Sexual harassment may be defined as a behavior characterized by the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace or other professional or social situation and may lead to safety or health related problems.
Sexual harassment at workplace is a common occurrence. Many women have experienced it in one way or another. Such behavior is not only discriminatory but also violates a person’s basic right to work with dignity and in a safe working environment.
Before 1997, there were no formal and specific laws or legislations that dealt with sexual harassment at workplace. Earlier, a compliant, either under Section 354 or Section 294 of the Indian Penal Code had to be filed for any case of sexual harassment. Section 354 deals with criminal assault of women’s modesty and Section 294 deals with eve teasing. However, these laws were not as effective and there was a need for specific laws related to sexual harassment at workplace.
In the absence of any legislative laws, the Supreme Court of India, in the landmark case of Vishakha v. State of Rajasthan, laid down certain guidelines to safeguard women and prevent sexual harassment at workplace.
VISHAKHA V. STATE OF RAJASTHAN
- In 1992, Bhanwari Devi, a Dalit woman from Rajasthan, was raped.
- She worked as a social worker with the Rural Development Program whose aim was to stop and eliminate child marriage.
- Bhanwari Devi tried to the marriage of the minor daughter of Gujjar family due to which she received criticism and was socially boycotted.
- In September, 1992 she was raped by one of family members of Gujjar family, Ramkaran Gujjar, and his five friends.
- The doctor at the local health center refused to examine her. Another doctor in Jaipur only confirmed her age but mentioning anything about. The female constable at the police station also misbehaved with her. At the police station, she was to leave her ghagra as evidence and had only her husband’s dhoti to protect her modesty.
- The Trial Court also acquitted the accused and the High Court stated that it was a case of gang rape which was conducted out of revengeful situation.
- Because of the judgment of the Court, a petition was filed before the Supreme Court by NGOs and social activists who wanted justice for Bhanwari Devi.
- The notice of the petition was issued to the State of Rajasthan and the Union of India.
- Solicitor General appeared for the Union of India and rendered valuable assistance in the true spirit of a Law Officer to help us find a proper solution to this social problem of considerable magnitude.
- Ms. Meenakshi Arora and Ms. Naina Kapur assisted the Court with full commitment. Shri Fali S. Nariman appeared as Amicus Curiae and rendered great assistance.
ISSUES BEFORE THE COURT
- Which provisions of the Constitution are violated in the absence of any laws or legislation to address problems related to sexual harassment at workplace?
- Do the Constitutional Courts have the power to lay down rules, guidelines or laws in absence of any legislative laws?
- Is there a need to lay down any specific guidelines in the light of sexual harassment at workplace?
Issue No. 1 –
Article 19(1)(g) states that every person the right to pursue any profession or to carry out any occupation, trade or business. This right is subject to the availability of safe working conditions and environment.
Any case of sexual harassment, eve teasing or any incident of similar nature violates Article 19(1)(g). It also violates Article 14, Article 15 and Article 21 of the Constitution.
Article 14 of the Constitution states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Equality before law encompasses gender equality and also includes prevention of sexual harassment and the right to work with dignity. This right to equality is violated when women are subjected to gender specific violence such as sexual harassment at workplace.
Sexual harassment is humiliating and effects physical and mental health of a person. It is also discriminatory if the person who is facing it believes that if she objects to it, it may have an adverse affect on her in relation to her employment or that it may create hostile and unfavorable working environment.
Article 15 of the Constitution of India prohibits discrimination on the basis of religion, race, caste, sex, or place of birth.
When women are subjected to gender specific violence, abuse and harassment at workplace, it is discriminatory and derogatory and it is against the Constitution.
Article 21 of the Constitution states: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Right to life includes right to a healthy life and includes right to live with dignity. The primary responsibility fro ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive.
In order to protect the rights of women and prevent cases of sexual harassment against them, effective complaints procedure, remedies and compensation be provided.
Issue No. 2 –
The Supreme Court referred to Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA region to signify the role of judiciary in the absence of a specific legislation.
The objectives of the judiciary mentioned in the Beijing Statement are:
- “to ensure that all persons are able to live securely under the rule of law;
- to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and
- to administer the law impartially among persons and between persons and the State.”
Some provisions, other than Article 14, 15 and 19(1)(g), which empowered the Constitutional Courts to intervene in matters where there is no legislative mechanism or procedures are :
- Article 15(3) – Power of the state to make special laws for women and children.
- Article 32 – Extraordinary Jurisdiction.
- Article 42 – Provision for just and humane conditions of work and maternity relief – The State shall make provision for securing just and humane conditions of work and for maternity relief.
- Article 51A – It shall be the duty of the every citizen of India – to abide by the Constitution and respect its ideals and institutions.
- Article 253 – Legislation for giving effect to international agreements – Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”
Issue 3 –
In the absence of any effective mechanism for the enforcement of fundamental rights especially in case of sexual harassment, the Supreme Court laid down certain guidelines for due observance at all workplaces, until a legislation is enacted for this purpose. These guidelines are to be treated as laws declared by the Court under 141 of the Constitution.
The guidelines laid down in case of Vishakha v. State of Rajasthan are known as Vishakha Guidelines.
Some of the guidelines laid down by the Supreme Court are:
- Definition of Sexual harassment- Supreme Court defined sexual harassment as unwanted sexual determination which is directly or impliedly intended to cause the following:
- Physical contact or advances.
- A demand or request for sexual favours.
- Sexually coloured remarks.
- Showing pornography.
- Any other unwelcome conduct whether it is physical, verbal or non-verbal.
- Duty of the employer and other responsible persons in work places and other institutions:
It shall be the dusty of the employer to take all necessary steps to prevent sexual harassment and implement effective procedures and mechanism for it prevention, resolution and compensation.
- Preventive steps:
All employers, whether working in private or public steps, must take appropriate steps for the prevention of sexual harassment at workplace. There should be appropriate penalties for the offender. The employer must also provide safe, healthy and hygienic working conditions and there should be no hostile or inappropriate behavior against women employees.
- Criminal Proceedings:
If any conduct or incident which amounts to a specific offence under the Indian Penal Code or any other law, the employer shall take appropriate action according to law and a make a complaint with the appropriate authority.
- Disciplinary action:
If any conduct amounts to misconduct in the employment, the employer shall take appropriate disciplinary action in accordance with the service rules.
- Complaint mechanism:
An appropriate complaints mechanism shall be established at the employer’s organization for the redress of complaints by the victim.
The awareness about the rights of the female employees must be spread by notifying about the guidelines in an appropriate manner.
The Supreme Court in its landmark judgment in Vishakha’s case took a major steps for the protect of women and enforcements of their fundamental rights. This was for the first time that any specific rules were laid down regarding prevention of sexual harassment at workplace. This was the first major step to ensure women’s independence, equality in opportunities and the right to work with dignity.
After the Vishakha Guidelines, India finally enacted a law on prevention of sexual harassment against female employees at workplace known as ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013
- iPleaders- https://blog.ipleaders.in/case-comment-vishaka-vs-state-rajasthan/#:~:text=This%20case%20of%20Vishaka%20vs,sexual%20harassment%20in%20the%20workplace.
- Legal Services India- https://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of-rajasthan.html
- Wikipedia- https://en.wikipedia.org/wiki/Vishakha_and_others_v_State_of_Rajasthan#:~:text=v%20State%20of%20Rajasthan%20was,Articles%2014%2C%2019%20and%2021
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