Right against Sexual Harassment –A Fundamental Right

10 Jan 2022  Read 9983 Views

According to the recent report of the National Crime Records Bureau on Crime in India, there were 17,003 total reported cases of sexual harassment in the year 2020. Despite the pandemic and with most people working from home, still, 485 incidents of sexual harassment at the workplace were reported. Further, a study shows that male suicides are 4 times more than female suicides at a workplace. Thus, any person can be subjected to this shameful act, as it is not just a crime against the body, but it is a crime against the soul.

Revisiting the ‘Vishakha case’

The need for legislation providing for the prevention of sexual harassment at the workplace was first time observed by the Supreme Court in Vishaka v State of Rajasthan (1997 6 SCC 241), as there was no law providing measures to check the evil of sexual harassment of working women; since the POSH Act was enacted in the year 2013 and Section 354 A, IPC was also added in the year 2013 after the recommendations of Justice Verma Committee. 

Thus, the Supreme Court outlined certain guidelines to prevent sexual harassment of women at workplaces, known as the Vishakha guidelines. However, the major defect of these guidelines, the POSH Act, and Section 354 A was that these are not gender-neutral and only considers women as victims. Further, the only remedy for other genders i.e. Section 377 of IPC which punishes unnatural offences including sodomy is held unconstitutional by the Supreme Court in Navtej Singh Johar v. U.O.I., by reading down the term “unnatural”. However, it still punishes sodomy without consent, but it is not easy to prove. By this, on one hand, a progressive step was taken by reading down the discriminating part of this Section, but on the other hand, no other provision was inserted to protect other genders from such horrific acts. 

Recently, the Supreme Court in the case of Union of India and Ors v. Mudrika Singh (LL 2021 SC 705) has recognized the Right against sexual harassment as a fundamental right present under Article 21. Let’s understand this case!

Union of India and Ors v. Mudrika Singh (LL 2021 SC 705)

In this recent case, the bench comprising Justice D.Y Chandrachud & A.S Bopanna in this case recognized the Right against sexual harassment as a fundamental right present under Article 21 of the Constitution. 

What were the facts of the case?

The complainant in the above case is a constable in Border Security Force and had accused his senior, a head constable of sexually harassing him. In this case, there was a slight discrepancy regarding the date of occurrence of the act of sexual harassment due to which the Calcutta High Court invalidated the disciplinary proceedings against the respondent and reinstated him to his position.

In 2006, the complainant had accused the respondent of committing sodomy which was followed by an enquiry against him. The Complainant approached the Supreme Court challenging the High Court's judgment nullifying the disciplinary proceedings against his senior. The Complainant argued that the High Court had taken a hyper-technical outlook and fall short to realize the provisions of the BSF Act and BSF Rules which punishes such unnatural and outrageous conduct.

What did the Supreme Court say?

The Apex Court observed that the right against sexual harassment is entrenched in all persons and it is a component of their right to life and right to dignity under Article 21. The Court emphasized that it is important to uphold the spirit of this right rather than refusing sexual harassment complaints on “hyper-technical” grounds. The bench showed its concern regarding the increasing trend of appellate machinery of turning the inquiry relating to sexual harassment into a punishment for aggrieved persons.

Hyper technical grounds are overly or excessively specific grounds; for instance, transformative legislation like the POSH Act which penalizes numerous misbehaviors of sexual character and directs all public and private organizations to form sufficient means of providing a remedy, will not succeed in relieving the aggrieved person if the proceedings probing into sexual misbehaviors are quashed due to over technical interpretations of the relevant service rules. This will fail the whole purpose of providing justice to the victim. 

The Court opined the importance of being mindful of the effect of power on a relationship between two or more people and its effects on sexual harassment at the workplace. Thus, there are numerous concerns and restraints that a subordinate employee distressed by sexual harassment has to face and is forced to consider while reporting the crime against his/her superior.

The Court observed that the inconsistency regarding the date of occurrence was very minor as the event occurred soon after midnight and on the next day. Not providing a remedy to the complainant by giving importance to such trivial reasons will violate the fundamental right against sexual harassment.


The consideration of such a right as a fundamental right creates awareness regarding outcomes of sexual harassment and its redressal. The effective implementation of laws relating to Sexual harassment requires creating an environment where every person can talk about their grievances without any fear and judgment. The Apex Court’s decision, that the right against sexual harassment is entrenched in all persons and it is as an element of their right to life and right to dignity under Article 21, shows the importance of providing this right to all genders in the present times. However, to provide for a better implementation of this decision by the Supreme Court, amendments to laws relating to Sexual harassment is the need of the hour.

About the Author: Apoorva Goel | 2 Post(s)

Apoorva is an LL.M student from HNLU, Raipur, with core interests in Constitutional law, Criminal law and IPR.  She has an interest in simplifying the Law through her legal research and writing. She graduated with B.A (H) Economics from Dyal Singh College, DU; after that, she pursued LL.B from Bharati Vidyapeeth University. She also holds a PG Diploma in IPR from the Indian Society of International Law.

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