“By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach
such persons evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakuta v. Kelly (1989) 167 C.L.R. 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party witness , or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.”
33. The Court of Appeal judgment in Locabail (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient.
34. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom - In the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case (supra).”
50. In view of the Commission’s ambiguity about participation of its member in the press conference, held by an NGO on the issue, and whether that member participated in the Committee’s proceeding, the Court is constrained to conclude that had there been no such participation, the pleading would have been clear and categorical. The silence of the Commission is significant; the Court concludes that there is a strong probability of participation of such member in the inquiry, impugned in this case, sufficient to hold it to be improper
51. The second aspect to the question concerns correctness and legality of the procedure followed by the Commission. The common complaint of the DPS Society and Verma in this regard are that the Commission’s report and findings are tainted since they were not preceded or followed by principles of natural justice. The fairness of the procedure adopted by the Commission has been impeached It is contended that copies of the complaints were not given to the Verma despite written request. He was not permitted or called upon to participate in the proceedings and charges were never communicated to him. It is alleged that no evidence or papers received by the Commission during the proceedings were made availableto those accused and cross-examination of the witness was not permitted. It is further alleged that the teachers and
the staff members of the School who wished to depose in Verma’s support were not permitted to do so. It is also alleged that though the DPS Society’s Chairman was examined, the Commission should have in all propriety awaited the decision of the Vishakha’s Committee set up by DPS Society, rather than rushing through its report and
52. On the factual aspects it is contended that the Commission ignored the final report of the local police, which closed the issue and also the correspondence of the complainants who had resigned or left the service, which clearly indicated that at the relevant time they did not ever voice the grievance of the kind, they later chose to
complain against before the Commission. The Commission also ignored the service records of those teachers and the previous unblemished reputation of Verma.
53. It is alleged that the Commission fell into error in excessively relying on the Kamla Chaudhry’s report even though the DPS Society in its meeting chose to discard it - a meeting in which Dr. Kamla Chaudhry herself was a participant. The DPS Society also places reliance upon Minutes of that meeting and contends that the said Kamla Chaudhry report was conjectural, as it did not ever record the statement of any witness or even involve Verma in its proceedings.
54. The Commission‘s report has been annexed. Although both DPS Society and Verma alleged that there were two reports, what is clear from a reading of the two documents that one is a draft, and the other is the actual report, which was published and sent to the concerned parties. The report has dealt with in detail the kind of behaviour, which the teachers complained against under a separate heading “sexual advances” and recounted each incident and remark alleged by the teachers. In the section “The investigation”, the Commission mentions having taken suo motu cognizance on the complaint of one of the teachers dated 19.11.1999 as well as on the other instances of sexual harassment. It states that the DPS Society was asked to investigate in to the matter and proceed to discuss her report, dated 17.2.1999. The Commission states that the report was never disclosed to it. It thereafter states that Dr. Kamla Chaudhry affirmed her observations. The relevant part of the report is as follows:
“Dr. Chowdhry in her deposition before this Commission on 25.5.99 reaffirmed her findings. She was constrained to note: “As I interviewed the victims, they were slowly able to open up and I began to realize that there was much more behind what they were saying. I started asking for the people who had recently left the
school to find out what made them leave. Another three or four cases with very explicit description of sexual harassment were narrated to me”. Dr. Chowdhry expressed deep concern at the tardy response of the Management to the unsavoury situation. Dr. Chowdhry’s deposition is exemplary of a concerned and committed office-bearer who, regardless of the immediateconsequences of this unfortunate situation, was worried about the larger and long term welfare of the students and reputation of the school.
That the recommendation for a strong and urgent action coming from an office-bearer of the society had failed to stir the management committee from its complacency for almost two months has shocked the NCW. This despite the active intervention of NGO’s IFSHA/SAKSHI who filed a further complaint dated 9.4.99 on behalf of the teachers/complainants urging DPS (F) to comply with the established law of India as set out in Vishaka judgment in which the Hon’ble Supreme Court of India formulated mandatory guidelines proscribing Sexual Harassment “for observance at all work places or other institutions, until a legislation is enacted for the purpose.”
55. The Commission thereafter stated that a press conference was held on 13.05.1999 in which the NCW Member and several NGOs were present; it states that none of them were aware of the composition of the sexual harassment committee set up by the Society - an obvious reference to the Vishakha’s Committee set up by the Society on 20.04.1999.
56. According to the Commission, neither the composition of the Vishakha Committee nor the terms of its reference were notified to the concerned persons i.e. the complainants despite two letters requesting such information. In the circumstances, the teachers declined to depose before the Vishakha Committee set up by the School. The Commission, therefore, concluded that both requests were in line by the Vishakha’s ruling by the Supreme Court, which specifically provided for the victims advocates in
such cases. It also concluded that the teachers’ request was perceived negatively and no effort was made to render the process transparent.
57. As far as the procedure adopted by the Committee is concerned, the report mentions that summons were issued to the Chairman for the hearing dated 25.05.1999. He did not appear despite two summons and thereafter finally attended the proceedings on 22.06.1999 and deposed before the Commission. As to Verma’s response, the following extracts of the Commission’s report would be relevant: -
“He refused to accept the first summon. IN response to the second, he again failed to appear but wrote to the Committee that he would appear only after getting a copy of the complaint filed against him. It is a matter of record that a copy of the complaint had been forwarded to the DPSS in November 1998 and acknowledged by them in January 1999. It defies common sense that despite the fact that the Kamla Chowdhry Committee inquired into the matter on the basis of this very complaint, that he as the principal accused should not have got a copy of it from his own employer. If his claim that he was not aware of the complaint is true, then it is a matter for conjecture how he defended himself before the Kamla Chowdhry Committee? Obviously this was his move to deflect the Commission's efforts to get to the truth, to delay the investigations, and to avoid deposing on oath before the National Commission for Women.
When he finally appeared on June 10, instead of co-operating with the investigation, Mr. Verma entered into an argument with Members for a copy of the complaint. Finally, in its wisdom the Committee allowed him to inspect the file on the following day and asked him to appear for deposition on June 14. Mr. Verma did turn up on June 11 to inspect the file, but failed to turn up for investigations and instead sent a medical certificate of illness, which advised rest for seven days with effect from 14th June. The Commission would like to note and place on record that Principal Verma has feigned illness and through this certificate lied to the Commission. He has appeared before the DPS Sexual Harassment Committee during those very seven days. This has been conveyed
to us by no less a person than the Chairman of the DPSS and the Chairperson of the DPS Sexual Harassment Committee. The NCW is also deeply concerned whether his attending doctor at the Sun Flag Hospital has acted with the requisite professional ethics? Mr.Verma was finally summoned to appear before the Committee on June 28th. It appears, however, that after “recovering” from his illness he has speedily left the town and no summons could be served on him.
The Commission is constrained to infer from the above that the failure of Principal Verma to testify before it, reaffirms its belief that he places himself beyond the scope of the law and outside the purview of authority of the NCW. Such disregard smacks of irreverence towards the seriousness of the issue at hand. We wish in this report to correct for future, such wrongful assumptions on the part of all individuals, institutions and authorities that the Commission’s functions and authority could be taken lightly. We also wish to place on record our dismay at the irresponsibility displayed by a person who holds high office of the head of an educational institution of supposed high standing. Principal Verma’s blatant disregard of the Commission’s status and powers is shameful example for the institution he professes to lead.”
The Commission appears to have (through its four-member Committee) examined two senior members of the school faculty whose names were withheld for reasons of confidentiality. The report mentions their depositions and extracts it in the following terms: -
“Despite the circumspect attitude and professional ethics evident in both the depositions there is some conclusive evidence of the Principal’s propensity to sexually and administratively harass women teachers.
We have quoted selectively from their depositions:
“There was no case of harassment but his behaviour did show some biases to some people. His preferential treatment was not on the basis of professional competence of that person but due to personal preference.”
“In 1995 when I joined I use to find COSMOPOLITAN magazine on his table with obnoxious covers, I used to turn them upside down”
“He can destroy the teachers if they don’t act according to his wishes. Sections of parents will not come out due to fear and desire for favours …. He has his own way of handling the parents.”
“Working conditions/environment were so vitiating that it was impossible for me to work with him”.
When asked whether Shayista reported any incident of sexual harassment, it was stated: “There was something she told me and I advised her not to go into the Principal’s office alone, nothing beyond. I do not remember the words.”
“When asked whether the Principal was in the habit of touching frequently, the answer was “In a friendly manner he used to put his hands on the shoulders. Teachers never complained of it. They never felt offended.”
When asked whether the girls in the school ever complained about the Principal’s behaviour. “I don’t know about that. Some girls find Verma’s behaviour very different.”
“There is terror in the environment”.
These significant observations made by senior teachers in their very guarded statements, give an insight into the Principal’s psyche and his ability to manipulate his dealings with women who were in a subordinate position and incapable of protesting.”
58. The Commission’s report also disclosed that Ms. Sharda Nayak, Member of the DPS Society and Chairperson of the Vishakha Committee was examined. She conceded not having informed the teachers about the compositions of the Committee and also stated that she was asked to share the information with the teachers. The report expresses its concerns that the Society did not follow the Vishakha’s directives since
5/6th of the membership belonged to the DPS Society and the lone outsider was not
from any NGO and not an expert in matters of sexual harassment.
59. An overall analysis of the report reveals that the Committee set up by the Commission attempted to follow the fair procedure. It did summon the Principal i.e. Shri Verma - four summons were issued. Apparently Verma did attend the office of the Commission and even sought for copies of the documents. The Committee’s approach was that he had no right to secure such copies; it, however, permitted inspection to him. Similarly, it recorded the depositions of the Chairman of the DPS Society, considered Dr. Kamla Chaudhry’s report and also recorded the depositions of other teachers working in the School and even the deposition of Ms. Sharda Nayak, who headed the Vishakha Committee set up by the School. In view of the previous finding of this Court that the Commission does not possess adjudicatory powers, the approach and procedure adopted by it cannot be termed as unfair or illegal. If one considers that the limited role of the Commission, which certainly extends to taking suo motu cognizance of the complaints including individual complaints having regard to the gravity of the allegations, one must recognize that the powers under Section-10 particularly sub-section 4 are sufficiently wide to enable it to at least enquire into such concerns. As a
statutory body it is expected to follow a fair procedure. It is now established that “fair procedure” is not a rigid incantation of inflexible content.
60. The procedure to be adopted by the concerned agency or authority has to necessarily yield to the nature of the enquiry and the powers, which it exercises. As it has been held that the Commission does not possess adjudicatory powers, what it is entitled to enquire into are the matters outlined in Section-10. This may also, in certain circumstances, extend to enquiring into individual complaints, the Court is of the opinion that the procedure to be adopted in such cases has to be a broadly fair one,
which should consider the view points of the concerned parties. This finding is consistent with the holding in Vishakha since the adjudicatory function, of determining whether sexual harassment at the work place occurred (a species of aggravated misconduct, but misconduct nevertheless) is that of the domestic tribunal, to be set up by the employer. Therefore, the Commission’s role in enquiring into such cases has to conform broadly with the concern that Vishakha is to be followed and nothing further. In doing so, the Commission should satisfy itself that certain essential elements are present, i.e. whether there are complaints; whether such complaints have been disclosed to the employer; whether the employer has taken remedial measures, and so on. It may become necessary for the Commission to look into the nature of the remedial action and while doing so to meet the kind of allegations leveled. Yet its statutory
mandate has to be scrupulously adopted and at the highest it may bring to the notice of the authorities and the employer, the perceived shortfalls, if any, without commenting in detail on the merits of the allegations. The procedure followed by the Commission, in this case if one were to keep in mind its statutorily assigned role, as explained in the judgment - cannot be faulted; it was fair, in the circumstances of the case.
61. In view of the above discussion, it is held that the Commission’s report to the extent it adjudicates upon the complaints and proceeds to list out its recommendations in the manner it has done cannot be sustained. At the same time, it is also held that the Commission followed as fair a procedure as was warranted in the circumstances of the case.
Point No. 2
Vishaka in context – sexual harassment at the workplace a form of discrimination
62. Sexual harassment of working-women was first conceived as a special type of wrong entitled to legal remedy in the United States, thirty years ago by Catharine
MacKinnon in an article, Sexual Harassment of Working Women (New Haven: Yale University Press, 1979). She made a perceptive argument that sexual harassment constitutes sex discrimination under Title VII of the 1964 Civil Rights Act. Congress had enacted Section 703, Title VI of the Civil Rights Act, 1964, to address the issue of sexual harassment at the workplace. This provided the basis for civil action, and was rapidly assimilated into the wider discourse of discrimination, in the US (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57). In Harris v. Forklift Systems, Inc. (1993), 510 U.S. 17, it was held that:
"When the workplace is permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment, Title VII is violated."
63. In Joseph Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998) the US Supreme Court (judgment delivered by Justice Scalia) even held that behavior deemed offensive could cover same sex intimidation, ridicule, or other abusive conduct. While on the subject, it would be interesting to note that the general perspective, which the courts often adopt, in the United States is not the standard of a “reasonable man” but the standard of a “reasonable woman” (Ref. Ellison v. Brady, (1991) 9th Circuit, 924 F.2d, 872):
“we believe that in evaluating the severity and pervasiveness of sexual
harassment, we should focus on the perspective of the victim. Courts “should
consider the victim’s perspective and not stereotyped notions of acceptable
behavior.”…Conduct that many men consider unobjectionable may offend many
women…. Men tend to view some forms of sexual harassment as “harmless social
interactions to which only overly-sensitive women would object”; the
characteristically male view depicts sexual harassment as comparatively harmless
We realize that there is a broad range of viewpoints among women as a group,
but we believe that many women share common concerns which men do not
necessarily share. For example, because women are disproportionately victims of
rape and sexual assault, women have a stronger incentive to be concerned with
sexual behavior. Women who are victims of mild forms of sexual harassment may
understandably worry whether a harasser’s conduct is merely a prelude to violent
sexual assault. Men, who are rarely victims of sexual assault, may view sexual
conduct in a vacuum without a full appreciation of the social setting or the
underlying threat of violence that a woman may perceive. One writer explains:
“Their greater physical and social vulnerability to sexual coercion can make
women wary of sexual encounters. Moreover, American women have been raised
in a society where rape and sex-related violence have reached unprecedented
levels, and a vast pornography industry creates continuous images of sexual
coercion, objectification and violence….Because of the inequality and coercion
with which it is so frequently associated in the minds of women, the appearance
of sexuality in an unexpected context or a setting of ostensible equality can be an
In order to shield employers from having to accommodate the idiosyncratic
concerns of the rare hyper-sensitive employee, we hold that a female plaintiff
states a prima facie case of hostile environment sexual harassment when she
alleges conduct which a reasonable women would consider sufficiently severe or
pervasive to alter the conditions of employment and create an abusive working
environment….Of course, where male employees allege that coworkers engage in
conduct which creates a hostile environment, the appropriate victim’s perspective
would be that of a reasonable man….
We note that the reasonable victim standard we adopt today classifies conduct as
unlawful sexual harassment even when harassers do not realize that their
conduct creates a hostile working environment…. To avoid liability under Title VII,
employers may have to educate and sensitize their workforce to eliminate
conduct which a reasonable victim would consider unlawful sexual
harassment….If sexual comments or sexual advances are in fact welcomed by the
recipient, they, of course, do not constitute sexual harassment. Title VII’s
prohibition of sex discrimination in employment does not require a totally
desexualized work place….
We cannot say a matter of law that Ellison’s reaction was idiosyncratic or hyper-
sensitive. We believe that a reasonable woman could have had a similar
reaction…. A reasonable woman could consider Gray’s conduct, as alleged by
Ellison, sufficiently severe and pervasive to alter a condition of employment and
create an abusive working environment….”
64. Several other countries have drawn up laws against sexual harassment, oftentimes based on substantially different models of unwelcome and objectionable sexual behavior, deemed to be harassment than the ones that underwrote MacKinnon’s understanding, and U.S. law (Australia enacted the Sex Discrimination Act 1984; the United Kingdom enacted the Sex Discrimination Act, 1975, and also framed the Sexual Discrimination and Employment Protection (Remedies) Regulations, 1993).
65. Article 15(3) of the Constitution enables the State to legislate special provisions, or frame policies to inter alia, address gender specific concerns. There are gender specific laws, to foster good practices in the work place, and ensure gender equality (special provisions in the Factories Act, the Maternity Benefit Act, the Equal Remuneration Act, etc). Yet, the legislative vacuum and lack of clarity in statute law to address the problem of sexual harassment at the workplace, was recognized in Vishaka, where the Supreme Court formulated guidelines that would govern the field, till appropriate legislation was initiated and brought into place. The Supreme Court, in Vishaka, recollected the Convention on the Elimination of All Forms Discrimination Against Women, adopted by the General Assembly of the United Nations, in 1979 and the resolution of the Committee on the Elimination of Discrimination against Women (CEDAW), -set up under the Convention,- adopted in January 1992 i.e. the General Recommendation No. 19 on violence against women.
66. It has now been 12 years since the declaration in Vishaka; no legislative framework is however, in sight. Its subsequent application, by the Supreme Court, in the Apparel Export Promotion v. A.K. Chopra AIR 1999 SC 625, establishes the binding nature of the declaration, and its universality to the workplace (the court even recognized that ‘physical contact’ is not an essential feature of sexual harassment). That sexual harassment at the workplace is an unacceptable behavior, by employers and co-employees alike, is now an established part of the judicial and legal lexicon. Whenever
found, the perpetrator is expected to be dealt with through suitable sanctions. Vishaka, and its guidelines – that are to be adhered to in establishments, are aimed at ensuring a workplace safe from sexual harassment, and protection of female employees from hostile circumstances in employment, on that account. The elaborate guidelines, evolved and put in place were a sequel to the court's declaration of law that such gender based unacceptable behavior had to be outlawed, and were contrary to Articles 15(1) and 21 of the Constitution of India
67. Whenever such complaints of harassment arise, it is expected that the authority – be it employer, regulator (of private enterprise, or agency, against which such complaint is made) is alive that such are outlawed not only because they result in gender discrimination, of the individual aggrieved, but since they create and could tend to create- a hostile work environment, which undermines the dignity, self-esteem and confidence of the female employees, and would tend to alienate them. The aim of the Vishaka was to ensure a fair, secure and comfortable work environment, and completely eliminate possibilities where the protector could abuse his trust, and turn predator, or the protector-employee would insensitively turn a blind eye.
68. At this stage, the relevant portions of Vishaka, setting out the guidelines to be followed by employers, are usefully extracted:
“It is necessary and expedient form employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women :
1. Duty of the Employer or other responsible persons in work places 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 behaviour (Whether directly or by implication) as :
a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non - verbal conduct of sexualnature.
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 by visited if the victim does not consent to the conduct in question or raises any objection thereto.