Author: Harshi Gautam
Student at National Law University, Sonipat
ABSTRACT
Mahatma Gandhi once said – “The day a woman can walk freely on the roads at night, that day we can say that India has achieved independence.” It has been seven decades since Mahatma Gandhi has spoken the above words and compared to the present-day scenario, women are being subjected to sexual harassment, rape, gender discrimination, domestic abuse, eve-teasing, and so on in our country. It is a fact that India has been ranked ninth among the world’s most dangerous countries for women in the year 2024. This shows that even today, India has not achieved much in terms of women empowerment and their safety. One such evil is the sexual harassment at work place. Sexual harassment in the workplace is a form of sex discrimination which negatively affects the working environment, undermines gender equality at work, creates unfair practices in employment, and adversely impacts the dignity and well-being of workers. It creates psychological anxiety and stress for victims and if ignored, can result in high costs for companies through loss of productivity, low worker morale, absenteeism, and staff turnover.
INTRODUCTION
This article deals with the case of bravery of a woman who raised her voice against an illegal act that was about to happen at her workplace and was brutally gang-raped by five men. This barbaric incident made the woman file a case, which now known as Vishaka & Ors. v State of Rajasthan & Ors. and is a milestone judgement given by the honorable Supreme Court of India that deals with the aspects of sexual harassment of women in the workplace. Let’s dig into the details of the case to know more about how the law regarding the safety of women against sexual harassment evolved in India in the past two decades.
QUICK GLANCE AT THE CASE
NAME OF THE CASE
VISHAKA & ORS. V STATE OF RAJASTHAN & ORS.
CITATION OF THE CASE
(1997) 6 SCC 241
NAME OF THE COURT
HON’BLE SUPREME COURT OF INDIA
PETITIONERS IN THE CASE
VISHAKA AND ORS.
RESPONDENTS IN THE CASE
THE STATE OF RAJASTHAN AND ORS.
HON’BLE BENCH
CHIEF JUSTICE J.S. VERMA,
JUSTICE SUJATA V. MANOHAR AND
JUSTICE B.N. KIRPAL.
JUDGMENT PASSED ON
13TH AUGUST 1997
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. In the year 1992, she 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. 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 acclaimed by the villagers that the police visits were a result of Bhanwari Devi’s actions. This led to boycotting Bhanwari Devi and her family which resulted in losing her job.
To seek revenge, on 22nd September 1992, five men, i.e., four from the above-mentioned Gurjar family- along with one Shravan Sharma, attacked Bhanwari Devi’s husband and brutally gang-raped her. The police had attempted to play all dirty tricks to prevent her from filing any complaint due to which there was a delay in the investigation as well as medical examination which was deferred for 52 hours only to find that no reference of rape was mentioned in the report. In the absence of adequate proof and with the help of the local MLA Dhanraj Meena, all the accused managed to get an acquittal in the Trial Court.
Women activists and organizations chose not to be silent and raised strong protests and voices against the acquittal. A PIL was filed by a women’s rights organization known as ‘Vishaka’, which focused on the enforcement of the fundamental rights of women at the workplace under the provisions of Articles 14, 15, 19, and 21 of the Constitution of India and the need to protect their sexual harassment at the workplace.
ISSUES RAISED IN THE CASE
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?
If formal guidelines were required to deal with incidents involving sexual harassment at the workplace?
ARGUMENTS PUT BY APPELLANT
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. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. as the violation of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. The primary responsibility of ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. Therefore, they requested the Hon’ble Court to frame guidelines for preventing sexual harassment at Workplace.
ARGUMENTS PUT BY RESPONDENTS
Surprisingly, the learned Solicitor General appearing on behalf of the respondents (with their consent) in this case, 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.
JUDGEMENT GIVEN BY THE COURT
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. At the Fourth World Conference on Women in Beijing, the Government of India has also made a official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women’s Rights to act as a public defender of women’s human rights; to institutionalize a national level mechanism to monitor the implementation of the Platform for Action. It referred to the Beijing Statement of Principles on the independence of Judiciary 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). 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.
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.
VISHAKA GUIDELINES (1997)
HOLDING REGARD to the definition of ‘human rights’ in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and punitive laws in India do not adequately impart for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, it is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to assure the prohibition of sexual harassment of women:
Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to stop or dissuade the commission of acts of sexual harassment and to impart the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps that are necessary.
Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favors;
c) sexually colored remarks;
d) showing pornography;
e) 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.
Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
Disciplinary Action:
Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
Complaint Committee:
Such a complaint committee should be headed by a woman and not less than half of its member should be women. The committee must comprise of a counseling facility. It is also acceptable to collaborate with NGOs or any such organizations 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.
Workers’ Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
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. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
ANALYSIS
Through the Vishaka Case, the Hon’ble Supreme Court of India took a great step towards the empowerment of women by issuing guidelines to curb sexual harassment at Workplace. The Hon’ble court took reference from various international conventions and laws in the absence of domestic law, then connected it to the law of the land and gave birth to a new law altogether. The efforts put in by the Indian judiciary, in this particular case to safeguard women is commendable. The Hon’ble Court through the Vishaka Guidelines provided a strong legal-platform for all the women to fight against sexual harassment boldly. The Vishaka case changed the outlook towards sexual harassment cases as serious issues, unlike the past when such cases were looked upon as petty matters.
Like every coin has its two sides, based on the Vishaka case, one can figure out that though India tried to overcome the social evils of gender inequality and sexual harassment by providing employment and provisions of law, it did not succeed in taking social responsibility for an equally safe working environment. Even after having the law on our side to safeguard women, there are many incidents of sexual harassment taking place regularly which get unreported. Though there are remedies available with the law, for women facing sexual harassment at Workplace, the “safety” is not assured even after so many years.
CONCLUSION
The constitutional principles of equality and liberty have been upheld by the Hon’ble Supreme Court of India in the Vishaka Judgement. The Supreme Court of India’s judgement only proposed guidelines to alleviate the problem of sexual harassment. India finally enacted a law on the prevention of sexual harassment against female employees at the workplace, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Sexual Harassment Act”), which came into effect on 23 April 2013. It is cardinal to note 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. Therefore, it’s the responsibility of everyone to ensure women’s safety and dignity, even if legislation doesn’t exist.
