- Abstract
The Sexual Assailant tarnishes the inner self of a Woman. Women are not safe anywhere; from their homes to their workplaces, they have to face battle and constantly fight to protect their bodies. The trauma after sexual harassment is an unhealed wound . The case that led to the formation Anti Harassment Cell to ensure protection of women at work place. A women rights group named Vishaka approached the Hon’ble Supreme Court which addressed sexual harassment of the women at workplace . This landmark case established certain guidelines to prevent and address sexual harassment of women at their workstations and set up committee to handle the cases, eventually in 2013 the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal ) Act . This Case Analysis mentions the importance, and the need of women’s safety in workplace.
- Key Words
Sexual Harassment , Women Rights, Gender Equality,
- Introduction
A judicial stand for sexual harassment of women at workplace was pronounced through a landmark judgement by the Hon’ble Supreme Court in Vishaka v. State of Rajasthan. Even though the victim didn’t got justice but it paved a place in constitution. Her cry for justice awakened India’s conscience . Sexual Harassment can be termed as an unwanted sexual conduct which is against the consent of the victim.It include unwanted commenting, flirting , unwanted invitations or demand/ requesting for sexual favours ,inappropriate gestures ,jokes, sending sexually and vulgar messages explicitly. Sexual Harassment at workplace includes unwelcome sexual favours, making uncomfortable at their respective workstations to work. It creates discomfort and hostile work environment . It can occur in any form like physical, verbal, non-verbal, quid pro quo harassments. This case led the groundwork and the foundation for legal protection in this area. This case was a result of a gang rape of a social worker during her course of employment.
- Facts
This case brought a major reform for working women at their workplace . it addressed the issue of gender equality. This case was approached to the supreme court via public interest litigation by a women rights group named “Vishaka” and other women rights groups. In Rajasthan , a female social worker named Bhanwari Devi worked for social interest. She was a native of Bhateri , Rajasthan and was rendering her service in the Women’s Development Project (WDP) which was Government of Rajasthan’s initiative ,in 1985. She worked as a ‘Saathin’. She engaged in several activities and raised her voice against several social evils including rape and other injustices. One of the mission that she undertook changed her whole life.
In 1992,as a part of government’s campaign against child marriage she took up an issue
of child marriage of a girl child who was less than 1 year old. Despite knowing that it is illegal her family members decided to do this merciless act. As a part of her employment ,she decided to stop the marriage of the child who was the daughter of Ramkaran Gujjars. She failed to stop the marriage , the next day , the Sub-Divisional Officer and the Deputy Superintendent of Police intervened and stopped the marriage but the very next day the marriage proceeded without any police involvement . The villagers believed that the initial police involvement was due to Bhanwari Devi’s action due to that she was exposed to punishment and was boycotted, she also lost her job . she didn’t had any support.
On 22nd September 1992, five men including Ramkaran Gujjar took revenge by attacking Bhanwari devi and her husband, they brutally gang raped her infront of her husband who was witnessing this grave incident .The police delayed investigation by lagging to file the complaint. With immense courage they managed to file a complaint. For long fifty-two hours, her medical examination was postponed . The rape incident was not noted anywhere in the medical report rather they mentioned her age .Bhanwari Devi and her husband did not lose hope and they approached the trial court in Rajasthan. The trial court held due to lack of solid evidence , all the five accused were acquitted.
After this injustice, the petition was filed in the Hon’ble Supreme Court as a Public Interest Litigation under Article 32 by ‘Vishaka’ a group working for women’s rights along with many other institutions. The PIL focus was on enforcing working women’s fundamental rights at the workplaces under Article 14,15,19(1)(g),21 of the India Constitution and Article 11 and 24 of the Convention on the Elimination of All Forms of Discrimination against (CEDAW)Women. It spotlit the urgency to protect women from sexual harassment at work. One of the primary objective was to promote “gender equality” in the workplace.
- Issue
- Is it necessary to have a safe working condition to women ?
- Whether sexual harassment at working environment leads to violation of gender equality rights and right to life and personal liberty?
- Whether the employers owes any obligation in safety of women and in cases of sexual harassment?
- Legal provision
The incident led to violation of fundamental rights of ‘Gender Equality and the ‘right of Life and Liberty’ . The case revolves on the enforcement of fundamental rights of working women
- Article 14 – This right ensures no person shall be denied equality before the law or the equal protection of laws by the state within the Indian territory
- Article 15 – This article states that no citizen shall be discriminated on any grounds by the state and no citizen can be subject to any discrimination with regard to roads, access to shops, wells and so on . However, this doesn’t restrain state from making any special provision for scheduled caste, scheduled tribes, women, children.
- Article 19(1)(g)- This right gives citizen to practice any profession and can carry on any trade . However this right also amounts to reasonable restriction.
- Article 21- this right gives every person have his right of life and personal liberty and no one shall be deprived of it except to restrictions .
- Article 32- This right gives the citizen to approach supreme court for the violation of fundamental rights via writ. In this case the women group approached supreme court by filing ‘Mandamus’ writ.
- Article 42- This right mentions just and humane working conditions inclusind maternity benefits.
- Article 11 of CEDAW- the measures to be taken by the state to eliminate discrimination in employment against women, and ensuring for both men and women equal rights.
- Article 24 of CEDAW- The measures must be undertake by the government to fully realize the rights recognized in this convention.
- Legal reasoning
Petitioner’s Arguments
The PIL petition was filed in the Supreme Court seeking the writ of Mandamus. They mainly highlighted on the importance of legislation ,guidelines since India does not have any legislation. Man y complaints were not filed due to lack of redress mechanisms. They requested to review international conventions also . It also highlighted employers liability. The petitioners emphasised primarily on “Nilabati Behra v. State of Orissa” , The court cited ICCPR provisions to support its view that the right to compensation is a recognized part of enforcing guaranteed rights.It emphasized that this right, as a public law remedy under Article 32, differs from the private remedy in torts. The court stated that international conventions and norms can be utilized to interpret the fundamental rights guaranteed in the Constitution of India, which promote gender equality across all aspects of human life.
Respondent’s Arguments
The respected Solicitor General supported the to make effective implementations to prevent working place sexual harassment and contributed in making guidelines for the same.
- Decision
The three judge bench constituted for the case held that ‘gender Equality’ can be seen under the purview of Article 14, 19, 21 even though it doesn’t mentions explicitly. Basic Human Rights violation includes workplace sexual harassment of women. When it is on the matter of women only it violates gender equality . court while making it’s judgment emphasised the efforts to tackle the incidents.
Each such incident amounts to violation of Fundamental, rights of gender equality and life and liberty. It is violating the basic rights and more logically Article 19(1)(g), which gives a person to have the right to profess any profession of his desire includes safe working environment. This right spotlit the employer’s obligating to give adequate working condition to women where they feel secure.
Court observed that the only means to restrain these incidents can be done by issuing certain guidelines and gave directions to abide it . These guidelines also mentions the responsibility of the employers .It was applicable to Government of India. Hon’ble court mentioned that this guidelines were to be seen as a piece of legislation to cover the vacuum . Court states to see the guidelines as a declaration of law in accordance with article 144,until the actual legislation enacts.. States can refer international conventions while formulating the guidelines. However ,they have to ensure that it is not inconsistent with any domestic law provision.
Article 253 empowers the Indian government to create laws necessary for fulfilling its international obligations. When India enters into a treaty with another country, the Parliament can pass legislation to give effect to that treaty within our legal system. This ensures that international commitments are upheld domestically. Court also definition of sexual harassment , comprises of unwelcome sexual behaviour, such as request for sexual favours, showing pornography and so on .
- Vishaka guidelines
- Duty of the Employer and others, to prevent the commission of sexual harassment acts and to give measures for the resolution.
- Definition of Sexual Harassment- Unwelcome sexually determined behaviour, whether direct or implied, includes:
Physical contact and advances.
Asking for sexual favours.
Making sexually suggestive remarks.
Displaying pornography.
Any other unwelcome physical, verbal, or non-verbal actions of a sexual nature.
- Publication of prohibition of sexual harassment and also to provide appropriate penalties.
- Adequate conditions of working environment for women which is not hostile in nature.
- Establishment of complaints and redress mechanism in the workplace.
- If sexual harassment done by any third party , the employer must take adequate and prevention measures.
- Adequate disciplinary action must be taken for violation.
- Meetings must be held in order to spread awareness.
- the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal ) Act
The Lok Sabha passed this Act which is a legislative instrument to protect working women from sexual harassment at their working space. It is a culmination which mentions prohibition, prevention, addressing and redressal mechanism . salient features of the Act include:-
Sexual Harassment Definition: Sexual harassment is defined broadly as any unwanted behaviour that makes the workplace inhospitable for women, whether it be verbal, physical, or nonverbal.
Applicability: The Act protects women in a variety of work environments and is applicable to all workplaces, including public, commercial, non-profit, and informal sectors.
Internal Complaints Committee : To handle complaints and suggest solutions, organisations with ten or more workers are required to establish an ICC.
Employer Responsibilities: In addition to clearly posting the Act’s requirements, employers are required to stop sexual harassment, spread awareness, and keep a safe workplace.
Complaint Procedure: The Act describes the process for filing complaints, along with deadlines, privacy policies, and the ICC’s involvement.
- Relevant case laws
- Apparel Export Promotion Council v. A.K. Chopra
A K Chopra was accused of attempting to molest a female employee. In this case , it established liability of employers for sexual harassment and also to take preventive
actions.
- Poornima Advani v. Union of India
This case mentioned the applicability of prevention of sexual harassment act to governmental organizations. It mandates government to check internal complaint committees in their offices.
- Sanchayani Sharma v. National Insurance Company
The Delhi High Court in this case held the nature of the sexual harassment case. It mentioned verbal or non-verbal conduct such as unwelcome gestures, comments also amounts to sexual harassment.
- Analysis
This case shows how revenge shatters a person life and how money and influence hindered a person’s justice. Every door she knocked was not responding to her and even she didn’t got justice from trial court also. This set an example to ‘NO more Bhanwari’. She stood up for injustice but for her no one was there. The approach attempted by Vishaka was commendable. This case paved way for appropriate guidelines and proper legislative framework for working women at their working places. The Vishaka guidelines was a cornerstone for women empowerment and ensuring equal standards for men and women. Earlier women was confined in their home when they stepped for financial independence , safe and secure working conditions must be ensured . The Supreme Court’s judicial activism, aimed at upholding constitutional principles like equality and liberty, served as an inspiring example for all.
- Conclusion
Visaka case was one of the landmark judgement which gave immense right and protection. With this case various international conventions were referred ,in order to curb the sexual harassment offence ,India also enacted laws. India made significant changes and improvement for women. Apart from government, judicial interpretations everyone must ensure protection and the employers, offices must provide adequate working conditions for women.
Author: Aiswini R Pillai, a student at Lloyd Law College, Greater Noida
- FAQs
- Which is the landmark case that led to the formation of POSH Act,2013
Visaka v. State of Rajasthan is the landmark case of a gangrape of a social worker led to the enactment of POSH Act,2013 for securing safe working environment for women.
- Why Visaka v. State of Rajasthan is important?
This case is one of the important case in constitution of India , regarding Anti Harassment Cells at offices and Guidelines for prevention of Sexual Harassment at workplace. It also highlighted ‘Gender Equality’.
- How the pseudo name came?
The pseudo name ‘VISHAKA’ came as the PIL was filed in the Supreme Court by a working women rights group. This group filed mainly to enforce gender equality.
