Sexual Harassment At Workplaces : Supreme Court Refuses To Entertain PIL Seeking Directions To Protect Complainants/Witnesses From Retaliation

The Supreme Court on Friday refused to entertain a Public Interest Litigation (PIL) seeking to issue directions to protect complainants/witnesses/other persons in cases of complaints of sexual harassment from acts of retaliation/victimization by the accused persons or concerned organizations. A PIL filed by the same petitioner with the same prayer was refused to be entertained by the Supreme Court in February 2020, leaving open the remedy of submitting a representation to the Government.. 

A bench comprising CJI DY Chandrachud and Justice PS Narasimha remarked that the petitioner had to show specific instances where complainants/witnesses/other persons in cases of complaints of sexual harassment were being harmed by acts of retaliation/victimization by the accused persons. The bench also noted that passing of a general order would result in the creation of a new offence. 

CJI DY Chandrachud, while hearing the plea said–

"You should get us some examples etc. Your earlier SLP petition was also dismissed."

Justice PS Narasimha added–

"It will be like creation of a new offence. There has to be some instance."

The petitioner's counsel submitted that the Central Government has issued guidelines to protect complainants from retaliatory measures; however, the private sector has been left untouched. However, the Court stated that it is not inclined to entertain the matter, but gave the petitioner liberty to approach the authorities for a decision.

Dictating the order, CJI Chandrachud said–

"This court by its order dated Jan 6, 2020 had not interfered with the Delhi High Court dismissing a PIL for the same prayer. The petitioner stated that she made a representation to the authorities with a reminder. We leave it open to petitioner to approach the authorities so that a decision can be taken if the grievance needs to be looked into. Let the grievance be looked at an appropriate level."

The issue first arose when the petitioner Sunita Thawani sought the following reliefs from the Delhi High Court–

1. Suitable amendments should be made to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, so as to include retaliation/victimization as a facet of sexual harassment and to provide for measures for protection of women who have complained of sexual harassment/witnesses/those involved in the inquiry process, including those making an allegation (whether express or not) that some person has contravened the Act and/or committed an act of sexual harassment from such victimization/retaliation;

2. Directions should be issued to provide for measures for protection of women who have complained of sexual harassment/witnesses/those involved in the inquiry process, including those making an allegation (whether express or not) that some person has contravened the Act and/or committed an act of sexual harassment from such victimization/retaliation till such time as suitable amendments to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 are not made.

The Delhi High Court had dismissed the plea observing that it effectively seeks creation of a new category of offence in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, i.e., an offence of retaliation/victimisation. It had said–

"Retaliation, or victimization, are only the provocation for an act of assault. If an act of assault amounts to sexual harassment, it would anyway be punishable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. If it does not, it cannot be punishable under the said Act, as the act deals with only offences of a sexual nature, and an offence, which does not lead to sexual harassment, can obviously find no place therein."

The petitioner approached the Supreme Court against this order in 2020. However, the same was dismissed by the Apex Court. While disposing the SLP, the bench of Justices R. Banumathi and AS Bopanna, granted liberty to the petitioner to work out her remedy in accordance with law including by making representation before the concerned authorities.

Case Title: Sunita Thawani v. Union Of India And Anr. W.P.(C) No. 644/2023 PIL-W

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