NAME – SONAKSHI SINGLA
COURSE – B.A.LLB. (2nd Year)
COLLEGE- ARMY INSTITUTE OF LAW, MOHALI.
Vishaka
& Ors. v. State of Rajasthan & Ors., (1997) 6 SCC 241
“There
is no chance for the welfare of the world unless the condition of women is
improved. It is not possible for a bird to fly with one wing”. - Swami
Vivekananda
Back
in the 1990s, the voice was raised for ‘Gender Equality', to deter sexual
harassment of employed women in all workplaces with the help of judicial process, and to fill the void in
present legislation. A petition was brought as a class action by certain social
activists and NGOs to focus attention on this societal aberration, and assist
in finding suitable methods for the realization of the true concept of “gender
equality”. The judgment of this case provided the basic definitions of sexual
harassment at the workplace and rendered guidelines to deal with it. It is seen
as a substantial legal victory for the entire women community of India.
Bhanwari Devi is a woman who belongs
to a caste Kumhar (potter) from Bhateri,
a village in Rajasthan was employed as part of the Women's Development Project
(WDP) operated by the Government of Rajasthan in the year 1985. Bhanwari was alienated by the villagers who
earlier supported her when she fought against the evil of child marriage which
was widely practiced in India despite being illegal oin 1992. A family which
had arranged a child-marriage was that of Ram Karan Gurjar. He had planned to
marry his nine-month-old daughter i.e. an infant. Bhanwari made certain
endeavors to convince the family against this marriage but all of this was in
vain. On 5 May, the Deputy Superintendent of Police (DSP) and Sub Division
Officer (SDO) came to Bhateri village to Prevent the marriage of the infant
from taking place. They succeed in stopping the marriage at that time. However,
the marriage ultimately took place at 2 a.m. on 6th May i.e. the very next day.
This time the police didn’t take any action. The villagers connected this
incident and the actions of police with
Bhanwari Devi and as a result of this, the family was boycotted socially,
economically. “On 22 September 1992 to take revenge five men from the affluent
and predominant Gurjar caste from her
village assaulted her husband with sticks,
which made him unconscious. After that five of them gang-raped her. They were Ram Sukh Gujjar,
Gyarsa Gujjar, and Ram Karan Gujjar, and their uncle Badri Gujjar, along
with Shravan Sharma. The police tried to
use all unethical means to deter her from filing any complaint . they were ultimately
successful in this and there was a delay in the investigation as well as
medical examination which was postponned for 52 hours which led to no reference
of rape in the report. At the police station, Bhanwari was asked to deposit her
“lehenga” as evidence for the case. She had no other option but to cover
herself with her husband's blood-stained saafa
(turban). She had to walk 3 km to the nearest saathin’s village Kherpuria, and
reached there at 1 a.m. in the night.The case was filed in the district court
of Jaipur. The district and sessions court in Jaipur dismissed the case and
acquitted all the five accused on 15 November 1995”.[1] Five
judges who were in favor of Bhanwari Devi were replaced , and the sixth judge was the one who gave the verdict that the accused is not
guilty, stating inter alia that
Bhanwari's husband wouldn’t just passively watch his wife getting rape!
However this acquittal resulted in a
colossal backlash from many women
activists and organizations. All of them supported Bhanwari. These
organizations came together and vocalised themselves to achieve justice, and
ultimately a Public Interest Litigation (PIL) was filed. “This PIL was filed by
a women’s rights group known as Vishaka”.
“It laid its focus on the enforcement of the fundamental rights of women at the
Workplace under the provisions of Articles 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 by bringing some law into place”.
- Is
sexual harassment at workplaces a violation of Articles 14, 15, 19, and 21
of the Indian Constitution?
- Whether
a formal guideline is required with respect to issues of sexual harassment at
the workplace?
- Can the courts apply
international laws when domestic laws are absent for the same?
- Whether
the employee has any kind of duty/responsibilty in cases of sexual harassment
at the workplace by any of his employee or to his
employee?
CONTENTIONS BY BOTH THE PARTIES
The petitioner contended that sexual
harassment at the workplace leads to violation of the fundamental rights of
“Gender Equality” and the “Right to Life and Liberty”. It is a blatant
violation of the rights under Articles 14, 15, and 21 of the Constitution. The
effect of such an 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 business”. A “Safe” working environment is required to
enjoy one’s fundamental right to conduct
any occupation, trade, or profession. We need to keep in mind “Right to
life also includes life with dignity”. The legislature as well as the executive
need to make sure to ensure this dignity and safety by the implementation of
certain legislation.
The counsel on behalf of the
respondent provided its support for dealing with this social evil. The Solicitor General who appeared from the side of the Union of India
(UOI), provided some valuable assistance which was required to find the proper
solution to this problem which holds considerable significance. Shri Fali S.
Nariman was the amicus curiae in this case and he rendered his assistance. Ms.
Meenakshi Arora and Ms. Naina Kapur assisted the matter with their full
devotion which proved to be very helpful.
RATIONALE OF
THE CASE
Former
Chief Justice JS Verma, along with Justice Sujata Manohar and Justice BN Kirpal
gave the judgment for the case filed by the NGO. The court mentioned that, “Whenever there is
any case of sexual harassment that violates the fundamental rights under
Articles 14, 15 and 21 one comes to them for redressal, under Articles 32, for
an effective redressal there is a need for certain guidelines which could help
to fill this legislative vacuum”. The Court mentioned some other provisions
relevant for the same. This included Article 42 (Provision for Just and humane
conditions of work and maternity relief) and 51A (Fundamental duties of the
citizen). Globally this right has been recognized. International conventions
and norms play a great role in the formulation of guidelines for the same. “The
obligation of the Court under Article 32 of the Constitution for enforcing
fundamental rights, when there is no legislation to enforce the same we need to
view the role of the judiciary which was envisaged in the Beijing Statement of
Principles of the Independence of the Judiciary in the LAWASIA region”[2].
Chief Justices of Asia and the Pacific at Beijing in 1995 accepted these
principles which are symbolizing the minimum principles required to be observed
which could ensure independence and effective functioning of the judiciary.
“One provision in the “Convention on the Elimination of All Forms of
Discrimination against Women”, (CEDAW)[3] of
significance in the present context are:
“Article
11(a) and (f): States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment
Article
24: States Parties need to adopt all necessary measures to achieve the full
realization of the rights which are recognized in the Convention”.[4]
INFERENCE
The Supreme Court laid down the guidelines and
rules which are to be ascertained at all workplaces and other organizations
until a legislation is passed for the same. These guidelines (called as the
Vishaka Guidelines) were the foundation for The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.
THE VISHAKA
GUIDELINES
(1997)[5]
Duty of the Employer :It is the duty of the employer at
workplaces or other institutions to prevent acts of sexual harassment and to
ensure that there is a proper redress mechanism in the company that would
listen to all such issues.
Definition of Harassment: The definition of Sexual
harassment includes, “any such unwelcome sexually determined behavior which
includes physical contact, demands for sexual favor, sexually colored remarks,
showing pornography, and any kind of physical, verbal or non-verbal abuse”.
Preventive steps: The employer needs to take suitable
steps to deter sexual harassment at the workplace. The employees in the
workplace are supposed to be informed about the prohibition of sexual
harassment in all appropriate ways. Rules and regulations relating to the
conduct and discipline of the employees should include rules that prohibit
sexual harassment and provide penalties to the offender. He needs to ensure
that adequate work conditions are provided with respect to work, leisure,
health, and hygiene which will further ensure that no hostile environment is
prevalent towards women employees and they don’t feel disadvantaged.
Criminal Proceedings: When any such act amounts to an
offence under the Indian Penal Code, 1860, or for that matter under any other
law in place, the employer should make ensured that a complaint is made to the
appropriate authority. He or She should ensure that no victims or witnesses are
discriminated against while dealing with the complaint.
Disciplinary action: Where any of the conduct amounts to
misbehaviour of the employees, appropriate disciplinary action should be taken
by the employer in accordance with the guidelines..
Complaints Committee: The complaint mechanism should be
adequate to provide, where necessary, a Complaints Committee. This committee
should include a special counselor, who would ensure that confidentiality is maintained. It should even
involve a third party, either an NGO or other body who is acquainted with the
issue of sexual harassment.This would help to prevent any possibility of undue
influence or pressure by senior authorities.
Third-party
Harassment: If the sexual harassment takes place
due ti action of any thid-party or any outsider then it is the duty of the
employer to take all the necessary steps to assisted the person effected with
support as well as preventive measures.
[1] Geeta Pandey, Bhanwari
Devi: The Rape that Led to India's Sexual Harassment Law, BBC, (Mar. 17,
2017) https://www.bbc.com/news/world-asia-india-39265653.
[2] ICJ, https://www.icj.org/wp-content/uploads/2014/10/Beijing-Statement (last visited Aug. 16, 2021).
[3] OHCHR, https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx#:~:text=Introduction,twentieth%20
country%20had%20ratified%20it (last visited Aug. 17,
2021).
[4] Ibid
[5]
NITC, http://www.nitc.ac.in/app/webroot/img/upload/546896605.pdf (last visited Aug. 17, 2021).
