Precedence and Legislation

By Maryam
Introduction

The term ‘legislation’ is derived from Latin words, “Legis” meaning law and “Latum” which
means “to make” or “set”. Thus, the word ‘legislation’ means ‘making of law’. Salmond defines
legislation as that source of law ‘which consists in the declaration of legal rules by a competent
authority’.

According to Salmond:­ “In a loose sense, it includes merely reported case law which may be cited
and followed by courts. In a strict sense, that case law not only has great binding authority but
must also be followed. In all precedents is the authority of past decisions for future cases. It must
be reported, cited, and followed by courts”. In simple words, judicial precedent refers to previously
decided judgments of the superior courts, such as the High Courts and the Supreme Court, which
judges are bound to follow. This binding character of the previously decided cases is important,
considering the hierarchy of the courts established by the legal systems of a particular country. In
India, this hierarchy has been established by Article 141 of the Constitution of India.

According to legal theories promulgated by several theorists, a precedent is established in addition

to the already existing legislations. However, in the landmark case of Vishakha & Others V State
of Rajasthan in 1997, the guidelines set by the Supreme Court were the key concepts based on
which the government later passed the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.

Vishaka and Ors. v. State of Rajasthan and Ors, 1997

Bench: Chief Justice, Sujata V. Manohar, B. N. Kirpal

During the 1990s, various women’s organizations led by Naina Kapoor and her organization
Sakshi, filed a Public Interest Litigation (PIL) against the State of Rajasthan and the Government
of India to enforce ‘the fundamental right of working women’ under Article 14, 19 and 21 of the
Indian Constitution in the Supreme Court after Bhanwari Devi, employed under the Women
Development Program, an initiative the Rajasthan State Government, was gang raped by the
landlords of the Gujjar community after she tried to stop a child marriage as part of her duties, did
not get justice from the Rajasthan High Court and her rapists were allowed to walk free.

Before the apex court’s landmark ruling in this case, there were no formal guidelines for how an
incident involving sexual harassment at workplace should be dealt by an employer. Women
experiencing sexual harassment at workplace had to lodge a complaint under Section 354 of the
Indian Penal Code that deals with the 'criminal assault of women to outrage women's modesty' and
Section 509 that punishes an individual or individuals for using a 'word, gesture or act intended to
insult the modesty of a woman'. These sections left the interpretation of 'outraging women's
modesty' to the discretion of the police officer.

This case brought to the attention of the Supreme Court of India, "the absence of domestic law
occupying the field, to formulate effective measures to check the evil of sexual harassment of
working women at all workplaces." In 1997, the Supreme Court delivered a landmark judgment
laying down guidelines to be followed by establishments in dealing with complaints about sexual
harassment. The court decided that the consideration of "International Conventions 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 against
sexual harassment implicit therein."

The court also defined sexual harassment as including such unwelcome sexually determined
behavior (whether directly or by implication) like physical contact and advances, a demand or
request for sexual favors, sexually colored remarks, showing pornography, or any other
unwelcome physical verbal or non-verbal conduct of sexual nature. The court recognized that
where any of these acts is committed in circumstances where under the victim of such conduct has
a reasonable apprehension that in relation to the victim’s 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. The court noted
that it was discriminatory when the woman has reasonable grounds to believe that objecting to
sexual harassment would disadvantage her in connection with her employment or work including
recruiting or promotion or when it creates a hostile work environment. Thus, sexual harassment
need not involve physical contact. Any act that creates a hostile work environment — be it by
virtue of cracking lewd jokes, verbal abuse, circulating lewd rumors etc. — counts as sexual
harassment. The creation of a hostile work environment through unwelcome physical verbal or
non-verbal conduct of a sexual nature may consist not of a single act but of pattern of behavior
comprising many such acts.

Noting that in some cases, the psychological stigma of reporting the conduct of a co-worker might
require a great deal of courage on the part of the victim and they may report such acts after a long
period of time. The guidelines suggest that the compliance mechanism should ensure time-bound
treatment of complaints, but they do not suggest that a report can only be made within a short
period of time since the incident occurred. Often, the police refuse to lodge FIRs for sexual
harassment cases, especially where the harassment occurred some time ago.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,

2013

The judgement, however, only proposed guidelines to alleviate the problem of sexual harassment
in 1997. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 (“Prevention of Sexual Harassment Act” or “POSH”) was enacted based on the
guidelines proposed in the judgement for the same in 2013 by publication in the Gazette of India,
majorly featuring-

• The Act defines sexual harassment at the workplace and creates a mechanism for redressal
of complaints. It also provides safeguards against false or malicious charges.
• The Act also covers concepts of 'quid pro quo harassment' and 'hostile work environment'
as forms of sexual harassment if it occurs in connection with an act or behavior of sexual
harassment.
• The definition of "aggrieved woman", who will get protection under the Act is extremely
wide to cover all women, irrespective of her age or employment status, whether in the
 organized or unorganized sectors, public or private and covers clients, customers and
domestic workers as well.
• An employer has been defined as any person who is responsible for management,
supervision, and control of the workplace and includes persons who formulate and
administer policies of such an organization under Section 2(g).
• While the "workplace" in the Vishakha Guidelines is confined to the traditional office set-
up where there is a clear employer-employee relationship, the Act goes much further to
include organizations, department, office, branch unit etc. in the public and private sector,
organized and unorganized, hospitals, nursing homes, educational institutions, sports
institutes, stadiums, sports complex and any place visited by the employee during the
course of employment including the transportation. Even non-traditional workplaces which
involve tele-commuting will be covered under this law.
• The committee must complete the inquiry within 90 days (about 3 months). On completion
of the inquiry, the report will be sent to the employer or the District Officer. They are
mandated to take action on the report within 60 days (about 2 months).
• Every employer is required to constitute an Internal Complaints Committee at each office
or branch with 10 or more employees. The District Officer is required to constitute a Local
Complaints Committee in each district, and if required at the block level.
• The Complaints Committees have the powers of civil courts for gathering evidence.
• The Complaints Committees are required to provide for conciliation before initiating an
inquiry, if requested by the complainant.
• The inquiry process under the Act should be confidential and the Act lays down a penalty
of Rs 5000 on the person who has breached confidentiality.
• The Act requires employers to conduct education and sensitization programs and develop
policies against sexual harassment, among other obligations. The objective of Awareness
Building can be achieved through Banners and Poster displayed in the premises, eLearning
courses for the employees, managers and Internal Committee members, Classroom training
sessions, Communication of Organizational Sexual Harassment Policy through emails,
eLearning or Classroom Training. It is recommended that the eLearning or Classroom
Training be delivered in the primary communication language of the employee.
 • Every organization must file an Annual Report to the District Officer every calendar year
as prescribed in the Rule 14 of the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Rules, 2013.
• Penalties have been prescribed for employers. Non-compliance with the provisions of the
Act shall be punishable with a fine of up to ₹ 50,000. Repeated violations may lead to
higher penalties and cancellation of license or deregistration to conduct business.
• Government can order an officer to inspect workplace and records related to sexual
harassment in any organization.
• Under the Act, which also covers students in schools and colleges, patients in hospitals,
employers and local authorities will have to set up grievance committees to investigate all
complaints. Employers who fail to comply will be punished with a fine of up to 50,000
rupees.

Conclusion

The Supreme Court has regularly interpreted statutes in a manner which preserves their
constitutionality. In the forementioned case, the Supreme Court held that when the enforcement
of fundamental rights is concerned, the Supreme and High Courts do not have to await action by
the legislature. Despite legislature preceding precedent being the norm, it is not always necessary.
Rather, it depends on the lawmakers, the circumstances and the need of the hour. Indian legal
system is based on a balanced mix of variety of theories from across the world and this is but one
way it is exhibited.