Vishakha & Ors. V. State of Rajasthan (AIR 1997 SC 3011)
“Sexual harassment at work… is it a problem for the self-employed?” – Victoria Wood
Vishakha v state of Rajasthan is one of the significant and landmark case of Judicial Activism of securing rights of women at workplace and of protecting her modesty. Prior to the Vishakha case, there were no formal guidelines which dealt with prevention of sexual harassment of women at the workplace. There are provisions in the Indian Penal Code, 1860 which deal with the offence of sexual harassment. Any woman experiencing sexual harassment at the workplace had to complain to Section 354 of the IPC which deals with the ‘outraging of women’s modesty by criminal assault’ and section 509 deals with the punishment for using a word, gesture or act intended to insult the modesty of a woman, but these sections left the interpretation of ‘outraging women’s modesty’ to the discretion of the police officer.
The brief facts of the case are: A women named as Bhanwari Devi, who was employed as a village-level social worker also known as-Saathin under the Women’s Development Project (WDP) run by the Government of Rajasthan was badly raped in the year 1992. As the part of her job Devi reported a family which had belonged to the Gurjar Community to the police because of the arranged marriage of one-year old infant. Therefore, to get revenge for the same act done by Devi, the family had rebelled against her and around five men of the Gujjar community ostracise her while she was at her workplace. She lodged a complaint against the accused. The police had tried all possible ways to avoid filing any complaint against the accused which resulted in a delayed investigation. Even after facing so much criticism, Bhanwari Devi, with her incessant determination to get justice, managed to lodge a complaint. The medical examination was delayed for fifty-two hours. However, the examiner did not mention any commission of rape in the report but rather mentioned the age of the victim. However, in the absence of sufficient evidence the court had acquitted the accused in the Trail Court. But this acquittal resulted in a huge backlash from many women activists and organizations which supported Bhanwari. The High Court in his judgement propounded that it was an instance of group assault which was submitted out of retribution. Later on, various social organizations and women activists also raised their voices for Devi’s fight for Justice. These organizations came together and raised their voice to attain justice, which resulted in the filing of a Public Interest Litigation (PIL).
The PIL was filed by a women’s rights group known as ‘Vishakha’. It laid its focus on the enforcement of the fundamental rights of women at the Workplace under the provisions of Article 14, 15, 19, and 21 of the Constitution of India, it also raised the issue of the need for protection of women from sexual harassment at Workplace.
CONTENTIONS OF THE PETITIONER
There was a huge uproar in the society during the hearing of this case. This case was not merely limited to a rape but also became the common point for all the harassment cases and a writ petition filed by the different NGO’s contained:
Whether sexual harassment at the Workplace amounts to a violation of Rights of Gender Inequality and Right to Life and Liberty?
Whether the employer has any responsibility when sexual harassment is done to/by its employees?
A writ petition, seeking the writ of mandamus was filed by the ‘Vishakha’ group which comprised of various women’s rights activists, NGOs, and other social activists. They put forward their argument that the indecent acts of sexual harassment of women at Workplace violate the fundamental rights enshrined under Article14, 15, 19(1)(g) and 21 of the Constitution of India. The petitioners brought the attention of the Hon’ble court to the loophole that the legislation has regarding the provision of a safe working environment for women. They requested the Hon’ble Court to frame guidelines for preventing sexual harassment at Workplace.
The learned Solicitor General appearing on behalf of the respondents (with their consent) in this case did something unusual i.e., supported the petitioners. The respondent assisted the Hon’ble court in figuring out an effective method to curb sexual harassment and in structuring the guidelines for the prevention of the same. Fali S. Nariman – the amicus curiae of the Hon’ble court along with Ms. Naina Kapoor and Ms. Meenakshi provided assistance to the Hon’ble court in dealing with the said case.
The judgment of the case was pronounced by Chief Justice J.S Verma as a representative of Justice Sujata Manihar and Justice B.N Kripal, on 13 August 1997. The way in which the apex court took the cognizance of the situation and laid down some important guidelines is praiseworthy. The court upheld the constitutional provisions and also did not hesitate to refer to the relevant international legal provision which shows the flexibility of the judiciary. The court doesn’t change any existing law as no law existed on sexual harassment at workplace prior to this case. There is clear violation of the rights under Articles 14, 15 and 21 of Constitution. This incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or businesses. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Apart from previous articles mentioned, few articles which also have relevance are Article 15, Article 42, Article 51A and Article 253. The apex court adequately justified their decision by relied upon article 11 of Convention on the Elimination of All Forms of Discrimination against Women, 1981 which provides for appropriate measures to be taken by the state parties to eliminate discrimination against women in field of employment. There is a need for various Guidelines and an Act just to safeguard women on the working front. The apex court beautifully justified this step by stating that there is a dearth of domestic laws with regards to prevention of sexual harassment against women at workplace and that any international convention which is not inconsistent with the fundamental rights and in harmony with its spirit must be read into the constitutional provisions to promote the object of constitutional guarantee. In this case, the Supreme Court made the term Sexual harassment well defined, accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt or misbehavior, or any sexual desire towards women, sexual favour will come under the ambit of sexual harassment.
The policy implications of the decision are that as the case made progress at each hearing, it resulted in the formulation of guidelines also known as the Vishakha Guidelines, to which the Union of India gave its consent through the learned Solicitor General, indicating that these should be the guidelines and norms declared by this Court to govern the behaviour of the employers and all others at the work places to curb this social evil. In accordance with Article 141 of Constitution, these guidelines were to be considered law until appropriate legislation was created:
- Sexual Harassment consists of unwelcomed sexually determined behaviour as physical sexual contact, sexual favour, sexual remarks, pornographic content and also verbal. Non-verbal conduct of sexual nature.
- Sexual Harassment at workplace should be always –informed, produced & circulated.
- Whenever a sexual harassment takes place which amounts to a specific offence under law, the employer should take action by complaining about the same to the appropriate authority.
- An appropriate mechanism of prevention should be created for redressal of the complaint.
These Vishakha guidelines were later incorporated into Sexual Harassment at workplace (Prevention, Prohibition, and Redressal) Act 2013. The guidelines also mentioned the need to establish a complaints committee headed by a woman to address the grievances. The Government of India has also made an official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women’s Rights to act as a public defender of women’s human rights; to institutionalize a national level mechanism to monitor the implementation of the Platform for Action.
In spite of various constitutional provisions and policies for women, it is a harsh reality that the women still are falling back in many respects and they have to face many challenges. Many developments have been made around the world still women are not to be treated equally, even after having so much protection laws, we as a country have failed to implement them in our mentality. The Apex court has done an exemplary work when it comes to setting up precedent for the future, these guidelines have proved that instead of thinking about the society, women need to come up and tell their misery to the world so that the accused does not gather guts to do the immoral Act again.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.
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