Kerala High Court
Women In Cinema Collective vs State Of Kerala on 17 March, 2022
W.P.(C) Nos.33994, 34273 & 36059 of 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
WP(C) NO. 33994 OF 2018
PETITIONERS:
1 WOMEN IN CINEMA COLLECTIVE
(REG NO EKM/TC/643/2017)
MAMANGAM ARTS COLLECTIVE, STADION 68, 3 RD FLOOR,
BEHIND KALOOR INTERNATIONAL STADIUM, PALARIVATTOM,
KOCHI-682025,
REPRESENTED BY ITS AUTHORISED SIGNATORY J. PADMAPRIYA.
2 RIMA KALLINGAL RAJAN,
PRESIDENT, WOMEN IN CINEMA COLLECTIVE, 1111, 11TH
FLOOR, PURVANKARA GRANDBAY,
MARINE DRIVE,
ERNAKULAM - 682018.
BY ADVS.
SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.VIJAY V. PAUL
SMT.KARTHIKA MARIA
SMT.VEENA RAVEENDRAN
SRI.ANIL SEBASTIAN PULICKEL
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, CULTURAL AFFAIRS,
CULTURAL AFFAIRS DEPARTMENT,
1ST FLOOR, SOUTH BLOCK,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001
2 THE SPECIAL SECRETARY,
DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, GOVERNMENT
W.P.(C) Nos.33994, 34273 & 36059 of 2018 2
OF KERALA,
1ST FLOOR, SOUTH BLOCK, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 ASSOCIATION OF MALAYALAM
MOVIE ARTISTES (A.M.M.A),
P.T.C. ROAD, THYCAUD.P.O., THIRUVANANTHAPURAM -
695014, REPRESENTED BY ITS GENERAL SECRETARY.
ADDL.R4
CINE AND T V ARTISTS ASSOCIATION(CINTAA)
221, KARTIK COMPLEX, 2ND FLOOR, OPP.LAXMI INDUSTRIAL
ESTATE, NEW LINK ROAD, ANDHERI(W), MUMBAI-400053
REPRESENTED BY MR. AMIT BEHL, 221, KARTIK COMPLEX, 2ND
FLOOR, OPP.LAXMI INDUSTRIAL ESTATE, NEW LINK ROAD,
ANDHERI(W), MUMBAI-400053
ADDL.R4 IS IMPLEADED AS ADDL. R4 ASPER ORDER DATED
3/12/2021 IN I.A 1/21.
BY ADVS.
SMT.AMMU CHARLES FOR R3
R4 BY MR.TALISH RAY
SRI.A.S.DILEEP
SRI.BINOD.P.
MS.SUSHEELA DILIP
MS.SUNITHA OJHA
SRI.SUDEEP ARAVIND PANICKER
SRI.P.S.MURALI
SHRI.N.MANOJ KUMAR, STATE ATTORNEY FOR R1 & R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.03.2022, ALONG WITH WP(C).34273/2018, 36059/2018, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.33994, 34273 & 36059 of 2018 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
WP(C) NO. 34273 OF 2018
PETITIONER:
WOMEN IN CINEMA COLLECTIVE(REG NO.EKM/TC/643/2017)
MAMANGALAM ARTS COLLECTIVE, STADION 68, 3RD FLOOR,
BEHIND KALOOR INTERNATIONAL STADIUM, PALARIVATTOM,
KOCHI-682 025, REPRESENTED BY ITS AUTHORISED
SIGNATORY, MS.REMYA NAMBEESAN @ REMYA.S.UNNI.
BY ADVS.
SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.VIJAY V. PAUL
SMT.KARTHIKA MARIA
SMT.VEENA RAVEENDRAN
SRI.ANIL SEBASTIAN PULICKEL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, CULTURAL AFFAIRS,
CULTURAL AFFAIRS DEPARTMENT, 1ST FLOOR, SOUTH BLOCK,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE SPECIAL SECRETARY
DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, GOVERNMENT
OF KERALA, IST FLOOR, SOUTH BLOCK, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 KERALA FILM CHAMBER OF COMMERCE
REGISTRATION NO.40 OF 1956, FILM CHAMBER BUILDING, 2ND
FLOOR, MG ROAD, KOCHI-682035, REPRESENTED BY ITS
GENERAL SECRETARY.
W.P.(C) Nos.33994, 34273 & 36059 of 2018 4
4 KERALA FILM PRODUCERS
ASSOCIATION REGISTRATION NO.ER 508/89, EVERSHINE
BUILDING, PULLEPPADY JUNCTION, PULLEPPADY, ERNAKULAM-
682 018.
5 FILM EMPLOYEES FEDERATION OF KERALA (FEFKA)
SHOP NO.44/2608, FREEDOM ROAD, KALOOR, ERNAKULAM-682
017, REPRESENTED BY ITS GENERAL SECRETARY.
6 MALAYALAM CINEMA TECHNICIANS ASSOCIATION (MACTA)
VATTOLY ESTATE, ST. VINCENT ROAD, KACHERIPADY,
ERNAKULAM-682018, REPRESENTED BY ITS GENERAL
SECRETARY.
7 KERALA FILM DISTRIBUTORS ASSOCIATION
ARANGATH CROSS ROAD, ERNAKULAM NORTH (SOPANAM SQUARE),
ERNAKULAM-682018, REPRESENTED BY ITS GENERAL
SECRETARY.
8 THE REGIONAL OFFICER
CENTRAL BOARD OF FILM CERTIFICATE (CBFC),
CHITHRANJALI STUDIO COMPLEX, THIRUVALLAM,
THIRUVANANTHAPURAM-695027.
ADDL.R9 KERALA WOMEN'S COMMISSION
REPRESENTED BY DIRECTOR, PATTOM PALACE P.O.,
THIRUVANANTHAPURAM -695004
ADDL.R9 IS IMPLEADED VIDE ORDER DATED 2/2/2022 IN IA
1/22 IN WPC 34273/18 (S)
BY ADVS.
SRI.RONY JOSE FOR R5
SRI.MOHAMMED ZIYAD FOR R4 & R6
SRI.R.MURALEE KRISHNAN FOR R7
SRI.JAISHANKAR V.NAIR, CGC, FOR R8
SMT.A.PARVATHI MENON FOR R9
SRI.S.SUJIN, SRI.N.N.SUGUNAPALAN(SR.) FOR R3
HRI.N.MANOJ KUMAR, STATE ATTORNEY FOR R1 & R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.03.2022, ALONG WITH WP(C).33994/2018 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.33994, 34273 & 36059 of 2018 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
WP(C) NO. 36059 OF 2018
PETITIONER:
CENTRE FOR CONSTITUTIONAL RIGHTS RESEACH AND ADVOCACY (CCRRA)
REPRESENTED BY CO-ORDINATOR, ADV.MAYA N.K., D/O.LATE
N.P.KANNAN, AGED 43 YEARS, 58/340, MANAVALAN APARTMENTS,
AMULYA STREET, KOCHI-18.
BY ADV SANDHYA RAJU
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SPECIAL SECRETARY, DEPARTMENT OF
WOMAN AND CHILD DEVELOPMENT, ROOM NO.620, 1ST FLOOR,
SOUTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM- 695001.
2 THE DISTRICT COLLECTOR
DISTRICT COLLECTOR, DISTRICT COLLECTORATE, FIRST
FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030.
3 KERALA TELEVISION FEDERATION
KAIRALI TOWERS, ASAN SQUARE, UNIVERSITY COLLEGE P.O.,
PALAYAM, TRIVANDRUM - 695 034.
4 INDIAN NEWSPAPER SOCIETY
REPRESENTED BY ITS REGIONAL COMMITTEE MEMBER,
MATHRUBHUMI AROGYAMASIKA, THE MATHRUBHUMI PRINTING AND
PUBLISHING CO. LTD., M.J. KRISHNAMOHAN MEMORIAL
BUILDING, K.P. KESAVAMENON ROAD, KOZHIKODE, KERALA -
673 001.
5 KERALA UNION OF WORKING JOURNALISTS
REPRESENTED BY THE GENERAL SECRETARY, KESARI
BUILDINGS, PULIMOOD, THIRUVANANTHAPURAM - 695 011.
W.P.(C) Nos.33994, 34273 & 36059 of 2018 6
6 FILM EMPLOYEES FEDERATION OF KERALA (FEFKA)
REPRESENTED BY ITS SECRETARY, SHOP NO. 44/2471,
FREEDOM ROAD, KALOOR, ERNAKULAM, KERALA - 682 017.
7 INDIAN NATIONAL CONGRESS PARTY
KERALA CHAPTER, REPRESENTED BY ITS PRESIDENT, INDIRA
BHAWAN, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 010.
8 BHARATHIYA JANATHA PARTY
REPRESENTED BY ITS STATE OFFICE SECRETARY, B.J.P.
STATE OFFICE(KRISHNANJALI), NEAR LAW COLLEGE JN.,
KUNNUKUZHI P.O., THIRUVANANTHAPURAM - 695 037.
9 COMMUNIST PARTY OF INDIA (MARXIST)
KERALA CHAPTER, REPRESENTED BY THE SECRETARY, KERALA
STATE COMMITTEE, A.K.G. CENTRE, A. RAGHAVAN ROAD,
THIRUVANANTHAPURAM - 695 034.
BY ADVS.
SMT.AMBIKA DEVI, SPECIAL GOVERNMENT PLEADER FOR R1 &
R2
SRI.RONY JOSE FOR R6
KUM.ANAGHA LAKSHMY RAMAN FOR R3 & R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.03.2022, ALONG WITH WP(C).33994/2018 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.33994, 34273 & 36059 of 2018 7
JUDGMENT
SHAJI P.CHALY,J.
Captioned writ petitions are all Public Interest Litigations filed by various
organisations seeking to constitute a grievance redressal mechanism against the
sexual harassment as per the directions of the Hon'ble Supreme Court in
Vishakha v. State of Rajasthan [(1997) 6 SCC 241] and in accordance with
the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013, hereinafter called, 'Act, 2013'.
2. Even though the reliefs sought for in the writ petitions are similar in
nature against the various organisations having connections with film, Television
and other allied activities, and against various political organisations, the issues
are to be adjudicated, taking into account the provisions of the Act, 2013 since
primarily it will have to be decided as to whether the provisions of the Act, 2013,
applies to the organisations in question. Therefore, it is only appropriate that the
reliefs sought for in the captioned writ petitions are extracted separately in order
to have a proper understanding of the issues.
W.P.(C) Nos.33994, 34273 & 36059 of 2018 8
The reliefs sought for in W.P.(C) No.33994 of 2018 are as follows:
1) Issue a writ of mandamus or any other writ order or direction declaring
that the 3rd Respondent Association is legally obliged to constitute a
complaints committee against sexual harassment for its members in
accordance with the guidelines laid down by the Honourable Supreme Court
in Vishaka v. State of Rajasthan reported in (1997) 6 SCC 241 and the
Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013;
2) Issue a writ of mandamus or any other appropriate writ order or
direction compelling the Respondents to appoint a complaints committee
against sexual harassment, comprising of suitable and independent
members, for the 3rd Respondent Association in accordance with the
guidelines laid down by the Honourable Supreme Court in Vishaka v.
State of Rajasthan reported in (1997) 6 SCC 241 and the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 within a time limit prescribed by this Hon'ble Court;
3) Issue such other appropriate writ, order or direction which this Hon'ble
Court may deem fit and just in the circumstances of the case.
The reliefs sought for in W.P.(C) No.34273 of 2018 are as follows:
1) Issue a writ of mandamus or any other writ, order or direction declaring
that the Respondent Associations are legally obliged to constitute a
complaints committee against sexual harassment for its members in
W.P.(C) Nos.33994, 34273 & 36059 of 2018 9
accordance with the guidelines laid down by the Honourable Supreme
Court in Vishaka v. State of Rajasthan reported in (1997) 6 SCC 241
and the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 and comply with the various
guidelines and the provisions of Act 14 of 2013 for prevention of sexual
harassment at work places in letter and spirit;
2) Issue a writ of mandamus or any other appropriate writ, order or
direction compelling the third Respondent and its members to ensure that
a complaints committee against sexual harassment, comprising of suitable
and independent members, in accordance with the guidelines laid down by
the Honourable Supreme Court in Vishaka v. State of Rajasthan
reported in (1997) 6 SCC 241 and the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 and comply
with the various guidelines and the provisions of Act 14 of 2013 for
prevention of sexual harassment at work places in letter and spirit;
3) Issue a writ of mandamus or any other appropriate writ, order or
direction compelling the Fourth Respondent and its members to ensure
that a complaints committee, comprising of suitable and independent
members, in accordance with the guidelines laid down by the Honourable
Supreme Court in Vishaka v. State of Rajasthan reported in (1997) 6
SCC241 and the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 is constituted to enquire into
complaints which arise during the shooting and pre and post production
work of a Cinematograph and also for its regular employees and comply
with the various guidelines and the provisions of Act 14 of 2013 for
prevention of sexual harassment at work places in letter and spirit;
4) Issue a writ of mandamus or any other appropriate writ, order or
direction compelling the Fifth Respondent and the member Unions
W.P.(C) Nos.33994, 34273 & 36059 of 2018 10
affiliated to to ensure that a complaints committee comprising of suitable
and independent members, in accordance with the guidelines laid down by
the Honourable Supreme Court in Vishaka v. State of Rajasthan
reported in (1997) 6 SCC 241 and the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 is constituted
to enquire into complaints which arise during the shooting and pre and
post production work of a Cinematograph and comply with the various
guidelines and the provisions of Act 14 of 2013 for prevention of sexual
harassment at work places in letter and spirit;
5) Issue a writ of mandamus or any other appropriate writ, order or
direction compelling the Sixth Respondent to ensure that a complaints
committee comprising of suitable and independent members, in
accordance with the guidelines laid down by the Honourable Supreme
Court in Vishaka v. State of Rajasthan reported in [(1997) 6 SCC 241]
and the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 is constituted to enquire into
complaints which arise during the shooting and pre and post production
work of a Cinematograph and also for its regular employees and comply
with the various guidelines and the provisions of Act 14 of 2013 for
prevention of sexual harassment at work places in letter and spirit;
6) Issue a writ of mandamus or any other appropriate writ, order or
direction compelling the Seventh Respondent and its members to ensure
that a complaints committee comprising of suitable and independent
members, in accordance with the guidelines laid down by the Honourable
Supreme Court in Vishaka v. State of Rajasthan reported in [(1997) 6
SCC 241] and the Sexual Harassment Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 is constituted to enquire into
complaints relating to its employees and comply with the various
W.P.(C) Nos.33994, 34273 & 36059 of 2018 11
guidelines and the provisions of Act 14 of 2013 for prevention of sexual
harassment at work places in letter and spirit; of
7) Issue a writ of mandamus or any other appropriate writ, order or
direction commanding the Eighth Respondent to ensure that
Cinematographs produced by Producers who have constituted a
complaints committee comprising of suitable and independent members,
in accordance with the guidelines laid down by the Honourable Supreme
Court in Vishaka v. State of Rajasthan ported in [(1997) 6 SCC 241]
and the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 to enquire into complaints which
arise during the shooting and pre and post production work of a
Cinematograph, which is duly certified by the 3rd Respondent, alone are
granted Certificates of Registration;
8) Issue such other appropriate writ, order or direction which this Hon'ble
Court may deem fit and just in the circumstances of the case
The reliefs sought for in W.P.(C) No.36059 of 2018 are as follows:
a) To Issue a Writ of mandamus, order or direction, directing the 1 st
Respondent to conduct an Enquiry into the compliance of the Sexual
harassment at Workplace (Prevention, Prohibition and Redressal) Act,
2013 in the Respondent 3 to 9 registered in the state;
b) To issue a writ of mandamus , order or direction directing the
Respondents to set up a body for the conduct of a social auditinto the
establishment and effective functioning of the Internal committee under
the Sexual Harassment at workplace within Respondents 3 to 9;
c) To issue a writ of mandamus, order or direction, directing the 1 st
W.P.(C) Nos.33994, 34273 & 36059 of 2018 12
Respondent to issue necessary guidelines for the monitoring and
implementation of the Sexual Harassment At Workplace (Prevention,
Prohibition And Redressal) Act in State of Kerala.
d) Any other relief as this court may think fit.
3. For the disposal of the writ petitions, we are relying upon the
pleadings put forth by the petitioners in W.P.(C) No.33994/2018.
4. The State Government has filed a counter affidavit in the said writ
petition and has filed adoption memos in the other two writ petitions. Whenever
the pleadings of the other writ petitions are to be relied upon, reference will be
made separately.
5. In W.P.(C) No.33994/2018, first petitioner is an organisation called
'Women in Cinema Collective', which is a society registered under section 12 of
the Travancore Cochin Literary, Scientific and Charitable Societies Registration
Act, 1955, apparently constituted for the welfare of women in Indian Cinema
with the objectives of ensuring equal space and equal opportunities for all
women working in Cinema with respect to all creative and other processes and
activities concerning the making of cinema and all related events; and also for
ensuring the dignity of women working in cinema in their workspaces by
promoting awareness and preserving the rights of women as guaranteed under
the Constitution of India.
W.P.(C) Nos.33994, 34273 & 36059 of 2018 13
6. Second petitioner is the President of the 1st petitioner society. Petitioner
in W.P.(C) No.34273/2018 is also 'Women in Cinema Collective'; petitioner in
W.P.(C) No.36059/2018 is claiming to be a registered organisation working on
the issues relating to women and children viz., Centre for Constitutional Rights
Research & Advocacy (CCRA).
7. The paramount contention advanced is that the 3 rd respondent
Association viz., Association of Malayalam Movie Artists (AMMA), which is having
registered office at Thiruvananthapuram, is an Association registered under the
provisions of the Travancore Cochin Literary, Scientific and Charitable Societies
Registration Act, 1955 and its membership is restricted to Actor Artists in feature
films. According to the petitioners, as per the bye-laws of the said society, some
of the objectives are to protect the rights of the its members, to insist, maintain
and develop self-discipline and professional & social ethics among members; to
find out the issues concerning the artists; to analyse them and to find out
possible remedies; and to act as arbitrators in all disputes that may be submitted
to them for arbitration by the members and others in film industry.
8. According to the petitioners, 3 rd respondent association, in spite of being
the dominant professional Association for Actor artists in the Malayalam film
industry, it has failed to implement a grievance redressal mechanism for its
W.P.(C) Nos.33994, 34273 & 36059 of 2018 14
members against the sexual harassment at the workplace. It is also the case of
the petitioners that the omission of the 3 rd respondent Association is striking at a
time when revelations or widespread sexual assault and harassment of women in
film industries across the country have come out.
9. Therefore, the sum and substance of the contention advanced is that
the members of the 3rd respondent Association are helpless and without any
adequate remedy against the sexual harassment, directed against them in the
professional context. Accordingly, it is submitted that the inaction of the 3 rd
respondent association in setting out a grievance redressal mechanism against
the sexual harassment is also a breach of the Vishakha guidelines laid down by
the Hon'ble Supreme Court and also the violation of the provisions of the Act,
2013. These are the basic background facts projected by the writ petitioners, in
order to secure the reliefs sought for in the writ petition.
10. In W.P.(C) No.36059/2018, apart from the film industry, allegations of
sexual harassment are raised on members of a political party; and so also there
are allegations of sexual harassment against women, who are members of Kerala
Working Women Journalists and certain paper reports are also referred to.
11. Therefore, the sum and substance of the contention advanced therein
is that the aforesaid respondent organisations would also come under the
W.P.(C) Nos.33994, 34273 & 36059 of 2018 15
provisions of the Act, 2013. However, basically the relief sought for in the writ
petition would show that directions are sought to be issued to the State
Government to conduct an enquiry into the compliance of the provisions of the
Act, 2013 in the respondents 3 to 9 organisations viz., Kerala Television
Federation, Thiruvananthapuram, Indian Newspaper Society, Kozhikode, Kerala
Union of Working Journalists, Thiruvananthapuram, Film Employees Federation of
Kerala (FEFKA), Ernakulam, Indian National Congress Party, Kerala Chapter,
Thiruvananthapuram, Bharatiya Janata Party, Thiruvananthapuram and
Communist Party of India (Marxist), Kerala Chapter, Thiruvananthapuram, and
for a further direction to the respondents to set up a body for the conduct of a
social auditing in the establishment and effective functioning of the internal
committee under the Act, 2013.
12. The 3rd respondent in W.P.(C) No.33994/2018 has filed a counter
affidavit basically contending as follows;
13. It is submitted by the 3 rd respondent that in the case of a film
production, the workplace varies from different stages of pre-production, post-
production etc., and predominantly the workplace of film production will be the
shoot location; in a film shoot location, other than the members of the 3 rd
respondent, the major participants will be technicians, junior artists, production
W.P.(C) Nos.33994, 34273 & 36059 of 2018 16
team etc., in other words, in shoot location, numbers of technicians, junior
artists, production team etc. will outweigh the number of members of the 3 rd
respondent; the FEFKA is a trade union of all technicians in film industry, which
consists of 19 sub-unions, and each sub-union represents different sectors of
technicians in film industry such as make-up artists, junior artists, cameraman,
editors, directors etc.,; other than FEFKA, Kerala Film Chamber of Commerce and
Kerala Film Producers Association, are the other predominant associations in the
film industry.
14. It is further submitted that in the case of a film production, 3 rd
respondent is not an 'employer' and it is only an association of Actor Artistes in
Malayalam feature films; there is no employer-employee relationship between
AMMA and its members; 3rd respondent also does not have any control over any
film production since the artists are individually booked directly by the film
producers/film production house and all remunerations are paid by the said film
producers/film production house directly to each artists and other technicians and
as such, employer of a film production is the film producer/film production house
of that particular film production; if any sexual harassment in workplace occurs,
in order to have an effective grievance mechanism, a committee constituted by
the employer will be a suitable body; the Act also validates a grievance
W.P.(C) Nos.33994, 34273 & 36059 of 2018 17
mechanism constituted by the employer; the number of members of the 3 rd
respondent in a shoot location will only be nominal when compared to the
presence of members of other associations and the grievance mechanism, if any,
created by the 3rd respondent will not be effective, it is because of the fact that
3rd respondent has no control over other members of technician and producers
association.
15. It is also pointed out that the 3 rd respondent, complying with the spirit
of the Vishakha Guidelines issued by the Hon'ble Supreme Court, has already
formed a Women Cell Grievance Forum consisting of three senior lady artists in
Malayalam film industry; even though Women Cell Grievance Forum within the 3 rd
respondent Association is already in existence and is fully functional, the object of
the Act will not be fulfilled as the above Women Cell Grievance Forum has no
control over the members of Technician Association and Producers Association;
so also, the grievance as pointed out by the petitioners cannot be effectively
redressed unless and until a proper & effective Grievance Forum is constituted in
respect of workplace in film industry; Chapter IV of the Act, 2013 deals with
various procedures to deal with the complaint and Chapter V of the Act, 2013
speaks about the procedures to be followed in an inquiry into the complaint.
16. Therefore, according to the 3rd respondent Association, in order to
W.P.(C) Nos.33994, 34273 & 36059 of 2018 18
discharge the functions as contained in Chapter IV and V of the Act, 2013, an
effective Grievance Forum is to be constituted by the employer. Otherwise, the
whole procedure will become a mockery and the objectives of the Act, 2013
cannot be fulfilled.
17. According to the 3rd respondent, they always encourage a proper and
effective Women Cell Grievance mechanism so as to provide protection against
sexual harassment at work place; however, in the case of film production, since
the workplace mainly consists of members from other associations also, a
Women Cell Grievance mechanism constituted by respondent association will not
serve the purpose intended by the Act, 2013; moreover, the Act, 2013 provides
that the employer is the responsible person to constitute a proper Women Cell
Grievance mechanism in the workplace and Chapter VI of the Act deals with
duties of the employer.
18. It is further submitted that production of a feature film in Malayalam
film industry commences when the producer and director registers the film script
with the Kerala Film Chamber of Commerce; any project without such registration
with Kerala Film Chamber of Commerce will not be qualified for final censorship
certification; for proper implementation of the provisions of the Act, 2013 in each
workplace in the film industry, the producers/production house can give a panel
W.P.(C) Nos.33994, 34273 & 36059 of 2018 19
of committee selected within employees of that particular film production in
accordance with the provisions of the Act at the time of registration with Kerala
Film Chamber of Commerce so that the said Committee can function within the
workplace of such film, AMMA is not against the constitution of an internal
complaints committee under the Act, however, as the same would not be an
effective remedy, a possible remedy is to constitute a committee consisting of
representatives of all Associations in the film industry so that the said committee
can effectively discharge the duties as contemplated under the Act, 2013.
19. Petitioners have filed a reply affidavit to the said counter affidavit
basically reiterating the stand adopted in the writ petition and pointing out
certain individual aspects that have taken place at various places, which
according to the petitioners, are workplaces in contemplation of section 2(o) of
Act, 2013.
20. The State Government has also filed a detailed counter affidavit
basically submitting that in the said writ petition, no reliefs are sought against the
State Government. That apart it is specifically stated that in contemplation of
section 5 of Act, 2013, the State Government has notified the District Collectors
of all Districts as the District Officers to exercise the powers to discharge the
functions under the Act, 2013. It is also submitted that the District Officers have
W.P.(C) Nos.33994, 34273 & 36059 of 2018 20
constituted a Local Complaints Committee in contemplation of section 6 of Act,
2013 and designated 258 Child Development Project Officers of the Women &
Child Development as Nodal Officers as per section 6(2) of Act, 2013.
21. These aspects are evident from Exhibit R2(b) and R2(d), produced
along with the counter affidavit. It is further pointed out that in order to have
implementation of the provisions of the Act, 2013, administrative sanction was
accorded for the advertisement through newspapers as per Exhibit R2(d)
Government Order dated 21.6.2017. However, it is submitted that it is the duty
of the employer to constitute the Internal Complaints Committee in
contemplation of section 4 of Act, 2013. It is also the submission of the State
Government that the Local Complaints Committee have been constituted in all
the 14 Districts and Government have issued orders for re-designating the
Directorate of Women & Child Development Department as the nodal agency for
implementing the Act, 2013, evident from Exhibit R2(c) Government Order dated
13.8.2018.
22. Whatever that be, the Government have raised a contention that the
definition of 'employers' in section 2(g) of the Act, 2013 does not cover a
voluntary organisation like Association of Malayalam Movie Artistes and there is
no employer-employee relationship between this Association and Artists in
W.P.(C) Nos.33994, 34273 & 36059 of 2018 21
Malayalam Industry, and therefore, the employer-employee relationship does not
exist and the Government is constrained to legally compel the Association of
Malayalam Movie Artists to form an Internal Complaints Committee as per the
statute. But it is also stated that the Government feels that since a large number
of women are working in the Malayalam film industry and sometimes some of
them have to work at odd places at odd hours, the Association shall voluntarily
form guidelines to ensure the safety and security as well as uphold the dignity of
all women working in Malayalam film industry. It is also submitted that such
guidelines should compel the Producers/Directors or Production Controller/Site-in-
Charge, to provide the requisite safety measures on film locations, when women
are working in a room or a remote place or at odd hours of night.
23. Therefore, basically the State Government states that nothing prohibits
the Association of Malayalam Movie Artists from forming an Internal Complaints
Committee to prescribe and modify the guidelines as well as to inquire into the
complaints, if any, raised by any woman member of the Association. Other
aspects are also put forth to the effect that the Airline industry has formed
committees in order to deal with the harassment against women. It is also
submitted that several Medical Associations prescribed guidelines as code of
conduct or code of ethics to Doctors to uphold modesty of women during physical
W.P.(C) Nos.33994, 34273 & 36059 of 2018 22
examination or surgery.
24. Petitioners have filed a reply affidavit to the counter affidavit filed by
the State Government also and submit that the contention advanced by the State
Government that the Act, 2013 may not apply to the Association of Malayalam
Movie Artists, is not correct since the said contention is against the scope and
purpose of the Act, 2013. Petitioners have produced along with the said reply
affidavit, Exhibit P5 Extraordinary General meeting of Producers Guild of India,
wherein a policy is adopted by the said organisation in order to tackle the
complaints, malicious complaints etc., apparently to take action in accordance
with the provisions of the Act, 2013.
25. The 4th respondent in W.P.(C) No.33994/2018 has got itself
impleaded, which is a Cine & T.V.Artists Association (CINTAA) apparently
registered at Mumbai. Contentions are advanced by the said organisation also in
support of the contentions raised by the writ petitioners, basically relying upon
the submissions made in the affidavit filed along with the impleading petition.
The submissions contained in the affidavit are basically relying upon the
provisions of the Act, 2013 and we propose to consider those aspects together.
26. In W.P.(C) No.34273/2018, the 5 th respondent therein i.e., the Film
Employees Federation of Kerala (FEFKA), Ernakulam has filed a detailed counter
W.P.(C) Nos.33994, 34273 & 36059 of 2018 23
affidavit basically refuting the allegations and submitted that it is a federation
comprising of 18 registered trade unions as its members and associated with the
Malayalam Film Industry, which includes the Directors Union, Production
Executive Union etc. That apart, it is stated that the prime objective of FEFKA is
to act as a representative body for the purpose of protecting the rights and
welfare of its members and as a federation of several registered trade unions. Its
primary duty is to function as a representative body and use the power of
collective bargaining for acting on behalf of its members and for protecting the
rights of its members. Further it is submitted that to function in the Malayalam
Film Industry, it is not necessary to be a member of FEFKA. But once a person
becomes a member of FEFKA, it can represent the member and use its power of
collective bargaining to help and protect the rights of its members, with regard to
any employment issues. However, it is pointed out therein that a registered trade
union will not come within the ambit of a workplace as defined under section 2(o)
of the Act, 2013 vis-a-vis its members and further, there is no employer-
employee relationship between the 5th respondent and its members.
27. Therefore, the sum and substance of the contention is that it is not
mandatory on the part of the FEFKA to set up an Internal Complaints Committee
as contemplated under section 4 of the Act, 2013. But the 5 th respondent in its
W.P.(C) Nos.33994, 34273 & 36059 of 2018 24
meeting held on 3/2/2018 has set up a committee of 9 members, all of them are
women, for addressing any issue relating to sexual harassment or any other
allied issues pertaining to the members under the 5 th respondent. Therefore, it is
submitted that the contentions raised by the petitioners against the 5 th
respondent that it has not constituted an Internal Complaints Committee in terms
of Act, 2013, cannot be sustained under law.
28. The third respondent in the said writ petition viz., Kerala Film Chamber
of Commerce, has also filed a counter affidavit basically contending that so far as
the said respondent is concerned, its workplace is only an office in Ernakulam city
with a few staff and all of them are male members. That apart it is stated that
the constitution and object of the Kerala Film Chamber of Commerce are to
promote, aid, encourage and develop the production, distribution, exhibition of all
other branches of the Indian film or motion picture industry in all possible ways
in India and to provide the library for members and a place of meeting and
discussion of the commonplace of meeting and discussion of common problems
and generally for the diffusion of useful knowledge regarding the subject matter
of film and film industry. Therefore, it is submitted that there is no lady staff in
the workplace of Film Chamber of Commerce and there is no requirement for the
constitution of an Internal Committee to redress any grievances in contemplation
W.P.(C) Nos.33994, 34273 & 36059 of 2018 25
of the provisions of Act, 2013. That apart it is stated that 3 rd respondent settles
disputes & grievances in the film industry whatever complaints preferred before it
connected with the film trade, particularly, keeping in mind the gender equality.
That apart it is stated that the association has no workplace and therefore, it
cannot be compelled to constitute an Internal Committee .
29. A reply affidavit is filed by the petitioners therein also to the counter
affidavit filed by respondents 3 & 5, reiterating the stand adopted in the writ
petition. The Kerala State Women Commission, the additional 9 th respondent in
W.P.(C) No.34273/2018 has got themselves impleaded and the learned counsel
for the said organisation has advanced arguments supporting the contentions put
forth by the petitioners and also pointing out certain gruesome harassment faced
by the women and along with the same, a representation submitted by the
Commission before the Secretary, Department of Cultural Affairs,
Thiruvananthapuram is also produced, for the formation of Internal Committee
constituted by a Production Unit viz., Kabini Films with two women members and
two male members, in order to redress any complaint made by women in the
production unit.
30. In W.P.(C) No.36059/2018, 3rd and 4th respondent viz., Kerala
Television Federation, Thiruvananthapuram and Indian Newspaper Society,
W.P.(C) Nos.33994, 34273 & 36059 of 2018 26
Kozhikode have filed a joint counter affidavit stating that 3 rd respondent is
registered as a non-profit company under section 8 of the Companies Act, 1956
for the purpose of coordinating the activities of other member organisations and
the total number of members of the 3 rd respondent is 16 in number and there are
7 Directors also. It is also submitted that the 4 th respondent society is registered
as a non-profit company under the provisions of section 25 of the Companies Act,
1956 and the Kerala Regional Committee of the 4th respondent has 14 members.
It is also stated that the 4th respondent is set up with the objective of inter alia
acting as a Central Organisation for the Indian Press to promote and safeguard
the business interest of its members, to promote cooperation in matters of
common interest of its members, to collect information of topics of practical
interest to hold periodical conferences etc.
31. Therefore, it is submitted that 3rd and 4th respondents are functioning
with the aim of addressing the common interest of its respective members and to
enable their unified/collective representation. However, the 3 rd and 4th
respondents do not employ any person for the purpose of its activities.
32. General contentions are also advanced in respect of the applicability of
the provisions of the Act, 2013. Therefore, the prime contention is that the
applicability of section 4 of Act, 2013 mandating 'employer' of the workplace to
W.P.(C) Nos.33994, 34273 & 36059 of 2018 27
set up an Internal Complaints Committee comes into play only when the
'employees' as defined under the Act, 2013 are employed at such a workplace
and therefore, respondents 3 & 4 have not taken into employment any persons
nor do the said respondent maintain any workplace for their functioning, the
mandate of section 4 of the Act is not applicable.
33. We have heard learned counsel for the petitioners Sri.Santhosh
Mathew & Smt.Sandhya Raju, learned State Attorney Sri.N.Manoj Kumar and
learned Special Government Pleader Smt.S.Ambikadavi, learned counsel Sri.Rony
Jose for FEFKA, learned counsel Sri.S.Sujin for the Kerala Film Chamber of
Commerce, learned counsel Smt.Ammu Charles for AMMA, learned counsel
Smt.Parvathy Menon for the Kerala Womens' Commission, learned counsel
Sri.Talish Ray for the CINTAA, learned counsel Smt.Anagha Lakshmy Raman for
the Kerala Television Federation and Indian Newspaper Society and perused the
pleadings and materials on record.
34. According to the petitioners, failure on the part of the respondent
organisations to constitute a grievance redressal mechanism for its members in
the form of an Internal Complaints Committee against the sexual harassment is
arbitrary, illegal and violative of the fundamental rights of its members. It is also
submitted that the failure on the part of the organisations to constitute a
W.P.(C) Nos.33994, 34273 & 36059 of 2018 28
committees against the sexual harassment, is in breach of its obligations as per
the directions of the Honourable Supreme Court in Vishaka (supra) and under
the Act, 2013.
35. That apart, it is pointed out that even though the organisations are not
state under Article 12 of the Constitution of India, it would not bar the petitioners
from securing relief under Article 226 of the Constitution of India as the absence
of a grievance redressal mechanism by the respondent organisations is violative
of the fundamental rights of its members. That apart, it is submitted that there is
a pressing need for a grievance redressal mechanism against the sexual
harassment to be instituted by the organisations in the light of the recent abusive
practices and the sexual harassment faced by the women in the film industry and
particularly so, since the nature of the work undertaken by Actor Artists is such
that, once the production of a film is over, there is no longer a workplace for that
film where such grievance can be pursued.
36. In one of the writ petitions, wherein the political parties are made
respondents, it is submitted that all institutions having more than 10 employees
should have an Internal Complaints Committee but unfortunately despite the
legislation coming into force, the implementation has not happened either in
letter or spirit in the organisations. According to the petitioners therein, it
W.P.(C) Nos.33994, 34273 & 36059 of 2018 29
amounts to grave illegality as per the provisions of the Act, 2013 and the State
Government is bound to take action in accordance with the provisions of the Act,
2013. Therefore, it is the case of the petitioners that the absence of a grievance
redressal mechanism against the sexual harassment, for members of the
respondent associations, is violative of Article 14, 15, 19 & 21 of the Constitution
of India.
37. On the other hand, the State Government as well as the organisations
advanced arguments in accordance with the submissions deliberated above, and
basically contended that since there is no employer-employee relationship in any
of the organisations in the instant writ petitions, there is no requirement for
constituting an Internal Complaints Committee in accordance with the provisions
of the Act, 2013. That apart it is pointed out that none of the respondent
organisations are employing the Actor Artists and they are actually employed by
the producers and therefore, the Act, 2003 does not envisage constitution of an
Internal Complaints Committee in the scheme of Act, 2013.
38. Whatever that be, the learned counsel appearing for the Association of
Malayalam Movie Actors, which is the 3rd respondent in W.P.(C) No.33994/2018,
has submitted through its counsel Smt.Ammu Charles that it has already
identified four persons to be appointed as Internal Committee so as to deal with
W.P.(C) Nos.33994, 34273 & 36059 of 2018 30
the sexual harassment in workplaces and the names of the committee members
would be notified in accordance with law in due course.
39. The discussion of facts made above would also make it clear that the
FEFKA has constituted a committee of 9 women members even though they have
contended that there is no employer-employee relationship by and between the
Members of FEFKA & FEFKA. Needless to say, the FEFKA is an organisation,
wherein nearly 18 trade unions engaged in activities in the film industry, are
members. However, there is no employer-employee relationship between the
FEFKA and the trade union. Therefore, according to the FEFKA, FEFKA is not
bound to constitute a committee as per the provisions of the Act, 2013. The Film
Chamber of Commerce, which is also one of the respondents, has contended that
they are not having any women employees in their workplace and three male
workers are employed by them to manage the office and it is an organisation, in
which various organisations related to film industry are members.
40. Having considered the rival submissions made across the Bar, we are
of the view that in order to sort out the issue, a reference to the relevant
provisions of Act, 2013 is required. The Act, 2013 is an act basically introduced in
line with Article 11 of the convention on elimination of all forms of discrimination,
to which India is a party, which requires State parties to take appropriate
W.P.(C) Nos.33994, 34273 & 36059 of 2018 31
measures to eliminate discrimination against women in the field of employment.
It is also evident that the Act has its genesis in Article 21 of the Constitution of
India, which relates to the right to life and personal liberty, and includes the right
to life with dignity and in the case of women, it means that they must be treated
with due respect, decency and dignity at workplaces.
41. It is also clear that the introduction of the Act, 2013 was also due to
the reason that more and more women started joining the workforce, both in
organised and unorganised sectors, and for ensuring an enabling working
environment for women. The Act is also the outcome of the fact that the sexual
harassment at a workplace is considered violation of women's right to equality,
life and liberty, which creates an unsecured and hostile work environment, which
discourages women participation in work thereby, adversely affecting their social
and economic empowerment and the goal of inclusive growth.
42. While introducing the Act, the Union Government has also considered
the concept of equality provided under Articles 14 & 15 of the Constitution of
India, which prescribes discrimination on the grounds of religion, race, caste, sex
or place of birth or any of them. That apart Article 19(1)(g) has weighed with the
Parliament, which gives the fundamental right to all citizens to practice any
profession, or to carry on any occupation, trade or business, and which
W.P.(C) Nos.33994, 34273 & 36059 of 2018 32
presupposes the availability of an enabling environment for women, which is
equitous, safe and secure in every aspect.
43. Now, coming to section 2(a) defining 'aggrieved woman' to mean, (i) in
relation to a workplace, a woman, of any age whether employed or not, who
alleges to have been subjected to any act of sexual harassment by the
respondent; (ii) in relation to dwelling place or house, a woman of any age who
is employed in such a dwelling place or house.
44. The "appropriate Government" is defined to mean,--
(i) in relation to a workplace which is established, owned, controlled or wholly
or substantially financed by funds provided directly or indirectly--
(A) by the Central Government or the Union territory administration, the
Central Government;
(B) by the State Government, the State Government; and
(ii) in relation to any workplace not covered under sub-clause (i) and falling
within its territory, the State Government.
45. The "employee" is defined under section 2(f) to mean, a
person employed at a workplace for any work on regular, temporary,
adhoc or daily wage basis, either directly or through an agent,
including a contractor, with or, without the knowledge of the
principal employer, whether for remuneration or not, or working on a
voluntary basis or otherwise, whether the terms of employment are
W.P.(C) Nos.33994, 34273 & 36059 of 2018 33
express or implied and includes a co-worker, a contract worker,
probationer, trainee, apprentice or called by any other such name.
46. The "employer" is defined under section 2(g) means,
(i) in relation to any department, organisation, undertaking, establishment,
enterprise, institution, office, branch or unit of the appropriate Government
or a local authority, the head of that department, organisation,
undertaking, establishment, enterprise, institution, office, branch or unit or
such other officer as the appropriate Government or the local authority, as
the case may be, may by an order specify in this behalf.
(ii) in any workplace not covered under sub-clause (i), any person
responsible for the management, supervision and control of the workplace.
Explanation. --For the purposes of this sub-clause "management" includes
the person or board or committee responsible for formulation and
administration of policies for such organisation;
(iii) in relation to the workplace covered under sub-clauses (i) and (ii), the
person discharging contractual obligations with respect to his or her
employees.
(iv) in relation to a dwelling place or house, a person or a household who
employs or benefits from the employment of a domestic worker,
irrespective of the number, time period or type of such worker employed,
or the nature of the employment or activities performed by the domestic
worker.
47. The "workplace" is defined under section 2(o), which includes--
(i) any department, organisation, undertaking, establishment, enterprise,
W.P.(C) Nos.33994, 34273 & 36059 of 2018 34
institution, office, branch or unit which is established, owned, controlled or
wholly or substantially financed by funds provided directly or indirectly by
the appropriate Government or the local authority or a Government
company or a corporation or a co-operative society.
(ii) any private sector organisation or a private venture, undertaking,
enterprise, institution, establishment, society, trust, non-governmental
organisation, unit or service provider carrying on commercial, professional,
vocational, educational, entertainmental, industrial, health services or
financial activities including production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games
venue, whether residential or not used for training, sports or other
activities relating thereto.
(v) any place visited by the employee arising out of or during the course of
employment including transportation by the employer for undertaking such
journey.
(vi) a dwelling place or a house;
48. The "unorganised sector" is defined under section 2(p) in relation to a
workplace means, an enterprise owned by individuals or self-employed workers
and engaged in the production or sale of goods or providing service of any kind
whatsoever, and where the enterprise employs workers, the number of such
workers is less than ten.
49. On an analysis of the definition given to 'employee', it is clear that the
employee is a person employed at a workplace whether on regular, temporary,
W.P.(C) Nos.33994, 34273 & 36059 of 2018 35
ad hoc or daily wage basis, either directly or through an agent including a
contractor with or without the knowledge of the principal employer whether for
remuneration or not, or working on a voluntary basis or otherwise, whether the
terms of employment are express or implied and it includes a co-worker, a
contract worker, probationer, trainee, apprentice or called by any other such
name.
50. Therefore, it is clear that the basic requirement to become an
employee one should be employed at a workplace. This would be more clear, if
we analyse the definition of employer contained under section 2(g)(ii). Section
2(g)(i) in fact deals with the department, organisation, undertaking,
establishment etc. of the appropriate Government or a local authority, head of
that department, an organisation etc. So that clause 2(g) (i) would not come into
play so far as the contentions advanced in the writ petitions are concerned
against the respondents in the writ petition because there is no case for the
petitioners that any of the organisations and the political parties would come
under the term "appropriate Government" or "local body" so as to persuade such
organisations to constitute an Internal Complaints Committee.
51. However, the thrust of the argument advanced by the learned counsel
for petitioners and the supporting respondents is that all these organisations
W.P.(C) Nos.33994, 34273 & 36059 of 2018 36
would come under section 2(g)(ii) of Act, 2013, which deals with any workplace
not covered under sub-clause (i) and any person responsible for the
management, supervision and control of the workplace.
52. It is true, an explanation thereto makes it clear that for the purpose of
the sub-clause "management" includes the person or board or committee
responsible for formulation and administration of policies for such organisation.
Therefore, according to the respondents, none of them would come under the
definition of section 2(g)(ii) because none of the respondent organisations have
any workplace to cater to the needs of the Actor Artists of the film industry.
53. According to the respondent organisations they have no control over
the producers or the film units and they are basically undertaking the resolution
of disputes in regard to the commercial issues that crop up during the film
shooting and other activities. That apart it is pointed out that they are employing
only a very meagre workforce in order to manage the office and many of the
respondents have contended that they have no women employees/workers in
their office.
54. The "workplace" defined under section 2(o)(ii) deals with any private
sector organisation or private venture undertaking, enterprises, institutions,
establishment, society, trust, non-governmental organisation, unit or service
W.P.(C) Nos.33994, 34273 & 36059 of 2018 37
provider carrying on commercial, professional, vocational, educational,
entertainmental, industrial, health services or financial activities including
production, supply, sale, distribution, or service.
55. Relying upon the said provision, learned counsel for petitioners
submitted that all the organisations included in the writ petitions relating to the
film industry, are discharging functions in contemplation of section 2(o)(ii) of
Act, 2013 and therefore, they are bound to constitute an Internal Complaints
Committee. No doubt section 3(1) of Act, 2013 makes it clear that no women
shall be subjected to sexual harassment at any workplace.
56. The question to be decided is whether any of the respondent
organisations are creating a workplace or creating an employer-employee
relationship in order to attract the provisions of Act, 2013 and thereby bound to
constitute an Internal Complaints Committee ? On an analysis of the above said
provisions, we are of the clear opinion that the organisations associated with the
film industries, who are made respondents in the writ petitions, are not
employers of the Actor Artists in the film industry. However, these organisations
have their own structure, in which employees are there and therefore, if there
are any women employees employed by such organisations, they are duty bound
to constitute an Internal Complaints Committee, if the employees are exceeding
W.P.(C) Nos.33994, 34273 & 36059 of 2018 38
10 in number in contemplation of section 4 r/w. Section 6 of the Act, 2013.
57. Section 4 of the Act, 2013 deals with constitution of Internal
Complaints Committee, which specifies that every employer of a workplace shall,
by an order in writing, constitute a Committee to be known as the "Internal
Complaints Committee": It also makes it clear that there should be an employer-
employee relationship and there should be a workplace managing the employer
to constitute an Internal Complaints Committee.
58. However, the proviso makes it clear that if the employer has different
office or administrative units of the workplace located at different places or
divisional or sub-divisional level, an Internal Complaints Committee shall be
constituted at all administrative units or offices.
59. Section 4(2) deals with the manner in which the Internal Committee is
to be constituted. No doubt, once it is found that there is employer-employee
relationship in contemplation of the provisions of the Act, whether engaged for
wages or otherwise, necessarily such organisation would have to constitute an
Internal Complaints Committee.
60. Whatever that be, section 5 of Act, 2013 deals with the constitution of
Local Complaints Committee and it specifies that the appropriate Government
may notify a District Magistrate or Additional District Magistrate or the Collector
W.P.(C) Nos.33994, 34273 & 36059 of 2018 39
or Deputy Collector as a District Officer for every District to exercise powers or
discharge functions under the Act. Section 6 deals with Constitution and
jurisdiction of Local Committee and sub-section (1) stipulates that every District
Officer shall constitute in the district concerned, a committee to be known as the
"Local Committee" to receive complaints of sexual harassment from
establishments where the Internal Committee has not been constituted due to
having less than ten workers or if the complaint is against the employer himself.
Other stipulations are contained under section 6 with respect to the designation
of Nodal Officer etc.
61. But fact remains, it also deals with the complaints with regard to the
establishments wherein the workers are less than ten or if the complaint is
against the employer himself. The phraseology "employee" under section 6 is
also very significant because it also visualises an establishment making the
employer liable to constitute an Internal Complaints Committee. Section 9 deals
with complaint of sexual harassment. Sub-section (1) thereto specifies that any
aggrieved woman may make, in writing, a complaint of sexual harassment at
workplace to the Internal Committee if so constituted, or the Local Committee, in
case it is not so constituted, within a period of three months from the date of
incident and in case of a series of incidents, within a period of three months from
W.P.(C) Nos.33994, 34273 & 36059 of 2018 40
the date of last incident.
62. From there, it can be gathered that even if the respondent
organisations are not duty bound to constitute an Internal Complaints
Committee, a complaint will lie to the Local Committee constituted under section
6 because the second limb of section 9 makes it clear that where there is no
internal committee constituted, the complaint can be preferred to the local
committee. Therefore, it cannot be said that even if the respondent organisations
have no direct employer relationship with the Actor Artists and consequent to
which no Internal Committee is constituted to redress their grievance against the
sexual harassment, can be raised against the person or the management, who
maintain a workplace.
63. To put it short, so far as the film industry is concerned, the production
unit is the workplace of an individual film and therefore, each production unit
would have to constitute an Internal Complaints Committee, which alone can deal
with the harassment against the women in contemplation of the provisions of
Act, 2013.
64. As we have pointed out, if the respondent organisations are
maintaining a workforce to maintain such establishments and engaged in the
activities in contemplation of the workplace defined under section 2(o)(ii), then
W.P.(C) Nos.33994, 34273 & 36059 of 2018 41
individually such organisations are bound to maintain an Internal Complaints
Committee. These are the basic features that we come across so far as the Act,
2013 is concerned so as to arrive at certain definite conclusions.
65. We also make it clear that any organisations, establishments, private
institutions are employing workers whether for wages or not in contemplation of
the provisions of the Act, 2013 coming under the definition of employer,employee
and workplace, they are duty bound to constitute an Internal Complaints
Committee.
66. Even though learned counsel for petitioners have made submissions
relying upon the judgment in Vishaka (supra) and the judgment in Medha
Kotwal Lele and others v. Union of India and others [(2013) 1 SCC 297]
of the Apex Court, we find that the directions contained therein are directed to
continue till such time a legislative enactment on the subject is in place.
Therefore, consequent to the introduction of the Act, 2013, all the organisations
and institutions are guided by the provisions of the Act, 2013 and all such
institutions , establishments, organisations will have to adhere to the provisions
of Act, 2013.
W.P.(C) Nos.33994, 34273 & 36059 of 2018 42
67. In the light of the discussions made above, we are of the considered
opinion that;
(1) The production unit of each film industry is an establishment employing
Actor Artists and other workers and therefore, such production units have to
maintain an Internal Complaints Committee, if they are engaging more than
10 workers, as is contemplated under the Act, 2013.
(2) If any of the respondent organisations, apart from the political parties,
made as respondents in W.P.(C) No.36059/2018, are duty bound to
maintain Internal Complaints Committee, if they are engaging 10 workers or
more for managing the office establishments and wherein women workers
are employed for wages or not.
(3) If women workers are employed by any of the respondent organisations
related to the film industry in which less than 10 workers are employed,
then they are entitled to make suitable complaints to the Local Complaints
Committee in accordance with the provisions contained under section 6 read
with Section 9 of Act, 2013.
(4) Since the Association of Malayalam Movie Actors - the 3 rd respondent in
W.P.(C) No.33994/2018 has volunteered to appoint a committee to deal with
any sexual harassment at its workplace, we record the same and accordingly
to take action to notify the members of the Internal Complaints Committee, in
accordance with law.
W.P.(C) Nos.33994, 34273 & 36059 of 2018 43
(5). From the discussions made above, we find that the political parties,
which are not having any employer-employee relationship with its members
and which are not carrying on with any private venture, undertaking,
enterprises, institution, establishment etc. in contemplation of a 'workplace' as
defined under section 2(o)(ii) of Act, 2013, are not liable to make any Internal
Complaints Committee.
(6) In all other cases, a woman employee subjected to sexual harassment is
entitled as of right to file any complaint of sexual harassment before the
Local Committee in contemplation of the provisions of the act, and under
section 9 r/w. Section 6 of Act, 2013.
68. Even though, we have clearly expressed our views with respect to the
extent of obligations of the organisations coming under the provisions of Act,
2013 to form Internal Committees, we convey our desire that the organisations
associated with the film industry viz., Association of Malayalam Movie Actors
(AMMA), FEFKA, Kerala Film Chamber of Commerce, Kerala Film Producers
Association, take steps to constitute a joint committee, by including the
members of organisations registered with them in tune with the provisions of Act,
2013 to deal with sexual harassment of women, which would definitely render
sufficient confidence to women Actor Artists and other employees & other
W.P.(C) Nos.33994, 34273 & 36059 of 2018 44
workers employed by the production unit ; which would in turn protect the
dignity, and make the right to life and personal liberty of the women in the film
industry more meaningful and fruitful.
69. Even though learned counsel for petitioners Sri.Santhosh Mathew has
invited our attention to the order of the National Company Law Appellate
Tribunal, New Delhi in Competition Appeal (AT) No.5 of 2017 in regard to an
issue arose under the Competition Act, 2002 by and between the Association of
Malayalam Movie Artists, FEFKA Production Executive Union, FEFKA Directors
Union, Film Employees Federation of Kerala and has rendered its finding that all
these organisations are intertwined, the subject matter of consideration therein,
was in respect of the provisions of the Competition Act, 2002, which findings
cannot be brought into the instant case to sort out the issues raised in the writ
petitions on account of the Act 2013.
70. The deliberations made above also would make it clear that the State
Government has notified District Collectors of 14 districts in the State of Kerala
and all Heads of the Departments, to constitute Internal Complaints Committee
in all the Government, Quasi Government and private institutions, and designated
258 Child Development Project Officers of the the Women & Child Development
as Nodal Officers as per section 6(2) of Act, 2013. It is also clear from Exhibit
W.P.(C) Nos.33994, 34273 & 36059 of 2018 45
R2(c) Government Order that administrative sanction is accorded for the
advertisement of the provisions of the Act 2013 through newspapers.
The writ petitions are, therefore, disposed of with the above said
observations and directions.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv JUDGE
W.P.(C) Nos.33994, 34273 & 36059 of 2018 46
APPENDIX OF WP(C) 34273/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE
SUPREME COURT IN VISHAKA V. STATE OF
RAJASTHAN REPORTED IN [(1997) 6 SCC 241].
EXHIBIT P2 TRUE COPY OF THE SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) ACT, 2013.
EXHIBIT P3 TRUE COPY OF THE SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) RULES, 2013.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.10.2018 IN
WP(C) NO.33994/2018 OF THIS HONOURABLE
COURT.
Exhibit P5 TRUE COPY OF THE REGISTRATION CERTIFICATE OF
THE PETITIONER ALONG WITH ENGLISH
TRANSLATION.
Exhibit P6 TRUE COPY OF THE BYE-LAWS OF THE FEFKA
PRODUCTION EXECUTIVES UNION, WHICH IS ONE OF
THE SUB-UNIONS OF THE 5TH RESPONDENT.
Exhibit P7 TRUE COPY OF THE LETTER DATED 15/02/2019
ISSUED BY THE SCREENWRITERS ASSOCIATION.
Exhibit P8 TRUE COPY OF THE SEXUAL HARASSMENT POLICY OF
ANNAPURNA STUDIOS PVT.LTD.
Exhibit P9 TRUE COPY OF A LETTER DATED 01/02/2019
ISSUED BY EXCEL ENTERTAINMENT PVT.LTD TO
WOMEN IN CINEMA COLLECTIVE.
Exhibit P10 TRUE COPY OF THE PROCEEDINGS OF THE
EXTRAORDINARY GENERAL MEETING OF THE
PRODUCERS GUILD OF INDIA HELD ON 14/11/2018.
Exhibit P11 TRUE COPY OF THE LETTER DATED 29/01/2019
ISSUED BY THE PRODUCERS GUILD OF INDIA TO
MS.ANAJALI MENON, WOMEN IN CINEMA
COLLECTIVE.
Exhibit P12 TRUE COPY OF THE LETTER DATED 23/04/2018
SENT BY THE TELUGU FILM CHAMBER OF COMMERCE
TO THE GOVERNMENT OF TELANGANA.
W.P.(C) Nos.33994, 34273 & 36059 of 2018 47
Exhibit P13 TRUE COPY OF THE LETTER DATED 28/01/2019
ISSUED BY UNILAZER VENTURES PVT.LTD TO
MS.ANJALI MENON, WOMEN IN CINEMA COLLECTIVE.
EXT.R9(1) TRUE COPY OF THE E-MAIL
COMMUNICATION RECEIVED FROM THE 1ST
RESPONDNET HEREIN TO THE PETITIONER HEREIN
DATED 18.1.2022.
EXT R9(1)(a) ENGLISH TRANSLATION OF EXT
R9(1)
EXT.R9(2) TRUE COPY OF THE COMMUNICATION
NO.KSCA/1097/2017 DATED 9.11.2020 OF KERALA
STATE CHALACHITRA ACADEMY,
THIRUVANANTHAPURAM
EXT.R9(2)(a) ENGLISH TRANSLATION OF
EXT.R9(2)
EXT.R9(3) TRUE COPYU OF THE REPRESENTATION
NO.P3/316/KSD/2022/KWC DATED 27.1.2022 OF
ADDITIONAL 9TH RESPONDENT.
W.P.(C) Nos.33994, 34273 & 36059 of 2018 48
APPENDIX OF WP(C) 36059/2018
PETITIONER EXHIBITS
EXHIBIT P1 A COPY OF THE ARTICLE SEXUAL HARASSMENT
OF WOMEN WORKPLACE - A JOURNEY FORM
WORKPLACE ISSUED TO HUMAN RIGHTS BY DR.
ANAGHASARPOTDAR.
EXHIBIT P2 A COPY OF THE CONVENTION OF ELIMINATION
OF DISCRIMINATION AGAINST WOMEN.
EXHIBIT P3 A COPY OF THE GENERAL RECOMMENDATIONS 19
OF CEDAW.
EXHIBIT P4 A COPY OF THE ONLINE NEWSPAPER REPORT
DATED 16TH OCTOBER 2018 BEARING SITE
https://www.thenewsminute.com/article.
EXHIBIT P5 A COPY OF THE ONLINE NEWSPAPER ARTICLE
DATE JULY 2018.
EXHIBIT P6 A COPY OF THE ONLINE NEWSPAPER ARTICLE
DATED 8TH SEPTEMBER 2018 BEARING SITE
http://m.timesofindia.com/thiruvananthap
uram.
EXHIBIT P7 A COPY OF AN ONLINE NEWS REPORT DATED
28TH JULY 2018.
EXHIBIT P8 A COPY OF THE EXTRACT OF REPORT BY
NATIONAL COMMISSION FOR WOMEN ON THE
STATUS OF WORKING WOMEN JOURNALISTS.
EXHIBIT P9 A COPY OF THE REPORT ON THE FUNCTIONING
OF INTERNAL COMPLIANCE COMMITTEES IN
GOVERNMENT OFFICES AT KERALA.
EXHIBIT P10 A COPY OF AN ONLINE NEWSPAPER REPORT ON
THE INCREASE IN SEXUAL HARASSMENT CASES,
DATED 20TH DECEMBER 2017.
EXHIBIT P11 A COPY OF THE GENDER EQUALITY AND
EMPOWERMENT POLICY.
EXT.R2(a) A TRUE COPY OF THE G.O.(P)
NO.28/2014/SJD DATED 20.3.2014.
EXT.R2(b) A TRUE COPY OF CIRCULAR
NO.1556/B3/2016/SJD DATED 26.05.2016
ALONG WITH ENGLISH TRANSLATION.
W.P.(C) Nos.33994, 34273 & 36059 of 2018 49
EXT.R2(c) A TRUE COPY OF G.O.(Rt.)
NO.397/2017/SJD DATED 21.06.2017 ALONG
WITH ENGLISH TRANSLATION.
EXT.R2(d) A TRUE COPY OF G.O.
(Rt.) NO.554/2018/SJD DATED
25.09.2018 ALONG WITH ENGLISH
TRANSLATION
EXT.R2(e) A TRUE COPY OF G.O.
(Rt.) NO.489/2018/SJD DATED
13.08.2018 ALONG WITH ENGLISH
TRANSLATION.
EXT.R2(f) A TRUE COPY LETTER
NO.WEC.1-4161/18 DATED
15.08.2018 OF THE DIRECTORATE OF
WOMEN & CHILD DEVELOPMENT ALONG
WITH ENGLISH TRANSLATION
EXT.R2(g) A TRUE COPY OF THE
LETTER NO.WCD.WEC.1-4161/18
DATED 05.05.2018 ALONG WITH
ENGLISH TRANSLATION
W.P.(C) Nos.33994, 34273 & 36059 of 2018 50
APPENDIX OF WP(C) 33994/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE
SUPREME COURT IN VISHAKA V. STATE OF
RAJASTHAN REPORTED IN (1997) 6 SCC 241.
EXHIBIT P2 TRUE COPY OF THE SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) ACT, 2013.
EXHIBIT P3 TRUE COPY OF THE SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) ACT, 2013.
Exhibit P5 TRUE COPIES OF THE DOCUMENTS SHOWING THAT
THE PRODUCERS GUILD OF INDIA AND OTHER
ORGANISATIONS ARE COMPLYING WITH THE
PROVISIONS OF THE SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) ACT, 2013.
RESPONDENT EXHIBITS
Exhibit R4(A) TRUE COPY OF THE ORDER DATED 17/10/2018 IN
W.P(C) 33994/2018
Exhibit R4(B) TRUE COPY OF THE ORDER DATED 08/01/2019 IN
W.P(C) 33994/2018
Exhibit R4(C) TRUE COPY OF THE ORDER DATED 26/11/2018 IN
W.P(C) 34273/2018
Exhibit R4(D) TRUE COPY OF THE AUTHORISATION LETTER DATED
31/12/2020
Exhibit R4(E) TRUE COPY OF THE POSTER FOR SENSITIZATION
WORKSHOP ON 30/10/2008
Exhibit R4(F) TRUE COPY OF THE PRINT OUT FROM THE OFFICIAL
SOCIAL MEDIA PAGE OF SENSITIZATION WORKSHOPS
Exhibit R4(G) TRUE COPY OF THE NEW ITEM ON CINTAA WORK IN
THE AREA OF GENDER SENSITIZATION IN THE
HINDU NEWS PAPER DATED 10/10/2008
Exhibit R4(H) TRUE COPY OF THE NEWS ITEM ON CINTAA WORK IN
THE AREA OF GENDER SENSITIZATION IN
MALAYALAM INDIAN EXPRESS
W.P.(C) Nos.33994, 34273 & 36059 of 2018 51
Exhibit R2(A) A TRUE COPY OF THE GO(P) NO.28/2014/SJD
DATED 20/03/2014.
Exhibit R2(B) TRUE COPY OF THE CIRCULAR
NO.1556/B3/2016/SJD DATED 26/05/2016 ALONG
WITH ENGLISH TRANSLATION.
Exhibit R2(C) TRUE COPY OF THE GO(RT) NO.397/2017/SJD
DATED 21/06/2017 ALONG WITH ENGLISH
TRANSLATION.
Exhibit R2(D) TRUE COPY OF THE GO(RT) NO.554/2018/SJD
DATED 25/09/2018 ALONG WITH ENGLISH
TRANSLATION.
Exhibit R2(E) TRUE COPY OF GO(RT) NO.,489/2018/SJD DATED
13/08/2018 ALONG WITH ENGLISH TRANSLATION.
Exhibit R2(F) TRUE COPY OF LETTER NO. WEC 1-4161/18 DATED
18/05/2018 OF THE DIRECTORATE OF WOMEN AND
CHILD DEVELOPMENT ALONG WITH ENGLISH
TRANSLATION.
Exhibit R2(G) TRUE COPY OF THE LETTER NO. WCD.WEC.1-
4161/18 DATED 05/05/2018 ALONG WITH PRESS-
NOTE ALONG WITH ENGLISH TRANSLATION.
