Vishakha and ors. v State of Rajasthan: Case analysis

    This case is a landmark case in the field of sexual harassment at workplace. This case has brought a lot of changes to prevent the exploitation of women at her workplace. Prior to this case there was no legislation regarding the protection of women at workplace, but after this case the Hon’ble Supreme Court has laid down various guidelines related to the sexual harassment of women at workplace based on CEDAW ( signed in 1980) interpreting the Articles 14, 15, 19 and 21 of the Indian Constitution. These guidelines are also known as “Vishakha guidelines”.

    These guidelines by Hon’ble Supreme Court were the first enforceable civil law guidelines on the rights of women at the workplace regarding the violence and harassment in both public and private sector.

    Equivalent Citation: Air 1997 Sc 3011

    Facts of the Case

    Brief facts of the case are as follows:

    1. In one of the villages of Rajasthan a program was initiated by the State Government of Rajasthan to prevent the practice of Child marriage.
    2. Bhanwari Devi was a social worker associated with the same program. Being a part of the protest, Bhanwari Devi tried to stop the child marriage of an infant in one Ramkant Gujjar’s family. But despite much effort, she failed to stop that child marriage.
    3. In 1992, with an intention to take revenge Ramkant Gujjar along with five others had gang raped Bhanwari Devi in front of her husband.
    4. She was declined to get surveyed by a male doctor at a primary health center and in Jaipur only the confirmation of her age was made without any recommendation of rape in her medical report.
    5. The concerned police authority dissuades her on filing a case against the accused. But she didn’t lose hope and lodged a FIR against the accused.
    6. Despite all this, they were abused and ill-treated by the female police and misbehaved even to an extent that she has demanded her lehenga for evidence. She was clad only in the blood-soaked dhoti of her husband.

    Not only this, when she thought it inappropriate to go out at night in this condition and requested to spend the night in the police station, she was refused.

    1. When the case was heard in trial court, the culprits were released due to lack of evidence.
    2. But with the determination to get justice for Bhanwari Devi a group of five NGOs under the name of “Vishakha” filed a PIL in the, Supreme Court seeking directions for the prevention of sexual harassment of women at workplace through judicial process.

    Issue raised

    1. Whether the enactment of guidelines necessary for the prevention of sexual harassment of women at workplace?
    2. Whether the sexual harassment at workplace violates the fundamental rights of women under Articles 14, 15, 19(1)(g) and 21?
    3. Whether the court can apply international laws in the absence of any legislative measures to fulfill the need?

    Judgment

    In the Vishakha case the judgment was delivered by Chief Justice J.S. Verma is a representative of Justice sujata manihar and Justice B.N. kripal on account of writ petition.

    It was observed by the Honorable Supreme Court that the fundamental rights under Articles 14[ii], 19[iii](1)(g) and 21[iv] of the Indian Constitution that every profession, trade or occupation should provide a working environment to the employees. Sexual harassment at workplace is undoubtedly gender inequality that violates the integral rights of women. It violates the right to life and the right to live with dignity. Basically, there was a requirement of availability of a safe working environment at the workplace for women.

    It was held by the Apex Court that such cases attract the remedy available under Article 32 of the Indian Constitution. It was stated by the Honorable Supreme Court that women have fundamental right of freedom from sexual harassment at workplace.

    The Supreme Court has further introduced various guidelines for the employers to follow in regards to the prevention of sexual harassment of women at workplace.

    The Supreme Court issued various important guidelines based on CEDAW which has to be strictly followed at workplace for the prevention of sexual harassment of women.

    It was stated by the Hon’ble Supreme Court that in the absence of law of the land, the assistance could be rendered from international conventions and statues to the extent that it does not clash with any law of India or do not violate the Indian Constitution. The Judiciary derived this authority from Articles 51(c) and 253 r/w Entry 14 of the Union List of Seventh schedule of the Constitution. The court held that such violation therefore attracts the remedy under Article 32.

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    Guidelines issued by the Supreme Court based on CEDAW

    The Hon’ble Supreme Court has laid down the following guidelines which are also known as Vishakha case;

    1. At every workplace, the employer and other authoritative people are duty bound to prevent sexual harassment and setup processes to resolve, settle or prosecute such cases.
    2. The sexual harassment for the first time has defined as;

    Sexual harassment means disagreeable sexually determined behavior direct or indirect as:

    1. Physical contact and advances;
    2. A demand or request for sexual favors;
    3. Sexually colored remarks;
    4. Showing pornography;
    5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
    6. All employers or persons in charge of workplaces must strive to prevent sexual harassment and if any act amounts to a specific offence under the Indian Penal Code, 1860 on any other law, they must take appropriate action to punish the guilty.
    7. Even if the act is not considered a legal offense or a breach of service rules, the employer should create appropriate mechanisms so that the complaint is addressed and redressed in a time bound manner.
    8. The complaint mechanism must, if necessary, provide a complaints committee, a special counsellor or other support service such as ensuring confidentiality. The complaints committee should be headed by a woman, and at least half of its members must be women. Also, to prevent any undue pressure from senior levels, the complaints. Committees must involve a third party such as an NGO familiar with the challenges of sexual harassment.
    9. The employer must sensitize female employees to their rights and prominently notify the courts guidelines.
    10. Even if a third party is responsible for sexual harassment, the employer must take all steps necessary to support the victim.
    11. The Central and State Government should adopt suitable measures to ensure that private sector employers implement the guidelines.

    Critical analysis

    This landmark case has marked itself a very important incident in the field of sexual harassment. Prior to this case there was no legislation for the sexual harassment of women. The women are now free to work without the fear of getting harassed. This case really has its importance in enforcing the fundamental rights of women. Sexual harassment of women at workplace violates her right to life and right to live a dignified life. It also affects their mental and physical health of women.

    This case has brought a lot of reasonable changes in the field of employment of a woman. The rising offences of sexual harassment and related offenses were the main reasons behind the requirement of legislation for sexual harassment at workplace. Now, after 16 years of Vishakha case, on the basis of the guidelines provided by Supreme court the Parliament has enacted Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

    The main objective of this Act is to prevent and prohibit the sexual harassment of women at workplace. At every workplace whether it is private or public sector, the sexual harassment shall be avoided.

    Conclusion

    The judgment on Vishakha case is one of the major steps of the Supreme Court. The guidelines issued by the Supreme Court in order to enforcement of the fundamental rights of women is now became a law in India as Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It is based on CEDAW (Convention on Elimination of all types of Discrimination against Women) which has be n signed by India in the year 1980.

    The main objective of the Supreme Court was to prevent women from sexual harassment at workplace and to end the gender inequality in order to enforce the Right to life and Right to equality.

    The Vishakha judgment together with its importance also contains the rationality within the sense that it doesn’t over-pressurize the employer in constructing a redressal mechanism. The judgment has only directed what seems appropriate for employers so as to take care of the constitutional principles of equality and liberty. The judgment can never be termed united where judiciary encroaches its boundaries irrationally i.e. Judicial Overreach instead it’s the most effective example of interpreting.

    References:

    [i] AIR 1997 SC 3011.

    [ii] The Constitution of India, art.14.

    [iii] The Constitution of India, art.19(1)(g).

    [iv] The Constitution of India, art.21.


    BY DEVSHREE DANGI | INDORE INSTITUTE OF LAW, INDORE

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