Explained: Vishakha v. State of Rajasthan

Dear Ladies! How was your day at your job or workplace today? Was there again anyone passing sexual comments or jokes, uninvited touching, making appeals for sex, and sending sexually blunt pictures in text messages or emails? It could be a manager, co-worker, or even a non-employee like a client, contractor, or vendor.  Don’t skip it or endure it, speak yourself as it is considered offense of sexual harassment. Your actions will not only provide justice to you rather it will save other women as well who are probable victims of him\her. Now, it’s your choice to be a victim or fighter in your life.

The case Vishaka & ors. v/s state of Rajasthan[1] is a great example of this where the fight of a lady from small village of Rajasthan led to the Supreme Court of India realized the need for a legislation that can check the evil of sexual harassment of working women because sexual harassment not only makes the person feel humiliated, offended and insulted but also infringe the fundamental right of the women of gender equality enshrined under Article 14 and of right to live a dignified life under Article 21 of the Indian Constitution. Therefore, until a legislation was enacted for the above said purpose, guidelines were framed to be followed at all workplaces or institutions by the Supreme Court.

FACTS OF THE CASE

The present case involved a woman named Bhanwari Devi resident of village Bhateri, Rajasthan who used to work for Women’s Development Project (WDP) run by the Government of Rajasthan. In the year 1992, Bhanwari was employed under government’s campaign at rural level to stop child marriage when she tried to stop the marriage of Gujjar’s daughter, who was merely less than one year old i.e. an infant only. But all her efforts were in vain as the family decided to go ahead with the marriage. 

Not only this, rather she and her family was boycotted by the said village and also she lost her job. On 22nd September 1992, to seek vengeance, five men i.e, four from the above-mentioned Gujjar 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. 

When she tried to report the incident, police criticized her only and mishandled the case due to which all the accused were acquitted by the Trial Court. Thereon, many social activists and organizations supporting Bhanwari criticized the said acquittal. And a women’s rights group known as ‘Vishaka’ filed Public Interest Litigation (PIL) against the violation of women’s rights under the provisions of Article 14, 15, 19 and 21 and Articles 11 and 24 of the Convention on Elimination of All Forms of Discrimination against Women.

ISSUES INVOLVED:

  • Whether the sexual harassment at Workplace amounts to a violation of Rights of Gender Inequality and Right to Life and Liberty enshrined under Art. 14& 21 of of the Constitution of India respectively?
  • Whether the employer has any responsibility when sexual harassment is done to/by its employees? 
  • Whether in the present case, the court could apply international laws in the absence of other applicable measures? 

JUDGMENT:

The present writ petition was decided by Chief Justice J.S Verma, Justice Sujata Manihar and Justice B.N Kripal and it was observed that:

“The fundamental rights guaranteed within Art. 14 & 21 of the Constitution of India encompass within its meaning and content all the facets of gender equality including prevention of sexual harassment or abuse.”

In furtherance, the Hon’ble Supreme Court of India framed guidelines known as “Vishaka Guidelines” today against the sexual harassment at Workplace. These guidelines confer responsibility upon the employer to prevent or deter the commission of acts of sexual harassment and to apply the appropriate settlement and resolutions including:

  • The prohibition of sexual harassment should be published in the appropriate ways and providing the appropriate penalties against the offender;
  • For private employees, the guidelines should be included in the relevant employment guidelines;
  • Appropriate working conditions in order to provide environments for women that are not hostile in order to establish reasonable grounds for discrimination;
  • The employer should ensure the protection of potential petitioners against victimisation or discrimination during potential proceedings;
  • An appropriate complaints mechanism should be established in the workplace with the appropriate redress mechanism;
  • Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.[2]

The Hon’ble Court also while framing guidelines recognized that in absence of any domestic legislation, the court can take reference from the international conventions for the purpose of interpretation of the freedoms guaranteed under Arts. 14, 15, 19 (1) (g) and 21 of the Constitution provided they should not be consistent with fundamental rights and of a harmonious spirit. In this case, the court placed its reliance upon the case of Nilabati Behera v. State of Orissa[3] while taking into consideration the provisions of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) . 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.[4]

Article 24- which states that the State shall undertake to adopt all necessary measures at the national level aimed at achieving the full realization.[5]” 

CRITICAL ANALYSIS:

In India prior to this judgment, there was no law against the sexual harassment at workplace. The Vishaka guidelines issued in instant case therefore indeed was a commendable step as it not only declared sexual harassment to be unlawful under constitutional guarantee of the right to life[6] and gender equality[7], other constitutional provisions, and international conventions, but also provided a legal mechanism against it. Now-a-days, these guidelines exist in more efficient form of a legislation known as “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”. Under these it is clearly elaborated what constitutes sexual harassment and established guidelines for what employers must do to protect their employees from this practice and how to respond to complaints wheresoever they arise. But the real question is “Are women safer today at their workplace than earlier times, or is there real decline in incidents of sexual harassment at workplace….?”

The reality is far away from our imagination as the National Crime Records Bureau (NCRB) data disclosed that despite of such guidelines and existing legislations in India, a woman is sexually harassed every twelve minutes.[8] Moreover, India’s capital city- Delhi recorded the most cases of sexual harassment at workplace in India in 2017, with 613, followed by Mumbai, with 391, and Kanpur, with 162. Now the question came up “why?” Some activists criticized the existing laws that they does not go far enough in dealing with sexual harassment. But in my opinion, the real problem lies with the execution rather than the legislation as there are sufficient laws under which action can be taken against this practice which is clear from the abovementioned reporting of the cases. In the time of Me Too movement also, various high profile cases of sexual misconduct were came up but the real problem lies with failure of duty on the part of police who allegedly mishandled such case.[9] Even in some cases, police denied to register reports of sexual harassment. Hence, India is in dire need of the strict executive’s action against the reported cases in order to curb the sexual harassment at Workplace rather any other bill or act.

CONCLUSION:

Our society in which a woman is worshipped as goddess, she is subject to grave harassment too. Even India was once described as the one of the most dangerous country in the world for women.[10] The reason being that everyone thinks of harassment as trivial and try to ignore it. But as the saying goes “the more you tolerate, the more it happens.” Hence, one should raise her voice against any such atrocity like Vishaka whose boldness and efforts paved the way for legal protections against sexual harassment in the workplace for millions of Indian women. In order to tackle this problem, India also needs to bridge the huge gap in laying down the manner of conducting the inquiry.  Otherwise, India will continue to see its socioeconomic development held back and the safety and dignity of its girls and women compromised. 


[1] (1997) 6 SCC 241

[2] Available at: https://www.equalrightstrust.org/ertdocumentbank/Microsoft%20Word%20-%20Vishaka_edited.pdf (last visited on May 6, 2021)

[3] (1993) 2 SCC 746 : (1993 AIRSCW 2366)

[4] Art. 11 (1) (a) & (f) of the Convention on the Elimination of All Forms of Discrimination against Women, 1979

[5] Art. 24 of the Convention on the Elimination of All Forms of Discrimination against Women, 1979

[6] Art. 21 of The Constitution of India, 1950

[7] Art. 14 of The Constitution of India, 1950

[8] National Crime Records Bureau (NCRB), “Crime Clock 2002” available at: http://ncrb.nic.in/ciiprevious/data/cd-CII2002/cii-2002/crime%20clock.htm. (last visited on May 6, 2021)

[9] Rina Chandran, “Much crime unreported in Indian cities, sexual harassment complaints ignored: survey” Reuters, April 28, 2016

[10] Available at: https://www.theguardian.com/global-development/2018/jun/28/poll-ranks-india-most-dangerous-country-for-women (last visited on May 6, 2021)


Author: Kanchan Bala from Lovely Professional University, Punjab.


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