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Author: Ananya Pathak,
Institute of Law, Jiwaji University
Introduction:
The historic case of Vishaka & ors. Vs. state of Rajasthan & ors. has addressed the issue of sexual harassment at workplace with women. After years of independence, the safeguarding of women’s right has still remained an unsolved issue. The decision of Supreme Court in this landmark case is said to be a major turning point in providing guidelines for sexual harassment against women at workplaces. The judgment was provided by three-judge bench of then CJI J.S. Verma, Justice Sujata V. Manohar and Justice B.N. Kirpal.
Background:
It all started from 1985, when Bhanwari Devi, resident of Bhateri, Rajasthan, began working for an organization run by Rajasthan’s government, namely Women’s Development Project (WDP).
Since then, as part of her incredible job, she took up issues prevailing in those villages including rapes, child marriages, etc.
In 1992, Bhanwari took up issue of child marriage in response to the government’s push against child marriage. Despite the knowledge that child marriage is prohibited and illegal, the whole community in village was against the said campaign and showed ignorance on it.
Meanwhile, family of Ram Karan Gujjar, were getting their young daughter married which took the attention of Bhanwari Devi. Following her assigned work, Bhanwari tried to convince the family to stop this child marriage and not to consummate it. Though all her efforts went futile when the family stick to guns to perform marriage.
The wedding took place next day despite the visit of police to stop the marriage. Later on, it was proved by the locals that Bhanwari Devi’s acts were the cause of police inspections. As a result, Bhanwari Devi along with her family was boycotted, and she also lost her job due to the aforesaid reason.
On September 22, 1992, five men named- Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, Badri Gujjar and Shravan Sharma assaulted Bhanwari Devi’s husband and then viciously gang-raped her in an attempt to get revenge.
The inquiry was delayed because the police made every effort to avoid making any complaints against the accused. There was delay of more than 2 days in her medical examination.
However, the report’s examiner only highlighted the victim’s age rather than determination of any instances of rape.
All of the defendants were able to win an acquittal in the trial court due to lack of evidence and with the assistance of local MLA Dhanraj Meena. However, numerous female activists and organizations which supported Bhanwari Devi fiercely retailed against her acquittal. Together, these groups spoke out in favor of justice for Bhanwari Devi, and as a consequence, a Public Interest Litigation (PIL) was filed.
“Vishaka”, a women’s rights organization, filed the PIL. Focus was majorly placed on upholding women’s fundamental rights at work in accordance with Articles 14, 15, 19 and 21 of the Constitution of India. The necessity of shielding women from sexual harassment at work was also brought up.
Issues in the case:
Whether sexual harassment at work place amounts to violation of rights under Article 14, 15, 19 and 21?
Whether the employer is liable for sexual harassment that occurs in his place of employment?
Petitioner’s Arguments:
While the verdict does not include the individual arguments from each party, it did take some points into account. The “Vishaka” organization, which was made up of several women’s rights activist, non- governmental organizations, and other social activists, filed a writ petition asking for the writ of Mandamus. They argued that the offensive acts of sexual harassment committed against women at work are against the basic rights guaranteed by Article 14, 15, 19(1) (g), and 21 of The Constitution of India. The petitioners addressed the Supreme Court to the legal gap pertaining to the provision of a safe workplace for women. They urged the Hon’ble Supreme Court to establish regulations aimed at stopping workplace sexual harassment.
Respondent’s Arguments:
In this case, the learned Solicitor General took an uncommon step of supporting the petitioners while appearing on behalf of the respondents (with their assent). The respondent helped the Hon’ble Supreme Court formulate the standards for preventing sexual harassment and come up with an efficient way to stop it. The honorable court’s amicus curiae, Fali S. Nariman, together with Ms. Meenakshi and Ms. Naina Kapur, assisted the honorable court in handling the aforementioned matter. Judgment of the case:
The Indian Constitution’s Article 14, 15, 19(1) (g) and 21 guarantee fundamental rights were in fact violated by sexual harassment at work, the Supreme Court ruled. It was stated that every instance of these kinds violates the fundamental rights of “gender equality” and “right of life and liberty”. Therefore, remedy under Article 32 for the enforcement of these fundamental rights of women applies to such infringement. This is the rationale behind this class action. If the writ of Mandamus is to be successful in situation like this, it must be accompanied by prevention guidelines because this type of ongoing violation of fundamental rights occurs frequently. The Indian Supreme Court acknowledged the absence of legislation that would stop sexual harassment and give women a safe place to work. In any case of sexual harassment, The Indian Penal Code, 1860s sections 354 and 354A were to be consulted; nevertheless these prohibitions were not relevant to the present situation. This led the honorable court to conclude that appropriate and practical legislation to address sexual harassment was required. To continue with the matter, the honorable court referred to the international conventions. The Beijing Statement of Principles on the independence of the Judiciary in the LAWASIA region was cited. It states that the Judiciary should protect Individual’s rights and enact laws on its own when there is no legislative framework in the place. The articles of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) were then cited by the honorable Supreme Court. They were, Article 11 (1) (a) & (f) and Article 24. The woman had reasonable reasons to fear that reporting sexual harassment would hurt her chances of getting hired, promoted or that a hostile work environment would result from doing so. This is another instance of discrimination, according to the court. Therefore, physical contact is not a requirement for sexual harassment. The “Vishaka Guidelines”, which the Supreme Court established to prevent sexual harassment at work, ought to have been enacted into law in accordance with Article 141 of the Indian Constitution to provide for the prompt handling of complaints. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013 was based on these regulations.
The Vishaka Guidelines:
Duty of the employer: employers and responsible individuals in work places are responsible for preventing and deterring sexual harassment, and providing procedures for resolution, settlement, or prosecution of such acts.
Definition: Sexual harassment refers to unwelcome sexually determined behavior, including physical contact, advances, and requests for favors, sexually colored remarks, pornography, and other sexual conduct. It can be humiliating and pose a health and safety issue in employment or work. It is discriminatory if the victim believes their objection would disadvantage them or create a hostile work environment. Adverse consequences may occur if the victim refuses.
Preventive Steps: Employers in both public and private sectors must take steps to prevent sexual harassment. This includes announcing and publishing a prohibition of harassment, including such prohibitions in government and public sector rules, including them in private employers’ standing orders under the Industrial Employment (Standing Orders) Act, 1946, and providing appropriate work conditions to prevent a hostile environment for women.
Criminal Proceedings: The Indian Penal Code mandates employers to take appropriate action against sexual harassment complaints, ensuring victims or witnesses are not victimized or discriminated against, and allowing them to seek transfer of the perpetrator or their own.
Disciplinary Actions: Employers should initiate appropriate disciplinary actions if conduct constitutes mis-conduct in employment as defined by relevant service rules.
Complaint Mechanism: An employer’s organization should establish a complaint mechanism for victims of misconduct, ensuring timely and appropriate resolution of complaints, regardless of whether it’s a legal or service rule violation.
Complaints Committee: The complaint mechanism should be adequate, with a Complaints Committee, a special counsellor, and confidentiality maintained. The committee should be led by a woman and have at least half its members been women. It should involve a third party familiar with sexual harassment issues. Annual reports on complaints and actions are required.
Critical Analysis:
The Vishaka Guidelines, issued by the Hon’ble Supreme Court of India, have been instrumental in empowering women by providing a legal platform to combat sexual harassment at work. The court, influenced by international conventions and laws, connected the issue to the law of the land, thereby creating a new law. The Vishaka case has significantly changed the outlook on sexual harassment cases, transforming them from petty matters to serious issues. However, the Vishaka case highlights that despite India’s efforts to address gender inequality and sexual harassment through employment and law provisions, it has not taken social responsibility for creating a safe working environment many incidents of sexual harassment remain unreported, highlighting the need for women to adapt a “safe” environment and not punish the perpetrator. Despite the availability of remedies through the law, women facing workplace sexual harassment still face uncertainty about their safety. Conclusion:
The Vishaka judgment is a significant legal decision that broke constitutional restrictions on harassment and established guidelines to ensure on harassment goes unpunished. The court, in the absence of domestic law, read international law on the subject matter (CEDAW) and found authority for such reference. The judgment is both important and rational, directing employers to maintain constitutional principles of equality and liberty. It is not an example of judicial overreach, but rather a testament to judicial activism rather than irrational judicial overreach.
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