Vishaka v. State of Rajasthan

CASE NAME: VISHAKA VS STATE OF RAJASTHAN, AIR 1997 SC 3011

COURT: BEFORE THE HON’BLE SUPREME COURT OF INDIA

DATE OF JUDGMENT: 13th AUGUST 1997

BENCH: J.S VERMA, SUJATA V. MANOHOR, B.N. KIRPAL

FACTS

Barware Devi was a social worker in a programmed initiated by the state government of Rajasthan aiming to curb the evil of Child Marriage. Amidst, the protest to stop child marriage in one Ramadan Gujjar’s family Bhanwari Devi tried her best to stop that marriage. However, the marriage was successful in its completion even though widespread protests. In 1992, to seek vengeance upon her, Ramakant Gujjar along with his 5 men gang-raped her in front of her husband. The police department at first tried to dissuade them on filing the case on one pretext or other but to her determination; she lodged a complaint against the accused. They were, however, subjected to harsh cruelty by the female police attendants even to the extent that for procuring evidence her lehenga was demanded from her and she was left with nothing but her husband’s blood-stained dhoti. Adding to their misery, their request to spend the night in the police station was also refused.

The trial court acquitted the accused but she didn’t lose hope and seeing her determination all-female social workers gave their support. They all filed a writ petition in the Supreme Court of India under the name ‘Vishakha’. The apex court was called upon to frame guidelines for preventing Sexual Harassment at the Workplace.

The hon’ble court did come up with such guidelines as Vishakha Guidelines which formed the basis of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

It has been laid down in the judgment above-mentioned that it is the duty of the employer or other responsible persons in work places or other institutions to

  1. Prevent the happening of such event
  2. To furnish the employees with effective mechanism for the process of resolving & trying of such indecent acts of sexual harassment
  3. For this purpose “Sexual harassment” means disagreeable sexually determined behavior direct or indirect as:
  • physical contact and advances;
  • a demand or request for sexual favours;
  • sexually coloured remarks;
  • showing pornography;
  • any other unwelcome physical, verbal or non-verbal conduct of sexual nature

ISSUES 

  • Whether the enactment of guidelines mandatory for the repudment of sexual government of sexual harassment of women at workplace.

JUDGMENT 

The former Chief Justice JS VERMA, gave the judgment on behalf of Justice Sujata Manohar and Justice BN Kirpal, on a writ petition which was filed by different NGO’s. The court observed that it is a fundamental right of a functioning woman under Article 14, 19(1)(g), and 21 of the constitution to carry on any work, trade, or profession but it should be ensured that employer should provide a safe working environment at workplace. It was of the remark that the fundamental right to carry on any kind of occupation, trade, or profession depends on the ease of use of a “safe” working environment. The right to life means life with dignity and strength. The Supreme Court ruled that at all workplaces there should be a sexual code and there should be a proper mechanism to enforce cases, which fall under the ambit of this sexual harassment code. The main purpose of this aim is to facilitate the sexual characteristics of equality and to avoid discrimination for women at the workplace. The court in lack of any enacted commandment was called upon to deliver for effective enforcement of basic human rights of gender equality and prevention against sexual harassment. Supreme Court made the definition of sexually determined behavior in a wider sense by including any kind of acts which include bodily contact, call for sexual favours, sexual comments, showing pornography, oral or physical conduct of a sexual nature with women. The Supreme Court stated that the guidelines for the sexual code at every workplace are to be treated as a declaration of law in accordance with Article 141 of the constitution. And these rights should not be based on prejudices any right available under the protection of the Human Rights Act 1993. The guidelines and norms specified by the apex court include the obligation of the employer in the workplace and other institutions, preventive steps to be taken in this regard, criminal proceedings, disciplinary action, complaints, mechanism and complaints committee to encourage worker initiative, creating awareness and against any third party harassment etc.

VISHAKHA GUIDELINES 

1. Employers or other answerable persons are bound to preclude such incidents from happening. In the event of happening of such incidents the organization must consist of mechanisms to provide conciliatory and prosecution facilities. 

2. Definition – For this purpose “Sexual harassment” means disagreeable sexually determined behavior direct or indirect as:

a) Physical contact and advances;

b) A demand or request for sexual favours;

c) Sexually coloured remarks;

d) Showing pornography;

e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

3. Every employer other than providing services under (1) is under an obligation to

i. Expressly notify the prohibition of sexual harassment

ii. The rules/regulations of govt. & public – sector bodies must include rules/regulations prohibiting sexual harassment.

iii. The Standing Orders of the private employer made under Industrial Employment (Standing Orders) Act, 1946 should include such provisions to prohibit sexual harassment.

iv. The working conditions must be appropriate and not hostile to the woman employees of the organization. Further, female employees should feel a sense of equality in the atmosphere.

4. When the offences committed are the one discussed under the Indian Penal Code or any other law, the employer is bound to start the prosecution with complaining to the appropriate authority.
Further, the employee must provide the victim with all sorts of protection while dealing with the complaints.

5. Appropriate Disciplinary Action shall be taken in case there is a violation of service rules.

6. Irrespective of the fact that the particular act constitutes an offence under IPC or any other law, the organization must have a redressal mechanism to deal with it.

7. The Complaint Committee must be headed by a woman and not less than half of the members must be women. For further assistance, the committee shall also include NGOs or someone aware of such issues.

The committee must be adequate in providing relief to the victim with appropriate counseling facilities. An annual report shall be submitted to the govt. by the committee informing the former of the development regarding the said issue in the organization.

8. An employee-employer meet shall be arranged where the workers shall be allowed to raise issues of sexual harassment.

9. The employer shall take adequate steps in order to spread awareness about the social evil.

CRITICAL ANALYSIS

The court in Vishakha was called upon for the enforcement of the fundamental rights mentioned under article 14, 19 & 21. The country had after 1991 seen rise in gender equality in terms of employment. Since, 1991 more women were employed in establishments than pre 1991 period. This rise also was a crucial factor in the rise of incidents of sexual harassment and related offences. At that point of time there was no law to prevent & punish commission of such offences therefore, majority of the incidents went unreported and hence unpunished. This was a black stain on the Indian criminal justice system. Due to this absence of law, there were many gross violations of rights & the victims had no remedy. The legislature was still silent on making any law in such regard even after multiple incidents of similar nature where there was sexual harassment. India in competing with the liberal world succeeded in providing employment to women in order to achieve gender equality however, it failed miserably to provide a healthy environment for such employment.

Therefore, in a class action, brought by various NGO’s and social workers, finally, the apex court brought this silence to an end. The court without hesitating in breaking its constitutional boundaries (only to interpret law) formulated guidelines for the prevention of such incidents. These guidelines are known as Vishakha guidelines. This was a welcome step by the SC where it finally provided the victims of such incidents a law through which they can seek a remedy.

This incident revealed the consequences to which an employed woman faces and the pressing need for protection by any other procedure in the lack of statute. The court, therefore, felt the need to find an alternative mechanism to deal with such incidents. These guidelines had the effect of protecting female liberty in the employment establishment so that they could feel an atmosphere of equality. The court ruled that violation of gender equality is a violation of the Right to life & liberty mentioned under Article 21. Along with the violation of Art. 21, the court also found a gross violation of Article 14 & 15.

The court after a combined reading of Article 51(c) with Article 253 and Entry 14 of Union List mentioned in the 7th Schedule found that in the absence of relevant statutes the court can draw inspiration from international law, treaties, and conventions to resolve a problem.

Therefore, the court after a deep interpretation of:

  • Convention on the Elimination of all Forms of Discrimination against Women (Article 11 & 24)
  • General recommendations of CEDAW in this context (Article 11, 22, 23, 24)
  • At the 4th World Conference on Women in Beijing, Govt. of India made an official commitment to set up a National Commission at every level and in every sector that will look after Women’s Rights came up with Vishakha guidelines to prevent the taboo that was in the past without any remedy.

The court ruled that Gender equality & the right to work with dignity is injured whenever there is any incident of Sexual Harassment. These rights have gained universal acceptance therefore, interpretation of international covenants and agreements is a must to formulate such guidelines.  

CONCLUSION

Vishakha judgment is one of the most gifted pieces of law the court has ever enacted in its history since its inception. The court seeing the importance of the matter came directly into the ground by breaking all the restrictions upon it by the constitution and laid down such guidelines which would ensure that no such act of harassment goes unpunished.

The court in the absence of domestic law didn’t hesitate in reading international law on the subject matter (CEDAW). The SC found authority for such reference in the combined reading of art. 253 read with entry 14 of Union List in Seventh Schedule.

The Vishakha judgment along with its importance also contains the rationality in the sense that it does not over-pressurize the employer in constructing a redressal mechanism. The judgment has only directed what seems appropriate for employer in order to maintain the constitutional principles of equality and liberty. The judgment can never be termed as one where the judiciary encroaches its boundaries irrationally i.e. Judicial Overreach instead it is the best example of judicial activism.

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