INTRODUCTION
Vishaka & ors. v/s state of Rajasthan [1]is a case which deals with the evil of Sexual Harassment of a woman at her workplace. It is a landmark judgment case in the history of sexual harassment which as being decide by Supreme Court. Sexual Harassment means an uninvited/unwelcome sexual favor or sexual gestures from one gender towards the other gender. It makes the person feel humiliated, offended and insulted to whom it is been done. In many of the cases, it has been observed that homosexual labor harasses an employee belonging to the same sex to which he belongs.
Sexual harassment is one of the social evils faced by the fragile portion of the society. Now at this point of time the high society people or the people who commits sexual harassment should become aware about the vital needs or rights of women or either when this tranquil volcano of anger will erupt will cause immense danger and shattering which would have equal consequences which is cause from the burst or eruption of an inactive volcano.
FACTS OF THE CASE.
Bhanwari Devi, a woman belonging from Bhateri, Rajasthan started working under the Women’s Development Project (WDP) run by the Government of Rajasthan, in the year 1985. She was employed as a ‘Saathin’ which means ‘friend’ in Hindi.
In the year 1987, as a part of her job, Bhanwari took up an issue of attempted rape of a woman who hailed from a neighbouring village. For this act, she gained full support from the members of her village. In the year 1992, Bhanwari took up another issue based on the government’s campaign against child marriage. This campaign was subjected to disapproval and ignorance by all the members of the village, even though they were aware of the fact that child marriage is illegal.
In the meantime, the family of Ram Karan Gurjar had made arrangements to perform such a marriage, of his infant daughter. Bhanwari, abiding by the work assigned to her, tried to persuade the family to not perform the marriage but all her attempts resulted in being futile. The family decided to go ahead with the marriage.
On 5th May 1992, the sub-divisional officer (SDO) along with the Deputy Superintendent of Police (DSP) went and stopped the said marriage. However, the marriage was performed the next day and no police action was taken against it. Later, it was established by the villagers that the police visits were a result of Bhanwari Devi’s actions. This led to boycotting Bhanwari Devi and her family. Bhanwari also lost her job amid this boycott.
On 22nd September 1992, to seek vengeance, five men i.e., four from the above-mentioned Gurjar family- Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar along with one Shravan Sharma had attacked Bhanwari Devi’s husband and later brutally gang-raped her.
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.
In the absence of sufficient evidence and with the help of the local MLA Dhanraj Meena, all the accused managed to get an acquittal in the Trial Court. But this acquittal resulted in a huge backlash from many women activists and organizations which supported Bhanwari. 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 ‘Vishaka’. 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.
ISSUES RAISED
Whether sexual harassment at the Workplace amounts to a violation of Rights of Gender Inequality and Right to Life and Liberty?
Whether the court could apply international laws in the absence of applicable measures under the existing?
Whether the employer has any responsibility when sexual harassment is done to/by its employees?
PETITIONERS ARGUMENTS
A writ petition, seeking the writ of mandamus was filed by the ‘Vishaka’ 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.
RESPONDENT’S ARGUMENTS
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 Kapur and Ms. Meenakshi provided assistance to the Hon’ble court in dealing with the said case.
JUDGMENT OF THE CASE
The lack of a law that would prevent sexual harassment and provide women with a safe working environment was acknowledged by the Hon’ble Supreme Court of India. Section 354 and 354A of the Indian Penal Code, 1860 were to be referred in any case of sexual harassment but these provisions were not specific to the issue at hand. This made the Hon’ble court realize the need for proper and effective legislation that would deal with sexual harassment.
The Hon’ble Court took reference from the international conventions to proceed with the case. It referred to the Beijing Statement of Principles on the independence of Judiciary[3] in the LAWASIA region, to function as a guardian of citizens’ rights and independently make laws in the absence of any legislative framework. Then the Hon’ble court took reference from the provisions of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[4]. They were-
Article 11 (1) (a) & (f)- which states that the State takes all appropriate measures to eliminate discrimination against women in the field of employment.
Article 24- which states that the State shall undertake to adopt all necessary measures at the national level aimed at achieving the full realization.
CHANGES THAT TOOK PLACE AFTER THIS CASE.
The Hon’ble Supreme Court framed the guidelines to prevent sexual harassment at the Workplace, known as Vishaka Guidelines, that were to be treated as law declared under Article 141 of the Indian Constitution. These guidelines were the foundation for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
THE VISHAKA GUIDELINES (1997)
EMPLOYER’S OR OTHER EQUIVALENT AUTHORITY’S DUTY– Employer or other responsible persons are bound to preclude such indecent incidents of sexual harassment from happening. In case such an act takes place, then the organization must consist of a mechanism to provide prosecutorial and conciliatory remedies.
DEFINITION – For this purpose “Sexual Harassment” means disagreeable sexually determined behaviour 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.
MEASURES FOR PREVENTION– Employers or persons in charge of the workplace must take preventive measures such as an express prohibition of sexual harassment in the form of notifications or circulars, penalties by the government against the offender, appropriate work conditions in respect of hygiene, health and leisure.
PROCEEDINGS IN CASE OF MISCONDUCT– If the offenses committed are the ones that fall under the purview of the Indian Penal Code, 1860, then the employer is bound to take prosecutorial action by complaining to the appropriate authority.
APPROPRIATE DISCIPLINARY ACTION– If there is an occurrence of the violation of service rules, appropriate disciplinary action must be taken.
REDRESSAL MECHANISM– An organization must have a redressal mechanism to address the complaints. This must be irrespective of the fact that whether the act constitutes an offense under the Indian Penal Code, 1860, or any other law as such.
REDRESSAL COMMITTEE– Such a redressal mechanism or more precisely such a complaint committee must have women as more than half of its members and its head must be a woman. The committee must comprise of a counselling facility. It is also acceptable to collaborate with NGOs or any such organisations which are well aware of such issues. A report must be sent to the government annually on the development of the issues being dealt by the committee.
SPREADING AWARENESS– To raise sexual harassment issues, employer-employee meetings must be held. The employer must take appropriate actions/measures to spread awareness on the said issue.
In the case of Vishakha & others v/s the state of Rajasthan [5], the Supreme Court specifically underlined the definition of Sexual Harassment [6], which conveys any unwanted or uninvited physical touch or conduct or showing of pornography or any definable sexual comments or texts will come under the ambit of Sexual Harassment.
The Supreme Court held out guidelines that, the person-in-charge of the particular institution, organisation or office whether be it private or public, will be responsible in taking effective steps to prevent sexual harassment.
Penalties shall be charged from the accused people for conducting sexual harassment. It had become a very crucial topic to act upon for the prevention of sexual harassment women at workplace. In case of private companies, the strict rules regarding the punishment of sexual harassment shall be included.
In case the sexual harassment is conducted by the outsiders, the person-in charge of that institution must take strict action for the conduct of such crime.
CONCLUSION
The constitutional principles of equality and liberty have been upheld by the Hon’ble Supreme Court of India in the Vishaka Judgement. The inception of the law against sexual harassment has inspired many women to raise their voices against the suffering that they were silently subjected to until the year 1997. Vishaka Guidelines formed the basis for the establishment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The true spirit of Judicial Activism has been portrayed in the Vishaka Judgement and it has been an inspiration to other nations. However, Bhanwari Devi, the spark that ignited the need for appropriate legislation to safeguard women against sexual harassment, even after two decades, is still awaiting justice to be served.
It is paramount to take note of the fact that, though such comprehensive laws have been enacted to safeguard women in India, it still ranks as the most dangerous country for women. Maybe it is time to question ourselves, is it the law or is it us that must be responsible?
