Home » Blog » VISHAKA & ORS V STATE OF RAJASTHAN & ORS

VISHAKA & ORS V STATE OF RAJASTHAN & ORS

By /

Authored By: Vanshdeep Kaur

Christ University

Case Name: VISHAKA & ORS V STATE OF RAJASTHAN & ORS

Citation: (1997) 6 SCC 241; AIR 1997 SC3011

Court: Supreme court of India

Date of judgement: 13 August 1997

Petitioner: Vishaka and Ors

Respondent: The state of Rajasthan and Ors

Bench: Chief justice JS Verma, Justice Sujata V Manohar, Justice B.N. Kirpal

INTRODUCTION

The Vishaka v. State of Rajasthan was the first judgment where guidelines on sexual harassment were established. Before 1997, there were no laws to protect women from sexual harassment at the workplace. Most women were harassed by people working at the same place, either verbally or non-verbally. The Vishaka Guidelines, after the judgment, protected women’s dignity and made the workplace a safer place for women to work without worrying about harassment. Later, on 2 September 2012, these guidelines became the foundation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, after the Bill was passed by the Lok Sabha. The Supreme Court held that sexual harassment is a violation of fundamental rights, particularly Article 14, which talks about gender equality, and Article 21, which guarantees the right to live with dignity. Cases of sexual harassment before the Vishaka Guidelines were often hidden or misclassified under the general penal code. There are no official records because there was no specific legislation addressing workplace sexual harassment, and this case bridged that gap.

FACTS OF THE CASE

This case revolves around a woman named Bhanwari Devi from Bhateri, Rajasthan. She was employed as a saathin under the Government’s Women’s Development Project in the year 1985, run by the Government of Rajasthan. As the project was started to uplift women, in 1987 she took up the issue of the rape of a woman from a neighbouring village and was encouraged by others to do the same. Later, in the year 1992, Bhanwari took another step against child marriage. Most of the villagers were ignorant and disapproved of her actions, even though they knew that child marriage was illegal.

Further, the family of Ram Karan Gurjar had already decided to perform the child marriage of their infant daughter. When Bhanwari came to know about it, she tried to educate the family members and persuaded them not to perform the marriage. However, ignoring all the consequences, they decided to go ahead with the marriage.

On 5 May 1992, the Sub-Divisional Officer (SDO), along with the Deputy Superintendent of Police, went to stop the marriage. However, the marriage was completed the next day, and no action was taken against the family. The villagers believed that the police had come because of Bhanwari Devi’s actions, because of which they started avoiding Bhanwari Devi and her family, which eventually led to her suspension from her job.

On September 22, 1992, as a means of taking their revenge, the five persons, namely Ram Sukh Gurjar, Gyarsa Gurjar, Ram Karan Gurjar, Badri Gurjar, and Shravan Sharma, committed a severe assault on her husband and gang raped Bhanwari Devi. The system of casteism was very much prevalent during that period, and hence the FIR could not be lodged immediately.. Furthermore, when Bhanwari Devi went for her medical examination, it was delayed by 52 hours, and the medical report failed to properly record the commission of gang rape. As there was very little evidence, and with the support of the local MLA, Dhanraj Meena, the accused were acquitted by the trial court.

As the incident gained public attention, many activists came forward to support Bhanwari Devi. Several NGOs and women’s organisations came together, which resulted in the filing of a Public Interest Litigation (PIL). The petition was brought forth by an organization working for the empowerment of women, called Vishaka. While this case was based on an incident of gangrape of Bhanwari Devi, the primary problem addressed in this case in the Supreme Court was the lack of any legal provision to prevent sexual harassment of women in the workplace. It was contended that it amounts to the violation of basic constitutional rights under Articles 14, 15, 19, and 21

ISSUES

Whether sexual harassment at the workplace amounts to a violation of rights of gender inequality and the right of 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?

ARGUMENTS OF THE PARTIES

Petitioner’s Arguments

Writ Petition was filed in the case of Vishaka and Ors. by the Vishaka group and others including women activists. The primary motive behind this was to treat sexual harassment as a violation of the fundamental rights under the Articles 14, 15, 19(1)(g), and 21 of the Constitution of India. One of the other problems that the court had to deal with was that there were no legal provisions to handle sexual harassment cases involving women at workplace. Thus, they asked the Hon’ble Court to provide guidelines for sexual harassment cases. Moreover, it is pertinent to mention here that India had also signed CEDAW convention, and thus, it was the duty of the Government to make laws for protection of women at workplace.

Respondents’ Arguments

In this case, the learned Solicitor General supported the petitioners. The respondent suggested that the State should take preventive measures to avoid sexual harassment of women at the workplace. 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 case.

Judgment in Vishaka & Ors. v. State of Rajasthan & Ors. (1997)

During this period, there were very limited sections under the Indian Penal Code, 1860, which talked about offences against the modesty of women, which were Section 354 and 509. But they did not cover the aspect of sexual harassment in the workplace. Thus, the Hon’ble Court understood the need for legislation on this issue. While deciding upon the issue, the Court observed that “sexual harassment is a case of gender-based violence and hence, it would fall foul of Article 14 of the Constitution of India.” The Court further observed that while Article 21 of the Constitution ensures the fundamental right of the ‘right to life and personal liberty’, it also entails the right of the citizens to have a work and living environment free of sexual harassment. Besides, it also violates the right to practice any profession and carry on any occupation or trade or business under Article 19(1)(g) of the Constitution of India.

APPLICATION OF INTERNATIONAL CONVENTIONS

The Supreme Court noted that since there were no provisions for combating sexual harassment, recourse to international conventions was justified in dispensing justice. It further held that Article 32 of the Constitution of India not only confers a fundamental right but also enables a person to petition the Court against violation of his or her fundamental rights. The Court made a reference to the Beijing Statement of Principles of the Independence of the Judiciary (1995) that contains the internationally recognized standards on the judiciary of the Asia-Pacific region. The functions of the judiciary in terms of the Beijing Statement involve guaranteeing that everyone is living under the Rule of Law, fostering and safeguarding human rights through the use of judicial powers, and ensuring impartial justice is administered among persons and between the person and the State.

The Court also cited the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in particular the recommendation in Article 11 concerning equal treatment at work. The reason was to demonstrate that violence against women was indeed a form of discrimination.

 India had already accepted the obligation to protect women from such discrimination, and where there was no domestic legislation, Indian courts could rely upon international conventions that were consistent with the Constitution.

The Court also made use of the CEDAW, the Convention on the Elimination of All Forms of Discrimination against Women, in particular to cite Article 11 of the same, which speaks about equality in employment. This is because the intent behind citing these provisions was to emphasize that violence and sexual harassment directed against women amounts to discrimination. India was already under the duty to ensure that no such discrimination should occur to women. In the absence of any domestic legislation, the Indian Courts could rely upon international conventions in tune with the Indian Constitution.

The Supreme Court also observed that India had become a party to the Convention on the Elimination of All Forms of Discrimination Against Women on June 25, 1993, and India thus became under the duty to eliminate any kind of discrimination against women. Further, in the Fourth World Conference on Women held at Beijing, India promised to develop a national policy for women’s empowerment, establish a commission for women’s rights and monitor the Beijing Platform for Action. These obligations being in line with the constitutional guarantees of equality and dignity, the Court referred to them in order to determine the ambit of the constitutional right of gender equality. Such an interpretation by the Court was able to ensure greater protection of women’s basic rights in the absence of any domestic laws dealing with sexual harassment at workplaces.

Moreover, the Court formulated Vishaka Guidelines as a means of bridging the legislative gap and held that they would be binding on all employers until such time that a particular law is enacted by Parliament. According to the Court, such guidelines were to be taken as having the binding force of law according to Article 141 of the Constitution. According to the Vishaka Guidelines, sexual harassment involved any unwanted physical behaviour; any sexual Favor being demanded or requested; any sexually coloured remarks; exhibiting pornography, and any other form of unwelcome physical, verbal or non-verbal sexual behaviour. The guidelines made sure that every employer provides a safe working environment, makes a proper complaint mechanism which is chaired by a lady along with one external member from a NGO or organization acquainted with sexual harassment issues.

Critical Evaluation

The Vishaka Guidelines dealt with the problem of sexual harassment of women in the workplace. They filled the legislative lacuna through the issuance of mandatory guidelines. The Vishaka Guidelines have helped to increase the awareness and responsibility of employers. In addition, they have provided an enhanced protection of fundamental rights as well as paved the path for Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. However, the directions issued in Vishaka Guidelines were from the judiciary and not from the legislature, thus making the enforcement of these guidelines inconsistent. Moreover, many employers had failed to establish the Complaints Committees as per the directions of the court. Another important aspect of the case is that it has been confined to women only and other genders have not come under the scope of its protection. Though the Vishaka case has not succeeded in ending workplace sexual harassment, it has definitely been a turning point and has become a landmark judgment. This point has been made clear by the Supreme Court in Medha Kotwal Lele v. Union of India (2013), wherein it was pointed out that many organizations have neglected to properly follow the Vishaka Guidelines. The court asked all states and union territories to strictly follow the Vishaka Guidelines until an appropriate legislation is put into place. This was an indication that even after so many years, the implementation of the Vishaka Guidelines was not proper. The success of these guidelines greatly depended upon the effective implementation, which ultimately led to the creation of the Act of 2013.

Legislative Response: The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Despite the fact that the Vishaka Guidelines provided women with some necessary protection from sexual harassment at workplace, these guidelines were not intended to be a permanent solution. As the Supreme Court made it clear, the guidelines would have a temporary character and will exist until Parliament passes a law regarding this matter. Consequently, Parliament adopted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013. This Act relies on the principles set out in the Vishaka judgment and creates an appropriate legislative basis for the prevention of sexual harassment at workplace as well as the ways of coping with this problem. In accordance with the provisions of the Act, employers should create an Internal Committee, raise awareness of the law, examine the complaint and maintain confidentiality of its content. It should be noted that the Act applies to women in both organized and unorganized sectors. Nonetheless, despite its importance for the protection of women’s interests, the effectiveness of this Act largely depends on how this document is being implemented. There are still many workplaces where this legislation is not entirely being followed.

CONCLUSION

It is well known that the Vishaka judgment is a landmark judgment when it comes to history of the right of women in India. With the help of Vishaka judgment, sexual harassment at workplace can be considered a violation of the right of women under Article 14, 15, 19(1)(g), and 21 of Indian Constitution. Due to the absence of a particular law regulating this matter, the task of developing some guidelines for solving this issue on the basis of the constitutional guarantees was left to the Court. The Vishaka Guidelines later served as the basis for introducing the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013.. It is safe to claim that the act is effective if it is properly implemented and employers understand the importance of providing a respectful and secure working environment for women.. Only in such a way, the purpose of the judgment will be reached.

REFERENCE(S):

Cases

Legislation

International Instruments

Journal/Website

Related Posts

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top