FOURTH, STATE LEVEL MOOT COURT COMPETITION, 2013-2014, NEW LAW

COLLEGE, AHMEDNAGAR.

TABLE OF CONTENTS

TABLE OF CONTENTS 1

LIST OF ABBREVIATIONS.. 2

INDEX OF AUTHORITIES
Table of cases. 3-4
Books referred... 5
Statutes and Notifications. 6
Conventions and Treaties. 6
Websites. 7

STATEMENT OF JURISDICTION. 8

STATEMENT OF FACTS. 9

STATEMENT OF ISSUES 10

SUMMARY OF ARGUMENTS 11-12

ARGUMENTS IN DETAIL.. 13-29

PRAYER.. 30

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LIST OF ABBREVIATIONS

AIR

All India Reporters

CrPC ..

Code of Criminal Procedure

Govt ...

Government

SC ..

Supreme Court

US...

United States

SCC

Supreme Court Cases

Honble ..

Honorable

Edn.

Edition

Vol . Volume
Art .

Article

Pg

Page

v.

Versus

Sec

Section

U.O.I

Union of India

Ibid..

Initially brought into

dictum

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INDEX OF AUTHORITIES
TABLE OF CASES
1. Medha Kotwal Lele And Ors. v. Union of India.
2. Maneka Gandhi v.Union of India
3. Kehar Singh v. Union of India
4. Kharak Singh V.State of UP
5. Sunil Batra v Delhi ADMIN.
6. Olga Tellis v. Bombay Municipal Corpn.
7. Francis Coralie v Union of Territory of Delhi
8. Bandhuwa Mukti Morcha v. Union of India
9. Vikram Deo Singh Tomar v State of Bihar,
10. M C MEHTA v. Union of India
11. Ashok v Union of India
12. Apparel Export Promotion Council V A. K Chopra
13. State of Panjab v. Ramdev Singh
14. Vishaka v. State of Rajasthan
15. State of Punjab v. Baldev Singh
16. Board of Trustees of the PORT OF Bombay v
Dalip kumar R Nandkarnai
17. Ranjit Singh v State ,
18. State v. Chhinga
19. Re Bokkasam Krishnayaya
20. Abdul Ali Abdul Rahman v. Jannat
21. State of Mysore v. Nanja
22. Nasrullah v. State
23. Subbiah Gounder v. Kanda swammy Gounder
24. Sahira Habubulla H Sheikh & anr v.
State of Gujarat & Ors.
25. Thadi Narayna v. State of Andhra Pradesh
26. Allarakha k Mansuri v. State of Gujrat
27. State of Maharashtra v. Vilas Pandurang Patil
28. Bhagwan Singh & Ors.v. state of M. P
29. Matadin v. State of UP
30. Maharaj Singh v State of Rajasthan
31. State of West Bengal v. Sanchita Investments
32. Emperor v. Nazir Ahmed
3

(2013)1SCC297
AIR 1978SC 597
AIR 1989 SC 653
AIR 1963 SC 1295
(1978 ) 4 SCC 494
AIR1986 SC 180
AIR 1981 SC 746
AIR 1984 SC 802
AIR 1988 SC 1782
(1987) 1 SCC 395
AIR 1997 SC 2298
AIR 1999 SC 625
AIR 2004 SC 1290
AIR 1997 SC 3011
AIR 1999 SC 2378
AIR 1983SC 109
AIR 1952 H P 81
1982 UP Cr LR 223
AIR 1957 AP 163
AIR 1957 All 552
AIR 1958 Mys. 48
AIR 1955 All 124
1970 LW (Cr)208
AIR 2004SC3467
AIR 1960 AP 1
AIR2002 SC 1051
1999 Cr L J 1062
AIR 2002 SC 1621
1979 SCC (Cr) 627
1981 SCC (Cr) 306
AIR1982 SC 949
AIR 1945PC 18

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33. Eastern Spinning Mills v. Rajiv Poddar

34. Union of India v. W N Chadha
35. State of U. P v. Bhagwat Kishor Joshi
36. Sudhakar Das v. Dyanidhi
37. Tulsa Naik v. State
38. Khair Mahomed v. Emperor
39. Rupen Deol Bajaj (Mrs.) & anr v.
Kanwar Pal Singh Gill & another
40. Sohanlal Nayak v. State of Orissa
41. Walkar v. Northumberland County Council
42. Mathura Prasad v. Union of India
43. Pandurang Bhagwat v. State of Maharashtra
44. Meritor Saving and Bank v. Vinson
45. Munn v. Illinois
46. Nilabati Behra v. State of Orrisa

AIR 1985 SC 1668

AIR 1993 SC 1082
AIR 1964 SC 221
AIR 1996 Ori 114
1963 Cut LT 217
26 Cr L J 904
1996 Cr L J 387(SC)
1973 Cut LT 1037.
(1995)I R LR 35
[2007] 1 SCC 437
[2005] 9 SCC 44
1861 US 6
94 US113
(1993) 2SCC 746

BOOKS REFERRED
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013
V. N. Shuklas Constitution of India by Mahendra.P.Singh, Eastern Book Company, Eleventh
Edition.
M P Singh Protection of Human Rights against State and Non state Action In Dawn Oliver &
Joerg Fedtke ( eds), Human Rights and the Private Sphere, 179 (2007)
Consitutional Law of India by Prof. Narender kumar, Allahabad Law Agency, 7 th Edition 2008
The Constitution Law of India by Prof Kailash Rai, Central Law Publications, Tenth Edition
Reprint 2012

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COLLEGE, AHMEDNAGAR.

The Constitution of India by P.N.Bakshi, Law Publishers (India) Pvt. Ltd, 8th Edition 2008
The Constitution Law of India by Dr. J.N. Pandey, Central Law AGENCY, 45TH Edition (2008)
India Constitutional Law by Prof M.P.Jain, Publishers Wadhwa & Company Nagpur, Fifth
Edition, Reprint 2008
Sohonis Code of Criminal Procedure 1973 by R Gopal Publishers Lexis Nexis, 20 th Edition
(2007) (Volume IV)
Sohonis code of criminal Procedure 1973 by R Gopal, publishers Lexis Nexis, 20 th Edition
(2003) Volume II
R .A. Nelsons Indian Penal Code by S K Sarvaria, publishers Lexis Nexis, Vol.4 9

TH

Edition

2003
Law Relating to WOMEN & Children by Mamta Rao, Eastern Book Company, 2 nd edition
(2008)

STATUES AND NOTIFICATIONS

Indian Penal Code, 1860

The Code of Criminal Procedure, 1973
The Constitution of India, 1950
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act,
2013
The Criminal Amendment Act, 2013
The Police Act, 1861
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The Protection of Civil Rights Act,

CONVENTION AND TREATIES

Universal Declaration on Human Rights, 1948

The Convention on the Elimination of All Forms of Discrimination against Women, 1993
General Assembly Resolution No 48/104, 1993
Declaration on the Elimination of violence against Women & the platform for Action from the 4 th
World Conference on Women

WEBSITES

www.indiacode.in visited on 05.01.14 at 10.35 hours IST.

www.judis.nic.in,visited on 05.01.14 at 10.47 hours IST.
www.lawworld.com.visited on at 06.01.14 at 11.15 hours IST.
www.lexisnexis.com visited on at 07.01.14 at 11.25 hours IST.
www.manupatra,com,visited on at 08.01.14 at 11.35 hours IST.
www.seconline.com, visited on at 09.01.14 at 11.45 hours IST.

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COLLEGE, AHMEDNAGAR.

www.supremcourtofindia.nic.in, visited on at 10.01.14 at 11.55 hours IST.

www.westlaw.com visited on at 12.01.14 at 15.15 hours IST.

STATEMENT OF JURISDICTION

THE APPELLANTS HAVE THE HONOUR TO SUBMIT BEFORE THE HONBLE

HIGH COURT OF JUDICATURE BOMBAY, AT AURANGABAD BENCH, THE
MEMORANDUM FOR THE APPELLANTS UNDER THE CRIMINAL APPELLATE
JURISDICTION OF THE HIGH COURT.

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COLLEGE, AHMEDNAGAR.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

STATEMENT OF FACTS

1. Miss XYZ since 9th Dec 2012 was serving as Personal Secretary to Mr. ABC, an
Executive Officer in Zoom Auto Company Ltd. at Aurangabad. Mr. ABC as part of
official work scheduled at New Delhi on

7th

May 2013, requested Miss. XYZ to

accompany him. Mr. ABC booked two suites in Tughalak Merritt Hotel in New Delhi, i.e
the venue of the meeting. On the third day of the meeting at 8.00 PM, Mr. ABC invited
XYZ in his suite to celebrate the success of company deal.
2. During the celebration he offered her wine which she politely refused. Later on
unwelcome sexual advances by Mr. ABC shocked her; she protested and left his suite.
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Mr. ABC realizing his mistake rushed out of suit following her & uttered apologies for
his misbehavior, which was recorded in CCTV cameras in the hotel lobby.
3. Miss XYZ quit the company 4 days after this incident and blogged alleging that, sexual
harassment by Mr. ABC has violated her rights under art. 14, 15, 19(1) (g) and 21 of
Constitution of India, moreover there being no Redressal mechanism in the company for
working woman, she cannot initiate action. Womens organizations in Aurangabad on
reading the blog started demanding action against Mr. ABC and the company.
4. The Aurangabad police took suo motto cognizance of allegations and lodged FIR against
Mr. ABC on the basis of Amended Criminal Law 2013, wrt. The Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
5. Investigations by Delhi & Aurangabad Police confirmed the facts stated by Mr. XYZ in
her blog true and correct so the police filed charge sheet against Mr. ABC in the Court of
Judicial Magistrate at Aurangabad.
6. The said court directed the Company Management to establish redressal mechanism
within 7 days on the basis of Vishakha Guidelines and acquitted Mr. ABC on the ground
of absence of a complaint by Miss. XYZ. The Session Court, Aurangabad upheld the
acquittal on appeal. Being aggrieved by the decision an appeal is now filed before High
Court of Judicature, Bombay at Aurangabad Bench.
STATEMENT OF ISSUES

1. WHETHER THE PRESENT APPEAL IS MAINTAINABLE?

2. WHETHER THE CRIMINAL COURT ERRED IN ACQUITTING THE
RESPONDENT?
3. WHETHER THE ZOOM AUTO COMPANY LTD HAS DEFAULTED IN NOT
ESTABLISHING A REDRESSAL MECHANISM FOR WORKING WOMEN IN
ITS COMPANY IN ACCORDANCE WITH THE DIRECTION GIVEN IN
VISHAKAS CASE?

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4. WHETHER THE ACT OF RESPONDENT IS VOILATIVE OF SEXUAL

HARASSMENT

OF

WOMEN

AT

WORKPLACE

(PREVENTION,

PROHIBITION AND REDRESSAL) ACT, 2013?

SUMMARY OF ARGUMENTS

ISSUE:1. WHETHER THE PRESENT APPEAL IS MAINTAINABLE?

High Court is entitled to hear and dispose of appeal in case of acquittal. In order to guard against
the arbitrary exercise of power and to reduce reckless acquittals, section 378 of CrPC provides
for appeal against an order of acquittal. The present appeal is preferred before this Honble Court
under the criminal appellate jurisdiction envisaged upon it under section 378(1) (b) of the
CrPC,1973. The judgment of acquittal passed by the Court of Judicial Magistrate, Aurangabad

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and upheld by the Session court, Aurangabad deserves interference of this Honble Court. Hence
it is humbly submitted that the appeal is maintainable.

ISSUE:2. WHETHER THE CRIMINAL COURT ERRED IN ACQUITTING THE

RESPONDENT?
The Learned Court of Judicial Magistrate, Aurangabad acquitted the respondent and the said
judgment of acquittal was upheld by the Honble Court of Sessions, Aurangabad on appeal on
the ground that the action against the Respondent has initiated suo motto by the police and
because there is no complaint made by Miss. XYZ, police cannot take cognizance of the offence.
However, the learned trial court and appellate court erred in not considering the legal provisions
in place which empower the police to take suo motto action. Moreover, the court erred in not
holding that the act of the respondent attracts the provision of sections 354A, 509 of IPC,1860.

ISSUE:3. WHETHER THE ZOOM AUTO COMPANY LTD HAS DEFAULTED IN NOT
ESTABLISHING A REDRESSAL MECHANISM FOR WORKING WOMEN IN ITS
COMPANY IN ACCORDANCE WITH THE DIRECTION GIVEN IN VISHAKAS
CASE?
The Honble Supreme Court in Vishakas case laid down guidelines to protect working women
from sexual harassment at workplace. It was a classic example of judicial activism, as in absence
of any legislation to protect women from sexual harassment at workplace; Supreme Court went
beyond the black letters of law and laid down guidelines, which was to be strictly followed by
employers. Zoom Auto Company failed to follow the guidelines and contravened Art. 141 of the

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Constitution of India. Hence Zoom Auto Company violated the precedent laid down by Honble
Supreme Court by not instituting Redressal mechanism in the company.

ISSUE:4. WHETHER THE ACT OF RESPONDENT IS VOILATIVE OF SEXUAL

HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) ACT, 2013?
The long awaited legislation is in place and the preamble of the Sexual Harassment of Women At
Workplace (Prevention, Prohibition And Redressal) Act, 2013 focuses on the ideals of the
Constitution of India, 1950. It states that sexual harassment results in violation of the
fundamental rights of a woman to equality under articles 14, 15, 19(1) (g) and 21 of the
Constitution of India, 1950. Miss.XYZ was the employee of the respondent when he made
unwelcome sexual advance towards her. The conduct of the respondent towards Miss.XYZ
squarely falls within the ambit of section 2(n) of the Act of 2013 and hence by doing such
heinous act the respondent has grossly violated the essence and spirit of the Sexual Harassment
Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013.
.

ARGUMENTS IN DETAIL

ISSUE:1. WHETHER THE PRESENT APPEAL IS MAINTAINABLE?

It is most humbly submitted that present appeal preferred before the Honble High Court is
maintainable as it is an appeal from acquittal which deserves interference of the Honble High
Court to correct the impugned judgment. Hence it is a fit case for High Court. Appeal procedure
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is a very significant advantage to the person and the professed object of it is in conformity with
the doctrine of 'speedy trial'.1 The High Court has full power to reappreciate and reassess the
entire evidence upon which the order of acquittal was founded and then to come to its own
conclusion.2 Considering the special position held by the State in criminal jurisprudence, the
legislature was justified in placing the State on a special footing as regards appeals against
acquittals. The various provisions of this section for appeal by the State Government and by
private complainants can be justified on the principal of reasonable classification. 3 The Code of
Criminal Procedure, states that the State Govt. may in any case direct the Public Prosecutor to
present an appeal to the High Court from an original or appellate order of an acquittal passed by
any Court other than a High Court.4 The HC can interfere with the acquittal order of the trial
court under section 378 CrPC, when the conclusions arrived at by the trail court are factually and
legally incorrect. The paramount consideration of the High Court would be to avoid miscarriage
of justice and the miscarriage of justice arising from the acquittal of a guilty is not less than from
convicting an innocent.5
Denial of a fair trial is as much injustice to the victim and the society as it is to the accused. 6 The
principles of rule of law and due process are closely linked with human rights protection. Such
rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be
unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair
to all concerned.7 The appellant court would interfere with the order of acquittal where the
appreciation of evidence is either grossly unreasonable or perverse or the order of acquittal is
1

Kartar Singh v. State of Punjab, 1994 SCC (3) 569.

Songappa V State of Karnataka (2010 ) 3 S.C.C. 68

Abdul Ali Abdul Rahman V Jannat AIR 1957 All 552 ,553 , State of Mysore V Nanja AIR 1958 Mys 48

Code of Criminal Procedure, 1976, 378(1)(b) [Hereinafter referred as Code of Criminal Procedure].

Allarakha K Mansuri V State of Gujrat AIR2002 SC 1051, (2002) 3 SCC 57,2002 SCC
(Cr)519,2002 Cr LJ1489 (SC)
6
7

Sahira Habubulla H Sheikh & anr v.State of Gujarat & Ors. AIR 2004SC3467,2004 CrLJ2050 (SC)
Sahira Habubulla H Sheikh & anr v.State of Gujarat & Ors. AIR 2004SC3467,2004 CrLJ2050 (SC)

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vitiated by an illegality which has resulted in failure of justice. 8 The HC would be justified to reappreciate evidence and convict the accused in appeal, when the acquittal by the trial court is in
ignorance of the basic principles of law and evidence on record. If the judgment of the trial court
was manifestly wrong and perverse and based on unconvincing and unsound reasons the reversal
of the acquittal on fact by the HC is justified. 9 Where the view of evidence taken by the trial
court was manifestly erroneous and the reason utterly unsustainable, the interference of the High
Court by reversal of the acquittal will be justified.10
It is contended that whole trial in the magistrate court is vitiated by an error or illegality. An
appeal would lie only to the High Court not only from an original order of acquittal but also from
the appellate order of acquittal passed by the Courts below.11 Where the order is clearly
unreasonable, it is a compelling reason for interference. 12 Once the appellate court comes to the
conclusion that the view taken by the acquitting judge is clearly an unreasonable one, it will in
itself be a compelling reason for interference.13
In an appeal against acquittal the High Court can interfere with the finding impeached, if the
High Court comes to the conclusion that not only is the offence proved beyond a reasonable
doubt but that is difficult, if not impossible to see how a contrary view could be held on the
material available in the case. The High Court has full power to review the evidence upon which
the order of acquittal was founded; but the findings of the trial Court can be reversed only for
very substantial and compelling reasons.14 Hence, the present appeal is maintainable as it is in
accordance with section 378(1) (b) of CrPC.
8

C.Antony v. K.G.Raghavan Nair, AIR 2003 SC 182.

Matadin v. State of Uttar Pradesh, 1979 SCC (Cr) 627, 628.

10

Maharaj Singh V State of Rajasthan 1981 SCC ( Cr ) 306 ,310.

11

Thangaraj v. S.Aruljothi & Shanmugavel

12

Jaswant Singh v. State of Haryana, AIR 2000 SC 1823.

13

Harbans Singh v. State of Punjab, AIR 1962 SC 439

14

Tulsiram Kanu v. The State, AIR 1954 SC 1.

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COLLEGE, AHMEDNAGAR.

ISSUE:2. WHETHER THE CRIMINAL COURT ERRED IN ACQUITTING THE

RESPONDENT?

It is humbly submitted that criminal Court i.e. the Court of Judical Magistrate, Aurangabad and
Court of Sessions, Aurangabad [Hereinafter referred as criminal Court] erred in acquitting the
respondent. The reasons given by the Court that police cannot take suo motto action in absence
of complaint made by Miss. XYZ are unreasonable and not supported by principles of law.
Moreover, it is contended that act of the respondent is sexual harassment and it squarely attracts
the essential elements of section 354A of The Indian Penal Code, 1860. Also the criminal Court
has erred in not holding respondent guilty under section 509 of the Indian Penal Code for
insulting the modesty of Miss.XYZ.

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[2.1] SUO MOTTO ACTION BY THE POLICE.

It is submitted that police can take suo motto action in event of cognizable case. The police being
the guardian of the State are suo motto empowered to take action to prevent commission of crime
and to do complete justice to the victim. Any officer in charge of police station may without the
order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the
local area within the limit of such station would have power to inquire into or try the cases. 15
Under this Sec. the police have a statutory right to investigate the circumstances of an alleged
cognizable crime without requiring any judicial authority. Neither the magistrate, nor even the
High Court, can interfere with those statutory rights by an exercise of the inherent jurisdiction of
the court.16 Though investigation is ordinarily undertaken on information received by a police
officer, the receipt of information is not condition precedent for investigation. The section
prescribes the procedure in the matter of such an investigation which can be initiated either on
information or otherwise.17 A police officer may investigate a cognizable offence on his own
information, without any formal information by any party.18 There have been numerous examples
where the police or the court on its own has taken Suo Motto cognizance without receiving any
formal complaint.19
In offences against women, they are usually hesitant to file complaint due to family, fear of
losing husband or breaking up of marriage, etc. Hence, legislature keeping in view these
drawbacks of the society empowers the police to take suo motto action in absence of any
15

Code of Criminal Procedure, 156(1).

16

Stateof West Bengal v. Sanchita Investments AIR1982 SC 949,Emperor v.Nazir Ahmed AIR 1945PC 18
State of U. P v. Bhagwat Kishor Joshi AIR 1964 SC 221 ,(1964)1CrLJ140

17

18

Sudhakar Das V Dayanidhi AIR 1966 Ori 114.

19

Tulsa Naik v. State 1963 Cut LT 217,Union of India V W N ChadhaAIR1993SC10821993Supp(4)SCC260,State V

Niroda Chandra Mukerjee(1962)2CrLJ635,State of Bihar VBaijnathAIR1958Pat528

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complaint. In the present case, when Miss. XYZ was prey to the incidence of sexual harassment
by the respondent she expressed her outrage by way of blog, which she felt safe. She did not file
any complaint or writ neither did she file any FIR due to family pressures and fear of career loss.
The women have no courage to report due to the fear of further harassment, trauma and revictimization. As the police are empowered to take action even on apprehension of commission
of offence, it very aptly on the perusal of blog took suo motto action and after completion of
investigation when found the contents of blog to be correct then filed charge sheet against the
respondent.
Hence, the police are empowered to take suo motto action in cases of commission of cognizable
case and sexual harassment being cognizable case the action of the police is legal and the order
of criminal Court is erroneous in the eyes of law.

[2.2] OFFENCE UNDER SECTION 354A OF THE INDIAN PENAL CODE, 1860

It is humbly submitted that the Indian Penal Code has been drastically amended in the year 2013
to keep pace with the offences committed in day to day life which were not covered under the
Penal Code. Sexual harassment is made an offence punishable under the Indian Penal Code. 20
Sexual harassment as type of employment discrimination includes sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual nature prohibited by Federal
Law.21

20

The Indian Penal Code, 354A.

21

Blacks Law Dictionary

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COLLEGE, AHMEDNAGAR.

Sexual harassment at the workplace can seriously affect a persons job, person well being and
can create an intimidating, hostile and humiliating work environment. In the case at hand, the
respondent with an ill intention called Miss. XYZ to his suite to celebrate and offered wine to
drink and further made unwelcome sexual advances. Miss. XYZ protested such behavior and
rushed out of the room, the respondent thereafter followed her and apologized as he realized his
mistake and it was captured in the CCTV camera. All this invites punitive action against the
respondent under section 354A of the Indian Penal Code.

[2.3] OFFENCE UNDER SECTION 509 OF THE INDIAN PENAL CODE, 1860.

It is most humbly submitted that, Whoever, intending to insult the modesty of any woman, utters
any word, makes any sound or gesture, or exhibits any object, intending that such word or sound
shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the
privacy of such woman, shall be punished. 22 This sec. makes intention to insult the modesty of a
woman an essential ingredient of the offence. To constitute an offence under this section there
must be some individual woman whose modesty has been outraged. It is, of course not necessary
that individual woman or women should make a complaint. However, there must be an allegation
that the action complained of has insulted the modesty of some particular woman or women, and
not merely of any class or section of women, however small.23
Offence relating to the modesty of a woman not being trivial, sec. 95, IPC, is not attracted. 24 The
intention to insult the modesty of a woman is the essential ingredient of the offence. Similarly, if
the Court, on a consideration , of the evidence on record in its entirety and the overall facts
22

The Indian Penal Code, 509.

23

Khair Mahomed v. Emperor 26 , Cr LJ 904 ,AIR 1925 Sind 271

24

Rupen Deol Bajaj (Mrs. ) & anor v. Kanwar Pal Singh Gill & another 1996 Cr LJ 387 ( SC )

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COLLEGE, AHMEDNAGAR.

and circumstances of the case disclosed there from, arrives at the finding that the accused had
the aforesaid intention and for that he said something or uttered some words , it can justly hold
the accused guilty under this section , no matter the exact words uttered by the accused are not
placed on the record.25 Where the act of the accused is against moral sanctions and decency,
actual assault or bodily touch or contact is not required to amount sexual harassment.26
In the present case the respondent has made unwelcome advances by such gestures which attract
the provisions of the insult of women. The intention of the respondent was that to insult and
outrage the modesty of women was clearly evident from his conduct subsequent, wherein he
rushed behind Miss. XYZ and apologized for his misconduct and misbehavior. Arguendo, even if
it is assumed that the respondent has not caused any sexual harassment then why did he
apologize to Miss. XYZ remains a question to be answered by the respondent.
Intended insult to modesty of a woman is made punishable under section 509 of The Indian
Penal Code, 1860.27
Hence in the presence of such grave and heinous offences committed by the respondent the
criminal Court erred in acquitting the respondent. Such decision will promote gender injustice
and the deterrent theory of punishment will be in no place. Every day a women employee will be
bullied and harassed by the employer.

25

Sohanlal Nayak V state of Orissa 1973 Cut LT 1037

26

Apparel Export Council v. A.K.Chopra AIR 1999 SC 625.

27

Indian Penal Code, R A Nelson, ninth edition.

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ISSUE: 3.WHETHER THE ZOOM AUTO COMPANY LTD HAS DEFAULTED IN

NOT ESTABLISHING A REDRESSAL MECHANISM FOR WORKING WOMEN
IN ITS COMPANY IN ACCORDANCE WITH THE DIRECTION GIVEN IN
VISHAKAS CASE?

It is most humbly submitted that, The Sexual Harassment Of Women At Work Place(Prevention,
Prohibition And Redressal) Act, 2013 which itself is based on Vishakhas Directions makes it
mandatory for establishing a redressal mechanism at workplace. The Honble Supreme Court

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held that that the guidelines and norms would be strictly observed in all workplace for the
preservation and enforcement of the right to gender equality of the working women. These
directions would be binding and enforceable in law until suitable legislation is enacted to occupy
the field.28

The guidelines laid down by Honble Supreme Court have precedential value and is binding on
all the courts to follow it. The law declared by the Supreme Court shall be binding on all courts
within the territory of India.29 The judicial pronouncement of the Supreme Court are said to
constitute the law of the land.30 Inferior courts cannot evade binding precedent of superior
courts.31 The Sexual Harassment of Women at Work Place (Prevention, Prohibition and
Redressal) Act, 2013 penalizes non compliance of the guidelines and imposes punishment on the
employer up to fine rupees Fifty Thousand.32

28

Vishaka v. State of Rajhasthan,AIR 1997 SC 3011

29

Art.141 of The Constitution of India, 1950.

30

31

P.Purushottam Reddy v. M.S.Pratap Steels Ltd, AIR 2002 SC 771.

Hilton v. Carolina Pub Rys. Commission (502 US 197) 1991

32

Section 26 of The Sexual Harassment Of Women At Work Place(Prevention, Prohibition And Redressal) Act,
2013

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COLLEGE, AHMEDNAGAR.

ISSUE:4. WHETHER THE ACT OF RESPONDENT IS VIOLATIVE OF SEXUAL

HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) ACT, 2013?

It is humbly submitted that the conduct of the respondent is violative of Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. No one should have to
work in a locker room atmosphere and no one has the right to sexually bully another person at
work.33 It is an Act to provide protection against sexual harassment of women at workplace and

33

Sexual Harassment in the Workplace, Mary L. Boland, 1st Edition, 2005.

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COLLEGE, AHMEDNAGAR.

for the prevention and redressal of complaints of sexual harassment and for matters connected
therewith or incidental thereto.34
Sexual Harassment is the most glaring example of human rights violation, gender inequality and
injustice. Each incidence of sexual harassment at the workplace also result in the violation of
fundamental rights under the Constitution , namely , right to gender equality and right to life and
liberty. That sexual harassment of a female at the workplace is incompatible with the dignity and
honour of women, needs no arguments. Sexual harassment is a demand that State Authority stand
behind womens refusal of sexual access in certain situations that previously were a masculine
prerogative.35 Sexual harassment, the event is not new to women. It is the law of injuries that is
new.36 The first successful claim against sexual harassment at the workplace is where psychiatric
damages were awarded by the English Court arising out of occupational stress. Thus it becomes
clear that injury might include stress. In such a case an action may be against an employer for
negligence. The Judgement in this case of great importance as it opens yet another area that is of
mental harassment as distinguished from the physical contact theory.37
Any act of gender- based violence that results in or is likely to result in, physical, sexual or
psychological harm suffering to women, including threats of such act, coercion or arbitrary
deprivation of liberty, whether occurring in public or in private life.38

[4.1] SEXUAL HARASSMENT VIOLATIVE OF FUNDAMENTAL RIGHTS.

34

Preamble of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

35

C Mackinnon: Sexual Harassment ; Its first decade in court

36

C Mackinnon ; Feminism Unmodified ; Discourse on life & Law

37

Walker v. Northumberland County Council (1995 ) IRLR 35

38

The Declaration on the Elimination of Violence against Women, 1993

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COLLEGE, AHMEDNAGAR.

It is most humbly submitted that the preamble of The Constitution of India assures the dignity of
the individual. Sexual harassment is a clear violation of the rights under Article 14, 15 and 21 of
the Constitution. One of the logical consequences of such an incident is also the violation of the
victim`s fundamental right under Article19 (1) (g) to practise any profession or to carry out any
occupation trade or business.39 The fundamental right to carry on any occupation, trade
profession depends on the availability of a safe working environment. Right to life means life
with dignity. The primary responsibility for ensuring such safe and dignity through suitable
legislation and the creation of a mechanism for its enforcement is of the legislature and the
legislation and the executive.40
In right to life and personal liberty as envisaged under the Indian Constitution, Life means
something more than mere Animal Existence. 41 The Honble Supreme Court widened the horizon
of Art. 21 and held that that any act which damages or injuries or interferes with the use of any
Limb or faculty of a person, either permanently or even temporarily, would be within the
inhibition of article 21.42 Right to Life includes the right to live with human dignity and all that
goes along with it.43 It is the fundamental right of everyone in this country to live with human
dignity, free from exploitation.44

[4.1] INTERNATIONAL LAW AND SEXUAL HARASSMENT.

39

Vishaka v. State of Rajasthan, AIR 1997 SC 3011.

40

Justice Verma Committee Report.

41

National Human Rights Commission v. State of Arunachal Pradesh, (1996)1SCC 742; Kehar Singh v. Union of
India AIR 1989 SC 653.
42

Kharak Singh v. State of UP, AIR 1963 SC 1295; Sunil Batra v. Delhi Admn. (1978) 4 SCC 494; Olga Tellis v.
Bombay Muncipal Corpn, AIR 1986 SC 180.
43

Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746.

44

Banddhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

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It is most humbly submitted that various conventions and treaties have recognised sexual
harassment as inhuman behaviour. The United Nations Committee on OCEDAW clarified that
Equality in employment can be seriously impaired when women are subjected to gender-specific
violence , such as sexual harassment at the workplace . Indias commitment to protection and
promotion of womens constitutional rights as well as respect for its obligations under various
International treaties is unequivocal. In England the Sexual Harassment is tried under section 154
of the Criminal Justice and Public Order Act 1994 .
In USA the Equal Employment Opportunities Commission issued a set of guidelines which
concisely defined sexual harassment under 19999(12) CILQ. It is basically the same definition as
was adopted by the Convention on Elimination of All Forms of Discrimination Against Women.
The evil consists of unwelcome sexual advances, requests for sexual favours & other verbal or
physical conduct of a sexual nature. In three situations, First, where submission to such conduct
is expressly or impliedly made a term or condition of employment. Secondly , when submission
to or rejection of such conduct is used as basis for employment decisions affecting an individual
(for e.g promotion) . Thirdly, where such conduct has the effect or purpose of unreasonably
interfering with an individuals work performance or creating an intimidating, hostile or
offensive work environment as recognised under USEEO Commission ,Nov ,1980 .Organization
of American States treats sexual harassment as an issue of violence against women, instead of a
discrimination issue. Accordingly, the Inter-American Convention on the Prevention, Punishment
and Eradication of Violence Against Women (Belem do Para) affirms the right of women to be
free from violence, including sexual harassment in employment or any other context, and
requires states to impose penalties and enact legal provisions to protect women from harassment
and other forms of violence. Article 2 states that sexual harassment in the workplace, educational
setting, health facilities, or any other place constitutes violence against women.
It is further stated under article 11 (23) of General Recommendations of The Convention on
Elimination of All Forms of Discrimination Against Women that such conduct can be humiliating
and may constitute a health and safety problem; it is discriminatory when the women has
reasonable grounds to believe that her objection would disadvantage her in connection with her
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employment, including recruitment or promotion or when it creates a hostile working

environment. Effective complaints, procedures and remedies including compensation should be
provided. Further under sec (24) it is stated that the States should include in their reports
information about sexual harassment and measures to protect women from sexual harassment
and other forms of violence or coercion in the workplace.
The International Covenant of Economic & Social Rights contains several provisions
particularly important for women. Article 7 recognises her Right to fair conditions of work and
reflects that women shall not be subjected to sexual harassment at the place of work which may
vitiate the working environment.
Taking Cognizance of this repression all over, the United Nations passed various instruments
with a focus on womens emancipation and with the object of enhancing the dignity of women
all over the world. The United Nations has come a long way from being a security agency to
become an organisation concerned with human rights, justice and equality. It has specially
generated enormous support for promotion and protection of womens rights and empowerment .
General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence
Against Women defines violence against women to include sexual harassment, which is
prohibited at work, in educational institutions, and elsewhere (Art. 2(b)), and encourages
development of penal, civil or other administrative sanctions, as well as preventative approaches
to eliminate violence against women (Art. 4(d-f)). The Convention on the Elimination of all
Forms of Discrimination against Women (CEDAW) directs States Parties to take appropriate
measures to eliminate discrimination against women in all fields, specifically including equality
under law, in governance and politics, the workplace, education, healthcare, and in other areas of
public and social life. (Arts. 7-16). Moreover, the Beijing Platform for Action, para. 178,
recognizes sexual harassment as a form of violence against women and as a form of
discrimination, and calls on multiple actors including government, employers, unions, and civil
society to ensure that governments enact and enforce laws on sexual harassment and that
employers develop anti-harassment policies and prevention strategies.

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The Charter of Fundamental Rights of the European Union specifically enshrines the right to be
free from discrimination on the basis of sex, and Article 23 obligates states to ensure equality
between men and women in all areas. This principle has been further elaborated through several
directives dealing with sexual harassment, including Directive 2006/54/EC related to equal
opportunities in employment and the Directive 2004/113/EC related to equal treatment in access
to goods and services. These directives require member states to incorporate into national law the
following principles:

The Charter of Fundamental Rights of the European Union prohibits discrimination on

the grounds of sex and enshrines the right to equal treatment between men and women in
all areas, including employment, work and pay, vocational training, and access to goods
and services;

Clarify that sexual harassment constitutes discrimination on the grounds of sex;

Prohibition, at a minimum, of behavior meeting the Directives definition of sexual

harassment in the workplace and in the provision of goods and services;

Encourage employers to take measures to combat all forms of sexual discrimination and
prevent harassment in the workplace.

The ILO Committee of Experts on the Application of Conventions and Recommendations

has confirmed that sexual harassment is a form of sex discrimination covered by the
Discrimination (Employment and Occupation) Convention (No. 111) of 1958. The ILOs
Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits sexual
harassment in the workplace.

The Preamble to the Declaration on the Elimination of Violence Against Women, 1993
states that the Declaration on the Elimination of Violence against Women is the first
international human rights instrument to exclusively deal with the issue of violence
against women. It affirms that violence against women violates, impairs or nullifies
womens human rights and their exercise of fundamental freedom.
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COLLEGE, AHMEDNAGAR.

Article 1 of the Declaration on the Elimination of Violence Against Women and the
Platform for Action from the Fourth World Conference on Violence Against Women both
define violence as:

Any act of gender-based violence that results in, or is likely to result in, physical, sexual
or psychological harm or suffering to women, including threats of such acts,coercion or
arbitrary deprivation of liberty, whether occurring in public or private life.

Thus, the Declaration gives a broad definition to the word violence and includes
psychological harm inflicted on women.

Violence against women, according to Article 2 of the Declaration, would encompass but
not be limited to

(a) Physical, sexual and psychological violence occurring in the family including battery,
sexual abuse of female children in the household, dowry related violence, marital
rape,female genital mutilation and other traditional practices harmful to women, non
spousal violence and violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community
including rape,sexual abuse, sexual harassment and intimidation at work in educational
institutions and elsewhere, trafficking in women and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned by the state,
wherever it occurs.

Giving directions to States, it was declared under Art. 4 that States should condemn
violence against women and should not invoke any custom, tradition or other religious
consideration to avoid their obligations with respect to its elimination. States should
pursue by all appropriate means and without delay a policy of eliminating violence
against and should consider the possibility of developing national plans of actions to
promote the protection of women against any form of violence, or to include provisions
for that purpose in plans already existing, taking into account, as appropriate such
cooperation as can be provided by non-governmental organizations;

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1. Adopt measures directed towards elimination of violence against women who are
especially vulnerable to violence at workplace.
2. Recognize the important role of womens movements and non-governmental
organizations worldwide in raising awareness and alienating the problem of violence
against women.

PRAYER

In light of the issues raised, arguments advanced and authorities cited the Appellant most humbly
and respectfully prays before this Honble Court that it may be pleased to:

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I.

Set aside the judgment of acquittal passed by the Court of Judicial Magistrate,
Aurangabad and upheld by the Court of Session, Aurangabad.

II.
III.

Convict respondent under section 354A and 509 of Indian Penal Code, 1860.
Penalize Zoom Auto Company Ltd. for non compliance of guidelines laid down by
Honble Supreme Court in Vishakas Case.

IV.

Award compensation to the victim Miss. XYZ.

The Appellant additionally prays that the Court may grant any provisional relief that it may deem
fit. The Court may also make any such order as it may deem fit in terms of equity, justice and
due conscience.
And for this act of kindness the Appellant shall as duty bound ever humbly pray.

Respectfully submitted,

Counsel for Appellant

VERIFICATION

State of Maharashtra on solemn affirmation states that, the content, facts and information
mentioned in the appeal are true and correct to the best of my knowledge, belief and information.

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