Supreme Court Appoints Amicus Curiae

The Supreme court appoints Amicus Curiae during compliance hearing to ensure compliance of directions issued in the case of Aureliano Fernandes Vs. State of Goa and Others


The Supreme Court of India stated in the case of Aureliano Fernandes Vs. State of Goa and Others that even after the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (also known as the POSH Act) was passed more than ten years ago, the Act’s implementation and enforcement are still inadequate. The Supreme Court issued multiple directives to ensure the POSH Act was implemented effectively in order to address these shortcomings. This Act, among other things, requires all employers with ten or more employees to form an internal committee to look into complaints of sexual harassment and specifies the process for these types of investigations.

Factual background of the case

The internal committee of Goa University (“University”) opened an investigation into Mr. Aureliano Fernandes (“Appellant”) after receiving several complaints about him from female students who claimed he had harassed them sexually. The internal committee determined that the appellant’s actions amounted to grave misconduct and recommended that the University terminate his services after passing an ex-parte order against him due to his repeated absences from the inquiry proceedings. Due to the seriousness of the accusations made against him, the appellant was subsequently let go and barred from working for the University in the future.

Through a writ petition, the appellant contested the aforementioned order before the Bombay High Court (Goa Bench) (hereinafter referred to as the “High Court”). The appellant had been given several opportunities by the internal committee to appear before it, but he had chosen not to do so, the High Court noted. It was not acceptable to hold the internal committee accountable for moving forward ex parte against him under such conditions. The appellant’s argument that the internal committee was unjustly formed, or at the very least that its membership included individuals who were beneath him in the department, was also dismissed as without merit.

Furthermore, it was denied that the investigation had been carried out in an excessively hurry and that the appellant had not been given a fair and reasonable chance to present his case. Therefore, finding no merit in the petition in question, the High Court dismissed it, concluding that neither the case’s service rules nor natural justice principles had been violated.

Ruling and directions issued by the court

The appellant missed multiple dates due to medical reasons, but the Supreme Court noted that the investigation was finished in a “tearing hurry” and that the appellant was not given a reasonable amount of time to participate in the proceedings. The expeditious conduct of the inquiry proceedings violated the principles of natural justice, as it failed to provide the appellant with a fair opportunity to be heard. Following the principles of natural justice, the matter was returned to the internal committee for the conduct of a new investigation after the Supreme Court invalidated and set aside the High Court’s decision due to procedural irregularities.

Even after all this time, the Supreme Court discovered significant shortcomings in the POSH Act’s enforcement through this case. The Supreme Court noted that no matter how beneficial this law may be, it will never be able to give women the respect and dignity they deserve in the workplace unless all State and non-State actors take a proactive stance and strictly adhere to the enforcement regime. Thus, the Supreme Court, among other things, issued the following directives:

  1. In order to ensure that all relevant ministries, departments, government organizations, authorities, public sector undertakings, institutions, bodies, etc. have established LCs (local committees) or ICs (internal committees), as applicable, and that the composition of the aforementioned committees strictly complies with the provisions of the POSH Act, the Union of India, the State Governments, and the Union Territories must undertake a time-bound exercise.
  2. Make sure that all relevant information is easily accessible on the website of the relevant authority, functionary, organization, institution, or body, as the case may be. This information should include the necessary details about the constitution and composition of LCs and ICs, as well as the contact details and email addresses of the designated person(s) and the procedure for submitting an online complaint. Periodically, the information provided will also be updated.
  3. It is imperative that the authorities, managements, and employers take prompt and efficient action to educate members of the LCs and ICs about their responsibilities and the proper process for conducting an investigation into allegations of sexual harassment in the workplace. This process should begin as soon as the complaint is received and continue until the investigation is completed and the report is turned in
  4. The POSH Act provisions, rules, and pertinent regulations must be regularly taught to women’s groups and employees by the authorities, management, and employers through orientation programs, workshops, seminars, and awareness campaigns.

Findings in Compliance hearing

The current hearing was a compliance hearing followed by the  directions issued by the supreme court in the above mentioned case, During the review, it was discovered that the necessary affidavits had not yet been submitted by the Union of India, a number of State Governments, Union Territories (with the exception of the UT of Ladakh), the National Capital Territory (NCT), the Railways, Goa, Chandigarh, Bihar, and Nagaland.

In addition, the Court issued fresh orders requiring the submission of affidavits within four weeks to the Secretaries of pertinent Ministries of the Union of India as well as the Chief Secretaries of all noncompliant States/UTs. After assessing adherence to guidelines issued on May 12, 2023, the Supreme Court designated an Amicus Curiae to support a case involving the application of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act (POSH). During the review, it was discovered that the necessary affidavits had not yet been submitted by the Union of India, a number of State Governments, Union Territories (with the exception of the UT of Ladakh), the National Capital Territory (NCT), the Railways, Goa, Chandigarh, Bihar, and Nagaland.

Nearly a year after the initial orders, the bench, which included Justices Hima Kohli and Ahsanuddin Amanullah, voiced concerns about the non-compliance. They instructed the Court’s Registry to furnish the designated Amicus Curiae with the judgment and all pertinent affidavits. These documents are to be assembled by the Amicus Curiae, who will also draft a status report. The case has been scheduled for further hearing after the Court reopens in July.

-By Anaida Khan Pursuing 4th year of BALLB (Hons.) from Dharmashashtra National Law University, Jabalpur

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