Raman wanted her to come on the next day for completion of the discussion.
Next day again when she went to his room, after offering her a seat and discussing
seminar matters, Dr. Raman caught hold of her hand. The petitioner immediately
pushed off his hand, released herself from his grip and ran out of the room leaving her
slippers in the room itself. Outside the room she met a research student and informed
him about the incident. Then on his advice, she met a lady professor Dr. Indira and told
her everything. Based on the complaint made by the petitioner to the Director, an
enquiry was conducted. Since according to the petitioner the enquiry was not conducted
properly, she lodged a complaint with the police against Dr. Raman and consequently
the police registered a case against him.

The trial court acquitted Dr. Raman on the ground that the offence was not
proved beyond reasonable doubt. However, in revision, the Madras High Court found
that the Magistrate erred in holding that the petitioner gave a false complaint against Dr.
Raman at the instance of pw7, a reader in the Botany Department. There was no

83 (1999) 105 Cri LJ 2174(Mad.)

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admissible material based on which court could draw such an inference. The trial court
fully relied upon the enquiry report submitted by the enquiry officer of the university.
Though this voluminous report was marked through an official of the university, the
contents of the report were not spoken to by any witness. Moreover, neither the enquiry
officer nor the witnesses on the side of the university were examined. In these
circumstances, the single judge of the High Court said that it was highly unfortunate for
the trial court to rely upon the enquiry report to hastily hold that the petitioner’s
complaint might not be true one. One of the grounds given by the trial court for
acquitting Dr. Raman was that even as per the petitioner, Dr. Raman had only touched
her hands; thus, there was no material to show that he misbehaved with her. M.
Karpagavinayagan J. of the Madras High Court termed this observation of the trial court
as quite unfortunate.

The single judge of the Madras High Court also observed that the petitioner in
her evidence before the trial court fully substantiated her complaint, other witnesses also
deposed that she come out of the room without slippers. She was weeping at that time
and told them as to what had happened inside the room. So there was no reason to
disbelieve the version of the petitioner. No doubt, there was no other evidence to
corroborate her version as to what happened inside the room. Because, when the said
incident took place inside the room, nobody else was available. Therefore, the court was
required to analyze the credibility of the petitioner alone. However, since nearly 9 years
had elapsed after the occurrence and the petitioner since got married and was settled at a
distant place after finishing her studies, the High Court did not deem it appropriate to
remand the matter to the trial court for fresh consideration.

This case depicts the kind of sexual harassment faced by the students/scholars in
the educational institutions. When women suffer this type of behavior and that too from
teachers/supervisors, they are shattered to such an extent that it becomes difficult for
them to concentrate on their studies and produce the desired results. The approach of the
trial court shows that the incident of such type are not taken seriously.

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In Ajaya Kumar Das v. State of Orissa84 ,the accused was caught red-handed by
the victim and her husband when he moved his hands on the private parts of the victim
while they were witnessing a ‘mela’. The trial court found the accused guilty under
Section 354 IPC and punished him with rigorous imprisonment for eight months. The
single judge of the Orissa High Court did not interfere with the judgment of lower Court
and maintained conviction of the accused under Section 354 of IPC by observing that a
person should not be so careless as to allow his hand to touch the private part of a
woman moving near him. At the same time, he also concluded that the matter was a
very trifling one as it could not be said with conviction that while moving in a ‘mela’
crowded with people, one’s hand would not touch the person of others. The courts
below did not keep this aspect in mind, nor discussed in their judgment whether the
accused had intentionally touched the private part of the victim. Thus, the single judge
held that ends of justice and equity would be better served if the conviction of the
accused was maintained but the punishment of rigorous imprisonment for 8 months was
modified and instead a fine of Rs 3000/- was imposed on him out of which a sum of Rs
2000/- was to be paid to the victim and in default, the accused was to undergo rigorous
imprisonment for 8 months. The judgment of the court reveals a very confusing state of
mind because on the one hand the single judge considered sexual harassment of women
at crowded places as very trifling matter but on the other hand, considers that ends of
justice can be meted out by the imposition of exemplary fine. However, the court’s idea
of exemplary fine was a sum of Rs 3000 only. This type of attitude of the judiciary can
shatter the confidence of the women victim of sexual harassment in the society.

In State of Maharashtra v. Satyandra Dayal Khare85, the complainant, a

probationer of the Indian Customs and Central Exercise Service, Group A, was
undergoing training while attached to the Bombay custom House. As part of her
training she was required to write an assignment and, for that purpose, she was stationed
at the Sahar Airport collectorate. According to her complaint, since she had completed
her training, she wanted to say her goodbyes. Accordingly on 21-3-92 at about 3.05
p.m she went to the office of the collector of customs, Sahar Airport and met (Mr.
Khare) the accused who showed concern about her training and enquired about her

84 2003 Cr. L.J. 2651 Ori., per A.S. NaId.u, J.

85 2004 Cri. LJ 3399 Bom.

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assignment and other such matters. The accused told the complainant that he was going
to his office at the Sahar Airport complex and asked her to accompany him to learn
about the particular topic (the Revenue Drive). The complainant expressed her inability
to accompany the accused as she had to meet the additional collector Rajendra Prasad
and other officers to thank them for their help since it was her last day of work at Sahar
Airport. Just then Rajendra Prasad entered the office and the accused told Rajendra
Prasad that the complainant was on her way to see him. Rajendra Prasad asked the
complainant to wait in his office, accordingly the complainant left and waited in the
office of Rajendra Prasad. Within a short while, Rajendra Prasad came in. After some
discussion, Rajendra Prasad told the complainant that the accused had asked him to
arrange for a vehicle to take her to Air Cargo complex. The complainant accordingly
went to the Air Cargo complex in the car provided by Rajendra Prasad and met the
accused in his office. After some time, the complainant sought permission from the
accused to leave. It was about 5.30 pm, but the accused told the complainant that he
wanted to show her some files at his Sahar Airport office and insisted that she
accompany him there to learn about a particular topic. Accordingly the complainant
accompanied the accused in his official car to Sahar Airport office. On reaching there
the accused appeared to be pre-occupied with work and did not pay any attention to the
complainant nor did he show her the relevant files. At about 6 p.m the complainant
again requested the accused to allow her to leave as she had to go all the way to her
hostel. However, the accused insisted that she should stay on and go through the files as
she would not have another opportunity to do so. The accused then showed her some
files. Shortly thereafter, he got up and went towards the ‘ante room’ and asked her to
follow him to see a particular case the complainant followed the accused into the ‘ante
room’ where the accused switched on the video on a particular case. After the short clip
was over, the complainant got up and told the accused that she was leaving as it was
getting late and she was worried about reaching the hostel. The accused, however,
caught hold of complainant’s wrist and told her to sit down to watch another cassette
and also told her that he would drop her at her hostel. The complainant protested and
tried to get up to leave. However, the accused snatched her handbag, caught hold of her
shoulder, and pushed her down into the sofa saying “seeing a naughty movie will put
you in mood.” Then the accused also got on the sofa and started behaving in a manner
that shocked the complainant, without releasing his grip on her arm, the accused pulled
the complainant closer and brought his arm around her shoulders and kept her pinned

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down and started groping her and misbehaving with her and at the same time telling her
that he found her irresistible and wanted to possess her ever since he first saw her. He
also told her that he found her to be a mixture of innocence and seriousness and having
too much dignity. All this while, the accused continued to misbehave with the
complainant who struggled and pleaded with the accused to let her go. The complainant
started shaking and sobbing uncontrollably. The accused asked her why she was being
so difficult while other lady officers (whose names the complainant did not disclose),
were so ‘dynamic’ and ‘obliging’, the accused offered to give her any foreign goods
from the disposal section. The accused further told the complainant the he thought that
she would know the name of the ‘game’ and further said that he knew that she would
not resist him as he knew women from Bangkok to San Francisco. When the
complainant became upset and started demanding that the accused let her go, he told her
that was sick of her. He gripped her shoulders and shook her. This made her to vomit.
The accused told her to say ‘yes’ or ‘no’. The complainant said no and moved to the
door to get away. She went out of the door and reached the bottom of the stairs to the
exit, the accused followed her, at that time the official car was already at the exit gate.
The complainant tried to get a taxi but the accused insisted on her getting into the car
and almost propelled her into the car. The complainant told the accused that she wanted
to get out of the car, but before she could do so the car was already in motion, suddenly,
the accused changed appearance and became mild and curtly tried to assuage her
feelings. He told her that he would be dropped first at Madh Island and then she would
be dropped at ‘Bhandup’. She protested and told the accused to stop the car. By that
time the car had reached Lela Kempinski Intersection at which point the driver asked
which way he should go and the complainant told him to stop the car and drop her at
that spot itself. However, the accused told the driver to proceed to ‘Ghatkopar’. Within
15 minutes the car reached ‘Ghatkopar’ station. All the while the accused tried to hold
complainant’s hand and explained his behavior. When she quietly brushed aside his
hands, the accused told her that his ego had been hurt, but being a persuasive man he
would not give up and would not take no for an answer. When the car reached
‘Ghatkopar’ station, the complainant immediately opened the door to get down, but was
held back by the accused. He told her that she must give him a reply whether yes or no
by the next day and he would come personally or send his private vehicle to pick her up
from the hostel. He also told her to sleep it over and that she would be in a more
accessible mood the next day. The accused tried to cajole her stating that he was not an

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ordinary collector and would see how far she could go in her career in the department.
The complainant freed her hand and rushed to the railway station and caught the first
train for ‘Bhandup’ where she alighted and almost ran all the way to her hostel. On
reaching the hostel building, the complainant rushed into the room of her colleague
Surjit Bhujbal. It was about 8.45 pm., she was shaking and shivering and too shocked to
speak. She vomited in her colleague’s room. Surjit tried to cool her down and
repeatedly asked her what had happened. After some time she blurted out that the
collector had molested her in his office and described the incident. Surjit advised calling
her husband. Accordingly the complainant accompanied Surjit to a PCO from where she
made a telephone call to complainant’s husband at Hyderabad. The complainant was too
overwhelmed and broke down when her husband came on the line. Thereupon, Surjit
took over and asked the complainant’s husband to come to Bombay immediately.
Thereafter, they returned to the hostel. The next morning, the complainant’s husband
arrived from Hyderabad. He contacted the Director General of customs at his residence
in Delhi on telephone. The complainant narrated the incident to him. Thereafter, the
complainant and her husband contacted other senior officers and narrated the incident to
them. Then, they decided on filing a police complaint. Next day, they met the
commissioner of police and gave a written complaint written by the complainant. The
police, thereafter recorded the statements of the complainant, her husband and others
including her colleague Surjit and Rajendra Prasad, Additional collector of customs.
After completion of the investigation, charge sheet was filed against the accused under
Sections 341, 342 and 354 IPC. The defence of the accused was that he was falsely
implicated by the complainant at the instance of a strong lobby of custom officers. This
loby was envious of his posting. The accused gave different colour to the whole incident
and pleaded that on the day of the incident he went to Sahar Airport cargo complex in
connection with his work. In the evening about 5.30 pm while he was busy discussing
official matters with his officers, he saw the complainant entering his room in the cargo
office. After his work was over about 6. Pm, while returning to his Sahar Airport office
in his official car he gave lift to the complainant and returned to his office. His peon and
sepoy served tea and cold drink to both of them. He was busy in attending his work. He
had some discussions with the complainant who requested him to drop her at her hostel.
He expressed his inability to arrange for a vehicle and asked her to make her own
arrangement. But the complainant insisted on getting a lift in the official car and stated
that she was ready to wait till he finished his work. The complainant also requested the

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accused that she be dropped first at her place, but accused told her that he wanted to get
dropped first as his wife would be waiting for him for dinner, to which she did not raise
any objection. The accused then called his steno and gave him some instructions.
During all this time the complainant was examining the artefacts placed in the room.
She peeped into the antechamber where she came across one cassette and expressed her
desire to watch the said cassette. Accordingly, she viewed the cassette while the accused
disposed of his work. Thereafter, he went outside the office followed by the
complainant. His driver was waiting outside the chamber, he was asked to bring the car.
At that time the complainant requested the accused that she should be dropped first at
Ghatkopar Railway Station. There was heavy traffic when they were going along
Ghatkopar Railway Station. At the suggestion of the complainant she was dropped near
Ghatpkopur Railway Station from where she was to get a train for Bhandup. The
complainant got down from the car, thanked the accused and walked away from the car
towards the station. The trial court observed that from the statement of Rajendra Prasad
recorded by the police, it appears that it was not the accused who insisted on the
complainant going the cargo complex, but it was the desire of the complainant herself to
go to the Sahar cargo complex and on the pretext of getting some clarification, she went
to the office of the additional collector of customs, Rajendra Prasad, who made
arrangement for her transport to the cargo complex. The trial court concluded that the
prosecution deliberately did not examine Rajendra Prasad to deprive the defence of the
benefit of his evidence which would be favourable to the accused. Hence, the trial court
drew an adverse inference and gave benefit of doubt to the accused.86

On appeal to the Bombay High Court, the single Judge disagreed with the trial
court’s conclusions and pointed out that the testimony of Rajendra Prasad could be of
assistance only on the point whether the complainant visited the cargo complex at the
instance of the accused or of her own volition. This was not a part of the basic
prosecution story viz the charge of molestation that took place in the ‘ante chamber’ of
the office of the accused. What transpired at the cargo complex or the reason why the
complainant went to the cargo complex was not material for unfolding the prosecution
case of what actually transpired in the ‘antechamber ‘of the accused. The evidence of

86 Id.. at 3407 para 21.

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Rajendra Prasad could at the most be material only for the purpose of corroborating in
an indirect way the defence case that it was the complainant who wanted to be seen in
the company of the accused so that she could implicate him later on in a false case.
Whether the complainant went to the office of the accused at Sahar Ariport for the
purpose stated by her, or that she went to the cargo complex of her own volition or at
the instance of accused could be of no assistance in corroborating or demolishing the
prosecution case of molestation of complainant by accused in the ‘antechamber’ of his
office at the Sahar Airport.

On the charge of molestation, which allegedly took place in the ‘antechamber’

of the office of the accused, the trial court found that the substantive evidence of the
complainant before the court is not corroborated by the FIR and observed that the FIR
was totally silent on the material aspects and details as given by the complainant in her
evidence before the court. The trial court referred to the FIR where the complainant
stated, “ without releasing the grip he pulled me close and brought his arm around me
and started misbehaving ,the details of which I cannot bring myself to mention now.”
The trial court observed that the complainant was silent on the basic and most important
details constituting the offence under Section 354,IPC. The details of the actual
molestation were not given in the FIR and there was no corroboration from the FIR on
this material aspect of criminal assault by the accused on the complainant. The trial
court further observed that the defence was deprived of an opportunity of pointing out
any contradictions in the prosecution story before the court since no details of the
molestation are given in the FIR on the basis of which the nature of the molestation
could have been ascertained. However, the Bombay High Court held that, to say the
least, the reasoning of the trial court is specious if not perverse . It proceeds on an
assumption that if the complainant had given details in the FIR of the acts constituting
the molestation them this would, as a matter of fact, have resulted in contradictions in
the statement made in the FIR and complainant’s testimony before the court. The High
Court observed that all the facts stated in the evidence of the complainant might not
appear in the FIR. Nevertheless the gist of the actual incident was set out in the FIR. It
must not be forgotten that the complaint was filed by the complainant after consultation
with her husband and the complaint is in the handwriting of the complainant who would
naturally have felt embarrassed to place the lurid details of the assault on her by the
accused in writing. From a perusal of the FIR it would be clear that the complainant was

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overwhelmed with a sense of shame. Clearly she did not want to embarrass herself or
her husband any further. Even in her testimony before the court the complainant has
avoided giving any embarrassing details of the molestation though she has in her
testimony given a more graphic account of how the incident took place than as set out in
the FIR. This by no stretch of imagination can be said to be an improvement made after
obtaining legal advice and deliberation. It must not be forgotten that the complaint itself
was lodged after consultation and obtaining legal advice. The reason given by the
Magistrate for rejecting the evidence of the complainant is wholly unwarranted. The
trial court also reasoned that the complainant not being an ordinary lady and having
completed two years of probationary training, including training in martial arts, would
not have allowed herself to be propelled physically into the car by the accused. And if
she was so badly molested by the accused earlier, she would not have continued to
travel in the car right upto Ghatkopar Railway Station during which time the accused
was holding her hand and patting her thighs, as alleged by the complainant. Further,
since the accused was not the immediate boss of the complainant and did not have any
powers in connection with her posting or training, there was nothing to compel the
complainant to surrender to his wishes. She could have very well asked the driver to
stop the car and get out of the car and taken a taxi to her hostel. The trial court
concluded that the behavior of the complainant after she left the cabin of the accused till
the moment she was dropped at Ghatkopar Railway Station was unnatural since the
complainant did not prevent the accused from his advances even in the car till she was
dropped, when she said ‘thank you’ to the accused. Rejecting the conclusions drawn by
the trial court, the Bombay High Court held, “ the [trial court] in arriving at the above
conclusion has completely misdirected himself by basing his findings on unwarranted
inferences and surmises about the physical training and social standing of the
complainant …. The use of the word propelled may not be a happy expression but it
does not mean that the complainant was bodily lifted and shoved into the car. It does
however, convey the meaning that the attending circumstance gave no time to the
complainant to decide and that she found herself in the car even before she realized it.
Moreover no modest woman would create a scene in front of others, especially the staff
working under the accused who was a high ranking official in the customs department
and also the fact that she had just come out of his cabin. The complainant has also in her
evidence stated that during the travel …. the complainant resisted the advances of the
accused by abruptly pushing his hand. If the complainant said thank you to the accused

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after she was dropped near the Railway station that cannot be held against her … rather
it would show that the complainant was a cultured and well mannered person who did
not want to create an unnecessary scene. The conclusion therefore of the trial court that
the conduct of the complainant was unnatural, needs to be rejected.” The High Court
observed that the very scheme of approach of the trial court to a sensitive and delicate
matter which involves a woman’s privacy has been faulty. The High Court also pointed
out apart from stating his defence in his statement under Sections 313/314 CrPC, the
accused did not examine any witness in support of his defence. He did not produce any
evidence to show why any officer in the customs Department wanted to have him out of
his coveted position. There was nothing brought on record to show that there was any
pervious enmity between the accused and any particular officer in the customs
Department nor was there anything on record to show whether any officer stood to gain
in any way by getting the accused falsely implicated in a charge of molestation, that too
of a woman who had just completed her training as a probationer in the customs
Department. The complainant stated her case on oath before the court, which was
corroborated by her complaint to the police(FIR). However the accused only denied the
allegations and gave his version in his written statement under Section 313 of the CrPC
which was not on oath. The High Court further expressed, “no decent self respecting
woman would allow herself to be used as a tool in the hands of her superiors to falsely
implicate another superior officer in such a serious charge as molestation with a view to
improve her prospects in the organization, especially since the allegations would be
damaging her personal reputation and character” Moreover, there was nothing to show
how the complainant would in any way have personally gained or benefitted by
implicating the accused in such a false charge. Nor was there any evidence to show the
nature of relationship of a particular officer with the complainant enabling that officer to
influence the complainant to such extent as to cause her to file a false complaint
implicating the accused in a serious charge, the natural consequence of which would be
damage to her honour and invasion of her privacy as a woman. The High Court found
the evidence of the prosecutrix/complainant to be credible and unimpeachable, which
required no corroboration. The High Court, therefore, set aside the order acquitting the
accused and convicted him for an offence under Section 354 IPC with the rigorous
imprisonment for 6 months and to pay a fine of Rs 25,000, in default, to suffer further
rigorous imprisonment for 1 month. Thus the gross error committed by the trial court
was rectified by the High Court. This case illustrates the type of sexual harassment

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where a probationer fell to the crafty design of an officer who under the pretext of work
relating to the training, subjected the victim to molestation.

In D.S. Grewal v. Vimmi Joshi87, Respondent I, a female, was employed as a

teacher in an Army Public School. She was subsequently appointed as Principal.
Appellant,(D.S. Grewal) DSG, was the Chairman of the school and the other appellant,
(Hitendra Bahadur) HB, was the vice-chairman. HB, while on official duty at a distant
place, wrote a letter to respondent I expressing that he had “fallen in love with” her.
Apart from admiring Respondent I’s qualities and beauty, HB, concluded the letter with
the following invitation of help to her, “May I extend my hands towards you and hold
your hands tightly and ask you to lean on my shoulder whenever you need me. It will be
a great pleasure.” Respondent I and her father complained to the appellant, DSG, but
DSG did not take any action to redress respondent I’s grievance. Apart from this,
respondent I also alleged that HB was making advances towards her.

Despite her complaints to the management, no Complaints Committee was

constituted to address her complaint. The management pressured her to withdraw her
complaints. Finally, when she didnot withdraw her complaints, the management
terminated her services on the basis of two anonymous complaints. The complainant
challenged her termination, alleging sexual harassment as one of the grounds, the High
Court held that it was a clear cut case of sexual harassment and therefore directed army
authorities to take disciplinary action against appellant’s DSG and HB. The Supreme
Court observed that the school authorities had not constituted a complaints committee
as directed in Vishaka’s case, to look into the grievance made by respondent I.

Before the High Court, the appellant, inter alia, contended:

(i) That the order of termination has nothing to do with alleged sexual harassment..

(ii) Writing a letter was merely appreciable in nature and by reason thereof no sexual
harassment was caused by HB

87 (2009) 2SCC 210

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(iii) HB has nothing to do with the management of the school and that the letter having
been sent from Sonamarg cannot be said to have any sexual harassment at the
workplace of the first respondent..

The High Court held, “Therefore, the Secretary, Ministry of Defence,

Government of India and the Chief of the Army staff are directed to take disciplinary
action against these two officers, as the case of sexual harassment is evident from the
contents of the letter and the admission by both the officers followed by the termination
of the petitioner.” The High Court passed this order in view of the law laid down by the
Hon’ble Apex Court in Vishaka v. State of Rajasthan88.The High Court further directed,
“The progress of the disciplinary action so taken in such a serious matter which may
even warrant the court martial proceedings of these two officers shall be submitted
before this court within a period of 2 months from the date of production of the certified
copy of this order.”

When this matter reached the Supreme Court on appeal, the Court placed on
record that a first information report was also lodged against respondent I by the school
management alleging financial irregularities. After investigation carried out in this
behalf, a final report was submitted exonerating her and the report has been accepted by
the Chief Judicial Magistrate, Pithoragarh by an order dated 13.2.2006.

The Court reaffirmed the Vishaka definition and held that it is a matter of great
regret that the Army which is a disciplined organization failed to provide a complaint
mechanism and ignored the decision of this court which was bound to be given effect to
in terms of Article 144 of the Constitution of India. A Complaints Committee as per
Vishakha [sic] was constituted for the other teachers and the staff but evidently no
complaint committee was constituted for entertaining a complaint of this nature89.

However the Supreme Court observed that the High Court could not have
claimed that it was a clear-cut case of sexual harassment of the petitioner without a
proper enquiry. The Court directed that, as no Complaints Committee had been
constituted, which was imperative in character, the High Court should appoint a three-

88 (1997) 6 SCC 241: AIR 1997 SC 3011

89 Id.. at 213 para 24.

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member committee headed by a woman, and, in the event that it is found that the writ
petitioner was subjected to sexual harassment, a report may be sent to the Army
Authorities for initiation of a disciplinary action against the appellants on the basis of
such a finding. All the expenditures that may be incurred on this behalf were ordered to
be borne by the Army Authorities90. Thus the Supreme Court exemplified the limited
compliance of the Vishaka guidelines in the country as even after a span of 11 years of
its pronouncement, no complaint committee has been constituted in a number of
organisations. However, the Supreme Court sounded a word of caution in deciding the
cases of sexual harassment as it left a caveat at the doors of subordinate judiciary and
directed the High Court to get the matter to be enquired first by the complaint
committee and then decide accordingly.

In sexual harassment of women at workplace, the judiciary’s role has been

commendable as it has filled up the void by creating a law through creative
interpretation where legislature has remained silent. However, the judicial
pronouncements howsoever encouraging cannot be a substitute for the legislative
enactment. The problem having escalated over the years needs comprehensive
legislation through proper policy planning based on the pragmatic approach.

90 Id.. at 213 para 26.

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