Poornima J M vs the Superintendent of Post Offices Chikmagalur and Others

Two gods, two gods, And each his solemn hail. And each his ponderous throne. And each his lamps, his gifts. And one may worship one, - The other not at ail. Or hate the one And love the other much. Or fear th,e one too much. The other not enough. But to fear both. Or to love both. Or not to love or hate, -

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That may not be. For so 'tis willed by both.

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Two gods upon their ponderous thrones, Each silent in his giant hall.

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Theodore Dreiser

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these lines of Theodore Dreiser expressed our dilemma when we heard thd four cases together with all its manifestations but with a common thread of sexual harassment running through them. Since the consequences of sexual harassment were the ultimate issue in all these cases, we heard it I together even though in different Benches, but we are striving to lock together ! our thought process to be able to reach a common diagnosis. The persistent dilemma in these cases is of course, as Dresier had elementally pointed out, I which god to pay obiesance to. What is the subtle difference between gender equity and gender equality and to what extent our Constitutional process is amenabid to a pervation of these two matrixes and the requisite requirement of not pervejrting the matrix by over inpact. Hence a delicate balance needs to be I achieved.

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These, in turn, bring us to an element of adjudicatory and justice delivery system. The word 'adjudicatory process' in Anglo-Saxon Law varies in I degree with respect to the cause, effect and consequences, as for the most minor disputes of possession and engagement to the major disputes conflicting

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between opinions which may fall within the adjudicatory process. Keeping in mind these wide disparities, ail over the world, the process has been so fashioned so that even though uitimate justice is secured through an adversarial process with equal emphasis given to both or several parties to the dispute. It was ensured and assured that these equally important ciauses in the concept will produce the effect of equality of consideration among them regardless of the status and stature of the contestants.

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To elucidate and iiiustrate the matter further, we propose to give a brief description of the four cases together so that the difference between the composition and the thread running though them can be appreciated more objectively.

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The first one we have chosen is the case fiied by Mrs. Poornima Jain, an employee in the Postal Department. She alleges that she is a GDS Post Master and whiie so, one Sri Palaniswami made threats to iife against her and forced her to stay with him in his government aliotted quarters in a time frame of one to two years and started to rape her regularly. The study reports that more than an year prior to her appointment they were iiving together. When the applicant brought the matter to the notice of Superintendent of Posts, Shri Koragappa aiso she alleges that, started molesting her. While so, she filed a police complaint and a compiaint was sent to the discipiinary authority. She wouid say that the departmental authorities advised her caution and therefore she was forced to request a change of a committee member appointed as per the Vishaka ruling.

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Apparently, the committee advised her transfer based on the set and on her request, tipe respondents transferred her to Hassan Division. She would say that these werb against the guidelines given by the Apex Court in Vishaka's Case, as reported in AIR (1997) 6 SCC 214. We had asked for a report from the Police I and the respondents were allowed to file a reply. I

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The respondents would say that the applicant made a police complaint on 22/01/2013 alleging sexual harassment by one 8. Palaniswamy and one A.KoragafDpa. She had also filed a representation before the Secretary, Department of Posts and the copy was endorsed to 17 officers and dignitaries, which were apparently simultaneously done, probably to put pressure for compliance which was forwarded to the respondents for action. It was referred to the Sekual Harassment Committee for inquiry vide order dated 22/02/2013. Apparently, the Committee examined 2 respondents, 39 witnesses and 54 documents were examined, and gave a recommendation that Palaniswamy should be awarded with one of the major penalties and appropriate action should be taken against Koragappa and the complainant Poornima Jain may be given a transfer out of Chikamangalore.

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It is found that the hearing of the Committee took a little time and the respondents could not be questioned since following the police compiaint of sexuai harassment, ! Paianiswamy was send to judiciai custody for more than six months. I I

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The applicant had been allegedly in a relationship with the respondent for a period of nearly 2 years or more. The case of the applicant seems to be that the party respondent Palaniswamy had promised her that he will get her the

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current erinployment if she would commence physical relationship with him and ! on her agreement, and after living with him for about more than an year he got her the job and she was residing with him . But after 2 years, she found that he was thinl<ing of marrying another woman and she felt compelled to give a complaint as somewhere along the line, hope began to rise in her that he might marry hetj and thereafter they may continue their life together as husband and wife. She therefore has twin allegations that even though they were In a I relationship, it constitutes rape. He had also allegedly taken Rs.1.5 lakh from her under some pretext or the other and had not returned it to her. I But the sum effect of her complaint was that the Palaniswamy found himself in jail for more than six months. After he was released on bail the Committee felt that he rnay also have reasons to think of taking revenge against her and to prevent it from happening only, the Committee had, in the best interest of the I complainant, suggested her transfer to some place away. Challenging this, the I applicant |had come to the Court. I I

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The fundamental question which would arise is under what premise of the law that the sexual harassment has been found when the parties were allegedly in a live^in I relationship, as, can a consensual relationship become non cpsensual and if so at what stage and under what circumstances? At what point had the alleged rape commenced; whether I inducempnts/sentiments were fructified for'the sexual relationship that can be I agitated as rape as even admittedly the applicant had taken the benefit of her I sexual submission. j

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If a price is offered for a sexual relationship and fructified can it thereafter become hon consensual?

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The! I next case is OA 649/2013. A senior officer of ESIC who had apparently an unblemished record of employment and due to retire soon is the applicant.!He challenges his repeated transfer made at the behest of one of the trade unions based on a complaint made by a lady employee which was referred to a Vishaka Committee of a sort.

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The allegation against him is that the lady employee had given a complaint against him that he shouted at her following an issue in the office. One Smt. Suma, whom we heard in great detail, is the complainant. According to her, she was ill on several days. Her husband is also an employee of the same organization. The applicant was in the habit of speaking harshly against I the subordinate employees if even the smallest lacuna was found against them. He was so strict and exacting. But according to reports of the respondents, capable dnd honest. According to her he was being ridiculously strict. Since she was Unwell, she did not report to her office for several days and only after she came back she could give a leave letter or inform the office. According to her, for duch a small thing, the applicant one Sri Jaganath threatened her that she I would be departmentally dealt with and even removed from her employnient. At this point, vye heard the applicant also In person, following the unauthorized absence of SmtSuma, he had marked In red Ink all the days on which she was absent and after 8 days he found that on the top of the red marking she had signed on everyday and only thereafter a leave letter was produced. Smt. Suma has a case that she was actually ill and if there was any doubt the applicant could have asked for a medical certificate. Howeverj the Trade Union took up the issue and Smt.Suma filed a complaint. But Smt Suma would say that she had not the Intention of making any sexual harassment complaint. But the concerned authorities were scared.

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They would say through their counsel that they acted in the best interest of the organization in the current climate and since the complainant was a lady they decided to form a Vishaka Committee and examine two witnesses who ailege that the applicant is always rude to everybody and unduly strict. It was mentioned in her complaint that the applicant had enquired about the name of her husband and that she felt that the interrogative query to be calculated to diminish her husband by this enquiry. Further elucidation brought out that the respondents wanted to settle the matter somehow and following the recommendations as in the case of Vishaka, they transferred him to an offce in Bangalore itself as a punishment. But then the Union sat in Dharna and demanded more punishment. And alarmed by the reactions of the Uni(^n, who had apparently threatened stoppage of work. Senior officers decided to transfer him to Chennai so as to appease the Union. I The fundamental question which would involve in this matter is what is the I relevance of Vishaka committee here especially in view of the fact that the complaint was only that the applicant had behaved in a rude manner but also coiitra, her behaviour was unbecoming of a government servant when she signed over the red markings made by her superior officer and it may amount to forger which is a criminal offence. She had not informed of her absence even though her husband is also an employee there. The degree of indisdipline shown by her was condemnable but since a woman had given a compiaint, the entire hierarchy was terrorized and even though not I a single word of the complaint would constitute sexual harassment, even according to the original complaint, a Vishaka Committee was formed and without giving due and appropriate opportunity, the applicant was penalized.

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The third case allegedly is of a whistle blower in OA 32/2012. The applicant who is a newly transferred employee to the concerned office had apparently informed the Chairman of the company when after taking charge of the store officer, he had apparently taken strong measures by restricting the movement of material contractors and rearranged factory arrangements to restrict free access to contractors for a better inventory control. It is admitted by the Chairman himself whom we personally heard that the applicant had travelled to Bangalore and informed the Chairman about the happenings in the company. He would say that thereafter he was being repeatedly threatened by all these people. He had re-arranged the seating arrangement of the employees and disallowed the contractors free access to the store. It has come out in evidence that the Central Industrial Security Force had intercepted 5 truckloads of coal being stolen from the company and had brought it back to the company where it lay for 25 days. But since the company did not lay any claim for it, after 25 days, the local magistrate had granted interim custody of the coal and the lorry to the contractor under section 451 of the Cr.P.C. Nothing is heard about it thereafter. But the Chairman who appeared before us would submit that even though there were allegations of Rs.400 crore worth of materials being stolen from the company, an audit was done and it was found in the audit that the allegations are not correct. But the sole question that hit our head right here is that if everything is totally alright , then how were the 5 truckloads of coal accounted for? What about the pig iron lying at Panambur Police station?

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After his alleged return from the Chairman's office, apparently 3 women employees submitted a written complaint. One of the complaint is that one of the woman employee had lost her Mangalasutra. At this, the applicant is said to have told her that if she had put her Mangalasutra inside her dress, she would

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not have Ibst it. This was alleged to be a sexually coloured remark to commence action against him. It also came out that after some time, she herself went and told the applicant that she had found it again. If she had thought that the earlier statement was sexually coloured, surely the second instance would not havej arisen as she would then not elect to speak to him again. One lady had a' complaint that the applicant while dictating letters for her to type on the computer, he would sit nearby and keep his hand on her Chair. A similar other cornplaint was made by another lady. One among these ladies goes to the main gate from the office pillion riding with a male colleague. There seems to be I some cotjiflict on the degree pf sensitivity here as a pillion rider she can not avoid . /jypparently the applicant had complained about the composition of the Committee and the Chairman of the Committee. Here also, the applicant would contend Jhat there was a deep rooted conspiracy in the office along with contractors and it is at their behest that these untenable and silly complaints are I , made against him and in the nature of the complaint and in comparison with the punishment given, he would say are indicative of acute bias of the concerned authoritie|s. He would say that It was an act of silencing a whistle blower.

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The next case is filed ,by one Sri John Johnson, a Psychiatrist at the NIMHANS, Bangalore, originally filed as a Writ Petition No. 13707/2008. It was transferred to the Tribunal arid re-numbered as TA 162/2012. The facts of the I I ; case in brief are that an M-Phil student, Ms. Radhika came one day to confer I I . with the 'applicant. Both sides agree that the applicant had directed the said i i student to wear her Dupatta properly. The applicant admits that he said so, and provides |an explanation that i there is a pre clinical discussion on methodology to be adbpted before students are allowed to interview psychiatric patients and I ' since she was about to interview a person with sexual issues, by way of a

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caution, he had advised her to put her Dupatta right. But she says that he had also said jthat the size of her breast or shape of her breast is annoying him or words to that effect. Apparently after this, they had a 15 minutes discussion and she wenti for the interview. Later on that day, she seems to have filed a complaint which after some time had been supplanted by another complaint. It appears that there are two units of psychiatry and apparently both units have long standing rivalry as alleged by the applicant. The complaint in issue was i' I signed by 5 women students.: The complaint was received by Dr.Reddemma, I the Head [of the Department and forming part of the other unit of the psychiatry. On receipt of the complaint a Vishaka committee was formed and an inquiry i' commenced. Apparently, the original complainant i.e. Ms. Radhlka did not take part in the inquiry. Two other male colleagues were also examined. Apparently their testimony was in favour of the applicant. Thereafter a report was filed | i against the applicant and ignoring the evidence in his favour and an inquiry offcerwas appointed. The applicant had apparently complained against the bias of the inquiry officer and finally one other person was appointed as inquiry officer after the intervention of the Hon'ble High Court of Karnataka, and a domesjic inquiry commenced. During the inquiry, Dr.Reddemma had stated that the 5 girls had together given the complaint and supported the complaint and the finding of the committee. The only two signatories to the compiaint who could be examined admitted in the cross examination that they had in I fact beep in the State of Kerala some days prior to the incident and remained so some days after the incident also. Therefore their I geographical proximity and access is proven wrong says applicant. But yet Smt.Reddemma would say that they had given the complaint. In the enquiry also, Ms.Radhika was not present Therefore, having felt the need for her ! assistance in the matter, we had requested the institute to secure her

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presence. She refused to come but had sent an e-mail message which was later transmitted to the Registrar indicating that she has no wish to appear to assistjithe Tribunai but she stands by her original complaint. There is no t' way of establishing the provenance of this e-mail but her disinclination to appear J and face any question seems to be present.

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After we started comparing all these cases together and examined the contemporaneous legal situation, we assume that the stream of law may have takbn a wrong path even though with good intentions. We therefore I held consultation with eminent people, some of them who have no objection of being quoted and some who do not want to be quoted. According to Smt.Prameela.Nesargi, Senior Advocate and former Chairperson of the Womens; Commission, Karnataka, there is a presumption that if a woman had compiained then necessariiy the man was guilty. She hastened to add that of course embellishment may be there but essentiaily the guilt of a man could be established by a mere fact that a woman had given a compiaitjit. She would say that a kind of social ostracism is obtained even when a woman gives a complaint that she has been negatively approached and all I sorts of premises and presumptions could be laid against her and given the circumstances, if she would give a complaint, then there must be some guilt on the part of the man against whom she had complained. But then she would say that embellishments are always possible. But others at the consultation pointed out that |n this instance, the applicant does not seem to be present to support her cause and thereby she had diminished the defence available to him. True to her vigorous self she replied that uniess the person is present before the inquiry |and is ready to face cross examination it would be a one sided inquiry and no credence can be piaced on the complaint.

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Smt.Manjula, an experienced journalist, opined that in her line of work she had fourjd that both men and women can lie. But she has noted that ] complainants are usually people in an economically higher strata but then it was pointed o|ut to her that Smt Poornima cannot be said to be in economically good condition.' She explains that while exceptions may be there, several factors exist for a wornan to make a complaint. Her emotional attributes at that point of time, the feasibility of an economic transition and a feeling of revenge are the three attributable matters In her opinion. But she opined that In thought jprocess there Is ho fundamental difference between man and woman. Therefore, singling out a woman or a man for a positive or negative treatment does not arise. Sri Vasudeva, author and former Software Executive opined th|at there Is generational gap between the leglslatlonal wisdom and executlv(5 Imperatives and even the adjudlcatory process. The present day generation, according to him, has different Ideas about sex and sexuality, the mores and morals which agitated the present day older generation do not apply with the same vehemence with the present day youngerj generation. The law and legality of approaches are laid down by the older generation are without understanding or appreciating the concerns of the younger generation. He recounted the experiences In the corporate field where more equality In expression of feelings exist among men and women and while sexual favours were being claimed It was also offered In a remuneratory process as well. It Is more of a free for all and each person dictates his or her own responses to It. Therefore, the I element of compulsion for a sexual favour to be claimed for and If not I given, sanctions to follow, has diminished to such an extent now, as according to him, conferment of sexual favours has limited price value

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these days. He says that the fundamental defect of legalism these days is that the substantial changes that have taken place in the psyche of the I , younger'generation is as yet unknown to the older generation who clings to the earlier degrees of mores and morals, which according to him, is a sham. While advocating greater levels of morality, he would lament that the older generation Is guilty of cultural strangulation more In nature and degree than the younger generation who Is more open about their choices. He would thus advocate that more liberal approach should be brought about. He would bring the|example of Bhils and Gonds of Madhya Pradesh as a fine example of lack of sexual tension and stress. I j

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We also had the benefit of discussing these Issues In consultation with several 0|thers, who wanted to remain anonymous. Among them are people In high levejls of administration, judiciary and legislature. Many among them are women. The general trend of feeling is that while large tracts of Indian I popuiace remain unaffected by any of the issues of gender equality only a minor pqrtion of the populace seems to be affected by the effect of alleged patriarcljy. The consistent opinion seems to be that the Idea of family and the hierarchy present In a rural set up makes It possible for a greater degree of harmonization even though In several parts of India these roles are more pronounced. But then depending on the geographical location while States like Haryana, UP and Bihar have a supposedly male dominance society. It Is pointed out that the mother or the grand mother Is still a focus of great power and benovolence. In State like North East, Kerala and Tamil Nadu, even traditionally women have exercised a more central role In social formation, many of these places having a matriarchal society. But the functions In these societies also are fundamentally based on functions rather than on sex alone. It Is pointed out

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that histc^rically speaking also, we have had great queens ruling the princely states with great efficacy and subjugation of the women In this respect was not ! seen as the subjugation to women but as the subjugation to the sovereign. Even behind the scene, historically, women had played a great part In moulding State pollples throughout the history of India.

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Economically speaking,; In any social group, the fountain of economic r progress iwlll always have a pre-eminence, and will consequently have more I I voice In s|oclal engineering. As In the case of the North East, economic progress Is determined by womankind and therefore consequently she will have more say In determining responses to and from society. Thus, these people opine that the gender Inequality is merely a matter of economic contribution to social growth. Economic growth depends on the efforts put in by each individual and this effort or determination decides his or her value in the society. Therefore, equality as a concept they say is misunderstood.

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Therefore how do we draw the parallels ?

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The unseen issues.

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Thq Inflnlstemal chemlstiy between man and woman Is possibly the law of nature. In the animal kingdom, elephants are credited with more herd Instincts I than anyi other animals In terms of bond with the group. In a study done In Kenya, It ^as found that the oldest matriarch Is often the leader of the group and even though In physical sense she might also be the biggest. It need not always be so, but yet the group focus around her. But In a pride of lions. It Is almost I, always tHe male who Is the acknowledged leader. But It Is almost always the

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female who starts round up pf victims as prey for hunting. Using these as a comparative examples of group relationship, it is stated that leadership in the group is;in terms of his or her contribution in the group, it is thus pointed out in a rural set up, as certain studies in Tamil Nadu shows, in some [ households, the woman is the leader even though her husband may a be a participant in the economic order. There can be a quantum, of contribution but i I the ability to manage, deterhiine pre-eminence, rather than the sex of the I, person. Therefore, it is pointed that while we have gone through the edicts of I Manusmtjiti and the rigidity of the caste system, somewhere along the line we have reJognized contribution as the most important element in the social engineeijing process. If that be so, it is pointed out that there is no question of any equa'lity or inequality. It is a variable system depending on your contribution. I' In such a system of social engineering while determinant of eminence is fixed as contribution, there cannot be any discrimination on the basis of gender, it is stated.

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Anthropological studies indicate the nature of food gathering as human beings fjrogressed from Neanderthal onwards. If we correlate all these information, we tend to find streams of human development. In ultimate analysis, I given the proclivity and capabilities, division of labour rushes on the apparentj. I' principle of" to each person according to his needs and from each person according to his or her capabilities". It is to be noted that in no society, very young children are put to hard work/a female during confinement is 1^ protected , even in the most aboriginal society. So from the historical perspective also contribution determines eminence in society.

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Th(5refore, what is the effect of being patriarchal and matriarchal. Absolute

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patriarchy and absolute matriarchy are rare in human society. But in a seemingly patriarchal society, men seem to be the main contributors of economic progress. Whereas in a seemingly matriarchal society either woman would be the main contributor or at least she will have more control over the resources, thus in a way contributing to economic progress. More societies might be patriarchal in that sense due to anatomical difference in human beings between men and women. It is always more possible for male to be more productive than the females especially in a rural set up where hard physical labour is required. But then even in those instances, the ability to manage the economic system in the households intrinsically varies the power structure within a family. An interesting study was made among the Tamil Brahmins of Tamil Nadu. They follow with rigid certainty a pattern of religious and social behaviour. The man might be the provider but the management of the household is still with the female. She is the last word in determining where each pie would go even though the man might have earned it. Therefore, the question which was pointed out by these eminent people was that we are now trying to understand through the western eye the idea of gender equality or inequality. It is noted that in Switzerland some of the cantons have not yet allowed the women with a vote. Therefore the theory of gender equality as we see advocated elsewhere is the result of fragmented ideologies which may not have relevance in Indian society. The ideal of motherhood permeating to Indian society is so strong than the religious pantheon of India that is Bharat The female deities have enjoyed a pre-eminence at all times, equal or more, with male deities. Therefore, in this historical, geographical and anthropological state of determination, where exactly do we find the reason for special

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protectiye status for women was the question which we have to think, t^ey say,

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The trinity of constitutionai system in India are (1) the Preamble to the Constitution (2) the Fundamental Rights and (3) the Directive Principles of State Policy. Article 38 ensures a social order for the promotion of the welfare of the people. Speaking about these, the Hon'bie Apex Court in Nair Service Society Vs. State of Keraia, reported in AIR 2007 SC 2891, had said that the equality before law has many facets and is a dynamic concept. The law seeking to achieve the said purpose is to be interpreted not only on the anvil of Articles 14 & 16 but also the other requirements of constitutionalism. Article 39 (a) specifies that the ptate shall secure that the operation of the legal system promotes justice on the basis of equal opportunity by suitable legislation to ensure that opijortunltles for securing Justice are not denied to any citizen by any other disabilities also. This article has been described as having the object of securingj a welfare state and may be utilized for construing provisions as to fundamentai rights with particular regard to Srlnlvasa Raghava Vs. State of i Karnataka, reported In AIR 1987 80 1518, the State of Tamil Nadu Vs L.Abu Kavur Bhal, reported In AIR 1984 SC 326. Relating to Articie 41, the Hon'ble Apex Court held that the Courts should so interpret an Act so as to advance Article 41, in Jacob M.Puthuparambll Vs. Kerala Water Authority, reported In 1991 (1) SCO 28 the Apex Court held that " but In essence, the attempt |of I the Court when Interpreting a law must be In the social context of emergence of such a legislation, which must of course be In compliance with the constitutional safeguards and the edicts of the majority must not even be seen as trampling the life and security of even

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a minority".

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22 Then there is a case of exceptional legislation as a part of policy derivations and to attain salutory pattern, export import policy were streamlined by legislation. But then, these lead to large scale infractions which bled the Country of its resources. Smuggling became endemic and as pointed out in the Vohra Commission report, criminal/politics, police nexus enhanced the possibility of material benefits to be involved in implementation. It became necessary to bring in COFEPOSA and similar legislations. Hon'ble Apex Court in view of the economic situation of the Country held initially that prevention detention Is not to be treated as punitive. The basis was explained in Ibrahim vs. State of Gujarat in AIR 1982 SO 1500. A duty to inform the detenue about the extent of exceptional circumstances and if any delay in supply of ground of detention and consequential implementation were explained by the Hon'ble Apex Court. Thus as laid down in Puja Batra vs. Union of India reported in AIR 2009 SO 2256, Hon'ble Apex held that even supply of incomplete material which is either pending or inconclusive cannot be the basis of detention order. Therefore by experience we have brought down a little by little the edifice of a draconian legal formation which was found exceptionally necessary at that point of time. But because of inherent implementation problems it has to be brought down, even though all concerned' agree that degree of arbitrariness in such allegations overrides the levels of accountability present in it and thus destroyed the test of fairness..

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In Ghowdrappu vs. State of Tamil Nadu reported in AIR 2007 SO 1416 the Hon'ble Apex Court held that it is for the Court to decide whether there is due and proper application of mind by the detaining authority and, whether relevant material had been considered or not. Karthar Singh judgement was not clear on this.

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In Kubic vs. Union of India reported in AIR 1990 SC 606 the Hon'ble Apex Court held that in view of Article 22 (5)the supply of documents must is with intent to advise detenue

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with sufficient facts and knowledge of facts and circumstances on which the order of detention is passed and it should be in the language understood by the detenue.

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In Union of India vs. Vasanth Bharathi reported in AIR 1990 SC 1216, Hon'ble Apex Court held that detention can only be in conformity with Article 22 of the Constitution of India. These are also applicable in SAFEMA or FEMA also.

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Therefore, on one hand we see exceptional methodology to be used after examining national interest which will otherwise be threatened or destroyed., this is more illuminated by Hon'ble Justice J.S. Verma in his book "The New Universal Human Rights page-38. TADA was an instrument to combat insurgency and terrorism. In fact in TADA Apex Court had upheld validity of TADA. But in R.N Tiwari vs. Union of India, reported in AIR 1996 SC 2047, Hon'ble Apex Court had brought down its vigor based on reports by National Human Rights Commission. The NHRC held as follows; "for the above reasons, a consistent view that it took in response to TADA, Commission is unanimous in its considered view. There is no need to enact the law based on prevention of terrorism Bill 2000. as a solution can be found in the existing laws, if properly enforced, implemented and amended if necessary. The proposed bill if enacted would have the vitiated unnecessarily the system and led to gross misuse and violation of human rights which must be avoided,particularly in view of the existence of the misuse in the recent past to TADA and MISA earlier to emergency days.

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The Human Rights Commission informed the Court that it is opposed to law Commission in its 173 report recommendation of new laws based on the prevention and prohibition of terrorism bill 2000.

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Two decades back, emerging of bride burning and cruelty to women was found to

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be on the increase on the basis of dowry deaths, media illuminated and law had stepped in with new set of legislative inputs as Section 498-A and cognate sections formulated to consider such views But as found by the Hon'ble Apex Court, after about two decades of its operation, it was found that this has denigrated into a weapon for personal revenge and extraction of monetary benefits. While strong views and its need was understood, implementation of it left many innocent to languish in jail or subject to threat to incarceration, so that they were compelled to submit to black mail. But in practice, implementation of it has turned out to be a weapon for unruly and unjust and deviant as in most cases, these cases were settled on monetary considerations. Thus the law unwittingly provided a bargaining platform rather than sustenance for cultivated social engineering.

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In the SC/ST prevention of atrocity Act, it was found necessary to bring in provision which have more penal teeth in light of the then visualised condition and the need for prevention of atrocities which were committed on the poor and hapless SC.ST citizens. But then later experience provided a birds eye view that many a circumstances was motivated by notion other than actual occurrences. Thus the legislative wisdom became a tool in the hands of deviant for material benefits and instead of benefiting the society it added a social engineering negativity which detracted from harmony.

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A reasoning may not be hard to find. The reciprocity which it requires in any penal solution was , one of the reason if any false complaint under any draconian legislation were made, the statute itself do not contain any methodology by which a falsity of the complaint can be expiated and expressed machinery which is required in case of such falsity was also left vague or blank. This was probably done due to the plea that victim of such alleged infraction may not be capable of calculatingly modulated in such scene where they can don the mantle of a victim even though not a victim, but will extract benefit out of fear of the

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alleged perpetrator, a law becomes draconlan when ever the law is capable of such misuse , instead of being used by the society, it provided a platform for abuse.

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Coming back to Act 14 of 2013, it was enacted out of necessity and Visakha judgement which narrated the methodology to provide for protection against sexual harassment to women. It was intended to eliminate on all fours any discrimination against women. As the Government found that when a women is sexually harassed, her right under Article 14 and 15 and right to live with dignity under Article 21 is violated. It recognises that she has a right to safe environment free from sexual harassment. Under Section 2(m) sexual harassment was defined as an unwelcome physical contact and advances and unwelcome demand for sexual favours, making sexually colourable remarks, showing porno and any other unwelcome physical, verbal, non-verbal conduct of sexual nature. These have been paramateria noted, the notion of unwelcome act, as we need to say that human race will cease to exist from that moment onwards on the definition of this unwelcome act which is crux of the issue as found by the Parliament of India. Vide Secion 4 an internal committee is formulated, wherein it provided that presiding officer shall be a woman at senior level. It also provided if such a women is not available, then such presiding officer will be nominated from other offices.

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In sub Clause(b), it is stipulated that two members are to be from amongst employees preferably committed to the cause of women. But then there is no mention as to a definition of what is the cause of women, is it to be separate from cause of man or humanity as a whole or is there to be a gender specific application?. It is to be remembered that this committee shall be an adjudicatory committee and if members of the adjudicatory committee are to be committed to an ideology, their mental frame will be such that it would give opportunity for unwelcome bias and when their finding also will be in resonance to their

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personal cjommitment. Vide clause (c ) one third person who is committed to the cause of women or| personally familiar with sexual harassment shall also be a member of such committee: Therefore on a preliminary examination of Constitution of India, it is intended for the purposp of giving a push the cause of women. Even though this law like socialism itself is hardly understood, what is the cause of women? miight be. Even though it is provided at least half of the total members shall be women, going by A, B & 0, their progression for adjudication will be limited to a particular cause. Can we have a committed adjudicatory body? ,

¶121

Similar is the effect under Section 7, especially in view of the fact under section 9 (3), committee shall have the powers of a Civil Court. I

¶122

Under Section 14 , even though methodology for reciprocity is provided, it is further circumscribed with a principle that mere inability to prove without established malice will not be considered as a lacunae. Then equity is destroyed as fair principles must guide even legislation.!

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Thejlaw locks up both man and woman

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Who steals the goose from the common,

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Butjlets the greater felson loose

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who steals the common from the goose.

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Anonymous.

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What are the real differences?

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Law says the judge as he looks down his nose.

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j Speaking clearly and most severely, ! Law is as I've told you before law is as you know I suppose Law is but let me explain it once more

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! Law is the law. j (W.H Auden Collected poems, 1976:208)

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When we examine the development .of legal traditions of India, we need to look in to ancient laws towards the Indian Constitution.

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This earlier tradition has never really been subjected to systematic sociological exposition. The rishis had created very detailed and sophisticated doctrines and carefully re-constructed those doctrines into a coherent ideology which formed an intellectual basis from which to reason and develop a comprehensive and unified view of Indian society. What were the dharmasastris up to? What was their influence? What were the asymmetrical social relations created, consolidated, and where necessary, disguised by their prescriptions? The rishis had a very clear understanding of what they were doing as they carefully re-interpreted seemingly monolithic doctrine to meet the demands of competing inequalities. Despite their seemingly orthodox learning, they were men of the world reacting to the social changes and challenges of their society. Their rigour, ingenuity, and scholarship were matched by the profound influence of their writing, an influence which survived in unbroken waves till modern times. This is not to repudiate Nelson's powerful thesis that the dharmasastra was not the actual law which governed local communities in their day-today folkways. The dharmasastra sought to create an enduring set of attitudes and beliefs rather than to actually supplant customary practices with the imperatives ordained by the rishis. It tried to house in its mansions a variety of practices

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j,

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I which were confronted with similar problems and resolved them on the basis of 1 a unified,! even if seemingly amorphous, set of beliefs. The efforts of the rishis have been commented on, but not been sufficiently critically examined and I evaluated. Kane's History of the Dharmasastra stands over twentieth century Hindu Layv scholarship like a colossus. But, given the enormity of Kane's task, it I is not sutjprising that this gigantic work did not develop sociological insights into the development of Hindu law. While a large number of scholars continue to I write abput pre-British Indian law, some of the work is mechanical, uninspired I and demonstrates a rote learning rather than imaginative interpretation. Some of 1 the work is marred with a 'wonder-that-was-lndia' or a modernity of tradition approach. A very small band of scholars-Indian, English, German and American-continue to sustain an interest in the development of earlier Indian law f I and the sjpcio-economic, political and ideological dimension on which it is set. n

¶138

As the legal and administrative system imposed by the British began to exercise an influence on social affairs and took over the working of crucial I aspects of the political economy, legal scholarship was self-protectively encapsulated in a 'black letter law' tradition.

¶139

ilhe 'black letter law' tradition seeks to interpret law as a distinct. relatively autonomous reality. Within this tradition, 'law is separated from morality, lit is understood and interpreted by esoteric rules known only to the

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initiated and critiqued on the basis of self-constituted legal principles and concepts. Such a tradition exists at two distinct levels. At a nobler and more insidious level it concerns itself with legal doctrine-seeking to redefine and reconstitute peoples' understanding of their social, political and economic relations. This reconstruction of society is guaranteed exclusiveness and derives strength from the notion of the 'rule of law'. Presenting itself as a 'fair' arrangement, the 'rule of law' draws support for the legal reconstruction of social reality while at the same time providing full power to the State to contain transgressions of the letter and spirit of the 'rule of law'. At a less sophisticated level, the 'black letter law' tradition is not concerned with doctrine but with servicing the narrow, technical day-to-day needs of the administrator and legal practitioner.

¶142

Although many lawyers and judges were prominent in the national movement, the 'black letter law' tradition in India survived virtually unscathed during the troublesome years that led to India's independence. The early lawyer and judge reformers emphasized the importance of the 'rule of law' and propagated the need for an ordered and disciplined social reform to precede political and economic change in India. From 1909, following the granting of representation in the advisory political institutions of the Raj, a new breed of liberal constitutional lawyers concerned themselves with the mechanics of legal

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change and put forward plans for alternative constitutional structures for India. The advent of Gandhi did not alter the centrality of the 'black letter law' tradition. While the law and administration were criticized, the central thrust of the movement was to achieve legal and constitutional change. In its own curious way, civil disobedience urged respect for legal institutions and process while making political capital of their misuse. Constitution was established and the legal and administrative system reconstituted under its auspices, 'law' would develop within its own relatively autonomous field.

¶145

India's Constitution was the largest ever devised in the world. When the draft Constitution was discussed on the floor of the Constituent Assembly, most members were overawed by the document's complexity. Some members regarded the new Constitution as imitative and eclectic whilst others were appreciative of the detail of attention given to it. Even though the discussions on the Constitution seem neat and impressive to the undiscerning reader, the formal record does not do justice to the varying standpoints which were accommodated during the making of the Constitution. While the forces of emergent capitalism have diluted and dissolved the basic political framework of the Constitution, lawyers have used the new legal and constitutional processes for both money and social and political mischief.

¶146

The new Constitution generated a new literature. Many of the ideas

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and idioms used in the Constitution were new. They were imported from various jurisdictions. . To be harsh on these imitative developments is to undervalue the enormity of the interpretative tasks assigned to la\A/yers and judges. The scheme which was characteristic of the early fifties represents both genuine attempts to come to terms with the newly posed constitutional questions aw well as an intellectual camouflage to reinforce personal and class interpretations of the Constitution by reference to cosmopolitan scholarship. Some of the genuine attempts to reassess doctrinal aspects of Indian law are impressive, but these are rare and were developed more by practitioners rather than the emerging scholars on Indian law. The fact remains that the passing of the Constitution did not stimulate a revival in Indian studies of law. To the practitioner the new idiomatic phrases used in the Constitution were a means, and an opportunity, to reinforced their declining status. To the judge, the new constitutional doctrines provided an opportunity to display his cosmopolitan understanding and learning. A new comparative literature was developed which mechanically crossreferenced English, American, and Australian citations for analogous provisions in the Indian Constitution. While Indian law was caught in its 'craze for foreign things', it was also being manipulated by the more advantaged sections. The result was as piquant as it was purposive. Dressed in Western garments, Indian public and private law served emerging interest with an untidy integrity.

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Indian legal scholarship seemed to enter into its mechanical phase. After the jrishis, the nineteenth century had witnessed a creative, even if patently false, re-interpretation of indigenous law, a carefully worked-through induction of I Western!law into India and a spate of litigation which gave this law social i i meaningj The rishis became reformers; and the reformers compilers of indexes. Connected more with the market place of litigation rather than the marked place of ideas,! Indian publishing houses produced a plethora of law reports, legal I digests, and practitioners' books. I

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I 37. Article 245 of the Constitution of India provides for legislative power to i enact la\A/s for the whole of India. The Hon'ble Apex Court in Kishen Vs. State of Rajasthan, reported In AIR 1990 SC 2269 held that the power to alter the applicabijity I of any Act, according to the change in local conditions, may be delegated, provided standards for guidance are provided in the Act. In other I I words, ' unless I an Act contains within It fundamental elements for determining compliance with constitutional safeguards, by Implication, the I legislation may fall. In TInsukhIa Electric Supply Company Limited Vs. i State of Assam, reported In AIR 1990 SC 123, the Hon'ble apex court held that in exercise of a legislative power, all incidental and ancillary provisions to make th^ law effective could be enacted. But then this power would not extend 1 to purposes whcih are ancillary. In other words, there must be perfect I symbiosis and harmony between the avowed objective of the Act and constitutional compliance. But at the same time, the Apex Court held that an Act of the legislature represents the will of the people and cannot be easily declared ias unconstitutional, as reported in State of Bihar Vs. Bihar Distillery

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Limited AIR 1997 SC 1511. But then, the Hon'ble Apex Court upheld through various decisions certain limitations of legislative power of the Parliament. a) The federal scheme of distribution of the legislative powers is a limitation, which flows from Article 246; b) I Fundamental Rights and other provisions of the Constitution is a limitation, which flows from Article 12,13 &| 335 of the Constitution; c) The doctrine of non-delegation in matters of policy,

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which flows from the expressions in Article 245.

¶157

These matters are considered by the Hon'ble Apex Court in D.C.Wadhwa Vs. State of Bihar, reported in AIR 1987 SC 579; State of Bihar Vs. Charush^ela, reported in AIR 1959 SC 1002; and the decision of the Hon'ble Apex Court in Tata Iron & Steel Company Vs. State of Bihar, reported in AiR 1958 SC!452.

¶158

But! the Hon'ble Apex Court held that whenever possible, a reconciliation could bejattempted by giving a meaning which can be properly given to it, as reported jn Federation of Hotel & Restaurant Vs. Union of India, reported in AIR 1990 SC 1989.

¶159

Article 13 of the Constitution of India provides that no laws which are inconsistent with the provisions of the Fundamental Rights or in derogation of it shall be ^valid. The object of Article 13 is to secure paramountcy of the Constitution in relation to the Fundamental Rights. Therefore, the fundamental objective is to ensure that the instruments emanating from any source of

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law must be constitutionally applied. In Minerva Miiis Limited Vs. Union of india, reported in AIR 1980 SC 1789, the Apex Court held that whenever a constitutional amendment relates to a basic feature of the Constitution and i points oiit as an example for exclusion of judicial review, it would be void. In I S.P.Gupta Vs. Union of india, reported in AIR 1982 SC 149, it is stipulated that even a constitutional amendment cannot override a basic feature of the Constitutjon. Therefore, it enures that the tenet of equality and equal application of the laws are the basis of fundamental 1 constitutionalism as a basic feature and they cannot be abridged without; causing severe derogation of the constitutional compliance.

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The two tenets of equality, i.e. equality before law and equal protection of laws are not actually one and the same. As Dr.Jennings put it , "Equality before law means that among equals, the law should be equal and should I be equally administered, that likes should be treated alike, the right to sue and be sued, to prosecute and be prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinctions of race, religion, wealth, social status or political Influence". (Jennings - Law of the Constitution, Oxford, Page 49, 3'" Edition).

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The word 'equal protection of the laws' is synonymous with the 14"^ amendment of the American Constitution. It says "nor shall any State deny to any person equal protection of laws". As early as in 1910, this is recognized as a fundamental principle in Lindsley Vs. Natural Carbonic Gas Company I (1910 220 US 61). In Indira Nehru Gandhi Vs. Raj Narain, reported in AIR 1975

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SC 2299, following the edict of the Court in Chiranjit Lai Vs. Union of India, i reported iin AIR 1951 SC 41, the Hon'ble Apex Court held that equality before the law is guaranteed to ail without regard to race, colour or nationality and is available to even corporations as juristic persons.

¶168

Relating to integrity in classification, a sea change was effected by the Hon'ble Apex Court when it brought in new concepts of equality by eschewing

¶169

arbitrariness. In E.P.Royappa Vs. State of Tamil Nadu, reported in AIR 1974 SC 555 and [reiterated this in Maneka Gandhi Vs.' Union of India, reported in AIR 1978 SC 597, when it held that to determine non-arbitrariness, I principies of reasonabieness must pervade iike a brooding omnipresence, it stipuiates that the basic tenet of ruie of iaw is that justice shouid not oniy be done but it aiso must be seen to be done.

¶170

i 44. The other side of this discussion can be that when we examine the j premise j in our legal system that ideas such as sustainable equality and distributive justice are at the heart of our understanding of the guarantee of the equal protection before the law. The State can of course treat unequals differently with the objective of creating a level playing field in the social, economic and political spheres. The question then would be whether reasonable classification has been made on the basis of inteiligibie differentia and whether the same criteria bears a direct nexus with the legitimate government objective. In this context, the Hon'ble Apex Court upheld tfiat reservation of seats in Panchayat as an affirmative action and it is

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enabled by Part IX of the Constitution, as held in Union of India Vs. Rakesh Kumar, reported in 2010 (4) SCO 50. It held that when examining the validity of affirmativ|e action, the inquiry must be governed by the standard of proportionality. But at the same time, the Hon'ble Apex Court held that any law providing for elections on the basis of separate electorates for members of different 1 religious communities offends against Article 15. It held that the constitutibnal mandate of the State not to discriminate against any citizen on the ground o|f I religion extends to political as well, as held in Nainsukh Vs. State of U.P., repprted in AIR 1953 SC 384. But the word 'equal protection of laws' is j being read as a positive obligation of the State, as was held in St. Stephen College Vs. University of Delhi, reported in AIR 1992 SC 1630. The Hon'ble Apex Coprt, as early as in 1950, held in A.K.Gopalan Vs. State of Madras, reported ; in AIR 1950 SC 27 that judicial review of legislation in violation of Fundamental Rights is permissible.

¶173

Therefore, when we examine the flow and stream of law and legality, in all I these cases, some elements of consideration seem to be present in the resolution of the issue at the hands of the administrative authorities. Broadly speaking, these are (a) a system seems to be engineered whereby view expressed by a compiainant assumes a more than normai importance as I her views are assigned an inviolabiiity by denying a chance for cross examinadon as is possibie in an inquiry but instead to provide for an inquiry; (b) it provides for an assimiiation of factuai situation, which is not I open to I chaiienge in the sense that subjective testimonies are held as secret documentation and not made available for further elucidation of the alleged guilt; (c) the term in the Vishaka Judgment proposing a committee situation wherein rules do not provide for a particular lacunae to be

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covered] seems to have led to a misunderstanding that by a compulsive processl a non-adjudicatory process is being Imposed on all such situations; (d) by denying an opportunity of proper hearing which will include the right to cross examine the complainant, ability to understand the charge in the fullest effect, crystallized and specific form of charge etc I denigrate these Inquiries to a level of a salem witch hunt. Which the great playwright Arthur Miller Illuminated in the play "crucible".

¶177

These seem to have been the cumulative reason which led to a statute being proclaimed by the Parliament in which a provision seems to have brought in of granting a presumptive affirmation to an expression made by a I complainant (as explained in Act No.14 of 2013) Therefore, what was the compulsive features which energized the sovereign state into a frenzy of decisivejaction is the factum of consideration

¶178

The National Crime Record Bureau reports for the last decade indicates no special acute enhancement in the crimes against women but media studies \ conducted indicate the effect of sensationalism which have led to a feeling of terror which was akin to a situation which existed prior to amendment of the penal lavys regarding Section 498A IPG. Decades long examination found that these salutary legal principles were misused and mis-utilized for personal revenge or benefit if not most, at least in many cases. An appropriate tool for revenge or material benefit seems to have been found I especially with the methodology of the operation of the law which provided for instant incarceration and for longer than usual. In a case of murder, the accused may, if th^ charge sheet is not filed in time, get bail within 90 days, even if it be a multiple murder. But the Supreme Court found that in many cases under 498A

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just based on a statement made by alleged victim, the accused and his family have to languish in jail for extended period together unless they succumb to material attraction or psychological satisfaction of the alleged victim. By the time the Hon'ble Apex Court enters the field and pass affirmatory orders restraining the beyond the pale interpretory process adopted in such issues, hundreds of thousands of people would suffer unnecessarily and against solutary constitutional principles.

¶181

The same situation seems to have existed here as well as we examine the case of Smt.Poornlma. Apparently, the police found that they were living together as consenting adults but her complaint to the President of india and other dignitories had an effect on him and he landed in jail for more than six months. There is nothing in the Act which would indicate such brutal examination of the issue other than the pressure exerted by an inflamed social conscience generated by a feeling that society is permeated by negative evils unprecedented. Therefore allegation of sexual harassment has now become a tool to seek revenge or material benefit as these cases point

¶182

The Crime Record Bureau do not indicate any phenomenal rise in crime against women. It is not to downplay the effect of several cases which have caught the public eye, the brutality of which is beyond compare and is to be condemned by all. But one case should not set the law in motion in a particular extreme stream so that thousands of innocents can suffer.

¶183

In all these four cases, what is more pertinent was the quick response of the system to the complaint. It was immediately as if the administrative authorities, going by even their reply filed in the court, had found an

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invisible fortress against the allegedly guilty. It is as if a presumption had been drawn of the guilt of the accused even before he was found guilty. This is also characterized by the extremity of punishment. Only in one i case punishment is yet to be imposed and that is because of the pendency of the ci^iminal case. In all other three cases, dismissal from service was I

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effectedJ

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To examine the case of a professor at ....NImhans.., who seems to have told a wpman student to put her Dupatta properly or in other words to properly cover her body before going to interview a sexually disturbed psychotic patient. I There isl no allegation of molestation. He had not demanded any sexual favours. Being a psychiatrist all the concerned would have understood that when he jtells I his student to cover herself properly, he would be in a parent ego. The immediate transformation to an adult ego wherein he would say that the size or sljape of her breast annoys him cannot be psychologically possible if one I understands Sigmund Freud at all. Why this cardinal issue has not appeared germanejto the authorities at Nimhans is difficult to understand as they deal in i human psychology. But we are conscious of the way the general public looks at all these. It would be proper to quote from the great activist SmtPrameela Nesargee on this point. She said " If she has complained, then he is naughty". This is the presumption under which apparently the society operate^. May be as a measure of patriarchal society, angelic innocence of women continues as guide post even in the Indian Penal Code. A woman is held as not capable of giving consent in a scene of seduction whereas the man is. Why this anathema has not been removed is not within anyone's knowledge. But these sort of pre-conceived notions along with statutory compulsions and improper understanding of Vishaka judgment has

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created a system of oppression, laments the applicant.

¶191

To take the case of a Stores Officer in a government company, it is ! admitted case of all that he might be a whistle blower even though the company denies any wrong doing. The State had reasons to suspect the company of an infraction! of Rs.400 crore and even though against evidence collected by CISF themselves it has been surmised that there is no wrong doing. It is claimed that almost immediately, apparently some of the conspirators in the alleged infraction allegedly fomented a sexual harassment complaint. We examined the nature of the complaint and found that it is ludicrously silly. The way in which the Vishaka I Committee operated was beyond the pale of the law and propriety.( we have gone through the records with an eagle eye). Allegations were made that this Committee tries to suppress evidence. But leaving all these aside, the I punishment Imposed was removal which seems to be an outrageous one going by the elements of Infraction alleged leaving the applicant to lament that he Is being punished for being a whistle blower.

¶192

The examination of the fourth case is even more funny! An apparently honest and strict officer finds that his stenographer is unauthorizedly absent and without information. He marks her absence in red ink in the attendance register. lAfter 8 days, she comes and signs on top of all the entries which in normal ope has to be considered as a great insubordination and the conduct unbecoming of a government servant. Apparently he pulls her up and according to her, was rude when he said that he is going to take action against her. He has apparently told her that she will be dismissed from her service. She also alleges that he has asked about her husband and she terms it as derogatory. As stated by the respondent officers, In fear they have reacted. They

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immediately appointed a Vishaka Committee, even though the complaint did i not mention any sexual harassment. She would also appear in court and submit that there is no sexual harassment. She and two union office bearers were also I examined by this committee and Union office bearers would depose that the applicant is rude to everybody and he is punished by a transfer to an office a little away but still in Bangalore. But then, the Union protests and sit in Dharna, Then aftpr 1 Vt. months, he is punished once again by transferring him to Chennai j even though he had very little time left for superannuation. It is admitted by all that his transfer is only due to this issue and no other. How many a ^ime can a man be punished ?, the applicant asks

¶195

is there a system of testimonial eminence to be awarded to women when they allege infraction of law & Article 13, 14 & 15 prevents discrimination on the basis of gender and ensures equal application of laws. While the State can provide benefits to bring up status of women and children and as explained by the Apex Court, the maternal situation of women and the future prospects of the children must be the soul of prerogative of the legislature I and judiciary. But then testimonial eminence does not seem to be covered as an objective of constitutionalism anywhere in the world. Reciprocity is the basis of constitutional adjudication. If a man complains against a woman, jwili his position as an alleged victim afford him a testimonial eminence as is provided in the Act and in public perception set alight by media frenzy is a question, the applicants asks.

¶196

Therefore, in this Background let us examine the detailed facts of each

¶197

case.

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The matter was taken up for consideration on 10.12.2013. After hearing the matter we felt that the lamentation of the applicant requires some how elucidation of the back ground factual matrix and therefore, directed the Superintendent of Police, Chikmagalur to file the report on the alleged incident in which the applicant claims that her life is in jeopardy following the alleged sexual assault. The report of the Superintendent of Police, explaining that the applicant had given a compliant that the alleged perpetrator who is a co-worker and had been sexually exploiting her and continuously raping her in a period which may range from 1 1/2 years to about 2 years. We have also gone through the report of the Sexual Harassment Committee which was produced by Shri Basavaraja, Additional Director , Legal Cell and we heard him also on the explanation of the report. After hearing this , we had permitted the counsel to file written argument notes explaining the significance of Article 13,14 & 15 in the matter and presumption to be drawn in favour of the women in case she contends at a later stage that though consenting to be in a relationship, in the effect of the enabling provision in the statute to withdraw her consent unilaterally even though two years later.

¶200

We had also included in the party array the alleged perpetrator. Apparently, following the criminal complaint against him , he was arrested and kept in judicial remand for more than 6 months. 57.. We have also heard the parties in person and they explained rival contentions. We have also gone through the report of the Sexual Harassment Committee. After going through the proceedings of the Committee, we are of the view

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that this is one Committee which has done an excellent job and had tried sincerely to resolve the issue as to us it appears that beyond the limits of legal parameters the anguish of human relationships was the issue and when the agony and ecstasy of human interaction got immersed in a legal situation, it apparently became more complicated. But, in spite of that the Committee seems to have made genuine efforts to bring in a situation of normalcy. The applicant laments that using his former proximity to her the said Shri Palaniswamy caused blank cheques of hers to be placed on the anvil of judicial consideration through the process of negotiable Instrument Act and she is facing untold jeopardy because of that. She would further say that the matter was actually settled by Shri Palaniswamy agreeing to pay her a quantum of amount which had been variously described as a compensation and also repayment of loan taken of about Rs.1.5 lakhs. It seems that the Police had also very wisely advised to settle the issues, but then, when the events were over taken by elements beyond their control, on the 2"" complaint they had no other option to take than cognizance of it and as a result of which Shri Palaniswamy went to judicial remand for a 6 months period and this resulted in immersing the parties into further conflict. But, then the Committee seems to have conducted themselves equanimity and with a sense of justice and propriety. But then human agony cannot be compartmentalised as emotions cannot be bridled or not amenable to legal parameters.

¶203

Whenever we legistate in the land of emotions it will always fail as social engineering is net complaint with absolutism at any level matters of mind are better left to the care of the parties than try to bridle it within a legal parameter. There cannot be

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any doubt that any form of discrimination against anybody must be suppressed. But one cannot ask any one to love anybody else nor can anybody take back the love which was offered at a point of time other than terminating it at one juncture. Similarly the case is that when consent has been given for a relationship for seemingly mercenary reasons, adjudging it as a capable of unilateral reconsideration if the ideas of possiveness and jealousy fail then a penal teeth can be brought into a situation as opposed to all ideas of fairness and constitutional governance. To insist on it will violate Article 13 and 14 of the Constitution.

¶206

Therefore what is this existing climate? Wherein the brutal murder of Nirbhaya the entire humanity was shocked by the way in which she was treated by the accused therein, it raised such a rage of protest and cafled with apparent government inaction as had the police followed the rules regarding vehicle control at that point in all probability the infraction could not have happened at all as without the cover of the tinted glass opportunity could not be present for the offence. This therefore raised an avalanche of protest and it became necessary for palliative machinery to be in place, may be as as cover of knee jerk reaction these amendments were brought out eventhough ostensibly under the guidance of Vishaka's judgment which was passed long back and Justice J.S.Verma's Committee report.

¶207

Therefore as a cumulative analysis

¶208

But Hon'ble Justice J.S.Verma in his book canvassed view for proper implementation rather that bringing in extraordinary legislation to curb social evils. Therefore may be as it has been an improperly drafted legislation which had to be passed for the sake of the moment following popular unrest it failed the test of constitutionalism

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, Whenever we legislate in land of emotion it is always predestined to fail, There is no cover or limit to emotional perquisite, even it be male or female. No one can draw a straight line in shifting sands because the very nature of the shifting sand will produce only f serrated impression. Legislation, therefore must be practical and well thought out.

¶211

After examining all these, we think that Section 4 and 7 of the Sexual Harassment Act No.14 of 2013 can be termed as unconstitutional because once a adjudicatory body is to be determined as slanted in its sway. It destroys the fairness concept embedded in adjudication. This also is true of Section 114 (a) of the amendment Act of the Evidence Act, there cannot be any functional basis for such presentations and which would appear to us to be against the constitutional provisions. But, then in national interest, we leave it to the Government to look into it afresh and take a decision in compiiance with the Constitution within a reasonable time frame.

¶212

Therefore, we would again direct the Committee to look into the matter to see whether any factual resolution can be brought about in the economic situation alleged by the applicant. But, at the same time whiie inducing such a settlement, there need not be any penal damocles sword hanging over the party respondents also. On an understanding of a law seem to be formalised in a particular climate of public rage but which had now shown us that it will do less good than envisaged. But the transfer order of the applicant seems to be reasonable if the applicant apprehends threats to her. But then, if it is settled through the agency of the Committee as we think that this is one Committee which has done its job fairly. We are trusting it to resolve the issue

¶213

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at their level and to enable it to do so all the proceedings from the finalisation of the report and handing over it to the authority including transfer order are hereby quashed. We direct the Committee to recognize the human elements involved in it and make justice available to the poor applicant as well in the matter of Rs.1.5 lakhs as well. OA is disposed of. No order as to costs.

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(PK.PRADHAN) MEMBER(A)

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(DR. K.B. SURESH) MEMBER(J)

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bk.

Poornima J M v. the Superintendent of Post Offices Chikmagalur and Others

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Poornima J M v. the Superintendent of Post Offices Chikmagalur and Others

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