VISHAKA AND ORS. V. STATE OF RAJASTHAN AND ORS (1997)

Author: Manvi Tokas, The NorthCap University



COURT- SUPREME COURT OF INDIA

HON’BLE JUDGES- J.S. VERMA, C.J.I., S.V. MANOHAR AND B.N. KIRPAL, JJ

PETITIONER- FALI SAM NARIMAN, MEENAKSHI ARORA AND NITI DIXIT, ADVS

RESPONDENT- T.R. ANDHYARUJINA, SOLICITOR GENERAL, MUKUL MUDGAL, SUVIRA LAL, C.V. SUBBA RAO, K.S. BHATI AND M.K. SINGH, ADVS

DATE OF JUDGMENT- 13/8/1997


FACTS OF THE CASE-
Bhanwari Devi who was a ‘Saathin’, was an activist who worked preventing child marriages in the area of Bhateri, Rajasthan for the Women’s Development Project (WPD). She was a radical thinker and made all possible efforts preventing child marriages and injustices in the society. During one such movement, Bhanwari Devi was preventing the marriage of a one year old girl; for which she unsuccessful. The family of that one year old girl were powerful and as a result the efforts made by Bhanwari Devi to stop the marriage was in vain. Still, Bhanwari Devi was not a quitter and she tried her best, even reporting about the marriage to the police. Due to the frequent visits of the police to the village the villagers became agitated. As a result, they started threatening Bhanwari Devi and decided to boycott her. One day on 22 September, 1992, when Bhanwari Devi was working in the farm along with her husband; five upper caste villagers came and beat her husband while gangraping her. Bhanwari Devi reported the assault immediately to the police. But, due to the negligence of the police investigation there was a major delay in the investigation. The medical examination was delayed for over fifty-two hours. The report that finally came did not mention any commission of rape but rather the age of the victim.

Eventually Bhanwari Devi went to the court filing her case, but there were several reasons why she was unsuccessful in getting the justice she deserved. Firstly, Bhanwari Devi belonged to lower caste while the accused five villagers belonged to the upper caste and the villagers or the police or even the court was not convinced of the fact that a lower caste women can be raped by the upper caste males due to the acceptance of untouchability among the society. Secondly, the accused villagers where mostly a family and it was believed by most that family members could together commit such a crime. Lastly, there was insufficient evidence to hold the accused guilty therefore the trial court acquitted them. This acquittal resulted his huge agitation and backlash from other female activist and a notice of petition was given to State of Rajasthan and the Union of India. Ms. Meenakshi Arora and Ms. Naina Kapur who assisted the Court with full commitment. Shri Fali S. Nariman appeared as Amicus Curiae and rendered great assistance. The PIL was eventually filed by a women’s right group in the name of “Vishaka”. The focus of the same was ensuring and guaranteeing the fundamental rights of the women in the workplace. It said that any form of harassment in the workplace infringes article 14, 15, 19(1)(g) and 21; it also raised issues of the need for better protection of women from sexual harassment at the workplace.

LEGAL QUESTIONS INVOLVED-
Whether sexual harassment at the workplace is infringing the fundamental rights of an individual?
Whether the employer has any responsibility when such sexual harassment at the workplace occurs?


JUDGMENT-
The Supreme Court of India in this case for the first time gave a detailed justification for its decision in upholding the fundamental rights of the women at the workplace.
It was upheld that sexual harassment at workplace is in violation of right to equality provided under Article 14 of the constitution. Article 14 of the constitution states that-
Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15 is also violated in the same
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on only of religion, race, caste, sex, place of birth or any of them.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Article 42:
42 . Provision for just and humane conditions of work and maternity relief – The State shall make provision for securing just and humane conditions of work and for maternity relief.
Article 42 falls under the Directive Principles of the State Policy, which guidelines and principles enshrined in the Indian Constitution.
Other than that the court also referred to article 51 that Promotion of international peace and security. The State shall endeavour to-
(c) foster respect for international law and treaty obligations in the dealings of organised people with one another.

The court identified that in the words of Justice Verma –“In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in, Articles 14 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein”.

The court held its responsibility in identifying evils and making sure best of the justice to be upheld in the case.
Referring to the objectives of the judiciary mentioned in the Beijing Statement are:

Objectives of the Judiciary:
10. The objectives and functions of the judiciary include the following:

(a) to ensure that all persons are able to live securely under the Rule of Law;

(b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and

(c) to administer the law impartially among persons and between persons and the State.

The court decided certain guidelines that needed to be followed and abided to safeguard its citizens from such evils.

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 prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment.
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 favours; c) sexually coloured remarks; d) showing pornography;   e) any other unwelcome physical, verbal or non-verbal conduct.

Some other preventive measures or steps were also defined by the court, which were meant for the employers to be followed whether in public or the private sector to be abided by, for the proper maintenance and safeguarding its employees.

Some of the guidelines are-

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.

(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places.

The court further gave other guidelines as well like

Criminal Proceedings: When such conduct of sexual harassment occurs, the employer should initiate appropriate actions accordance with the law. 

Disciplinary Action: Where such conduct amounts to misconduct 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: An appropriate mechanism should be created for the proper complaints for the employees in just and fair way.

Complaints Committee: The complaint committee head should be a woman and less than half of its members should be woman. They should even involve third party such for example an NGO or any other body who is familiar with sexual harassment.

Workers Initiative: Employees should be allowed to speak about about sexual harassment at their workplace and other forums freely.
Awareness: Awareness about female sexual harassment and their rights on the regard should be created prominently by notifying the guidelines in appropriate manner.

Third Party Harassment: When sexual harassment occurs due to act or omission of a third party, the employer or person in charge will take all necessary to assist the effected person in terms of support and preventive action.

SUMMARY

Vishaka v. State of Rajasthan, is a landmark judgment as it identified the rights of victim of sexual harassment at workplace.
The case of Bhanwari Devi , wherein due to the negligence of the police, discrimination and lack of sufficient evidence the accused for gangrape where acquitted. The victim of sexual harassment at workplace, Bhanwari Devi, was therefore unable to derive justice form the courts.
But the same acted as a foundation towards transforming the legal system on India, as the result in the case of Bhanwari Devi agitated many others and a PIL was petitioned under the name of Vishaka. The focus of the same was for upholding the rights of those who are harassed at their workplace. Sexual harassment at the workplace was against the fundamental rights of an individual, namely article 14, 15, 19 and 21.
The supreme court referred to some provisions which envisage judicial intervention for eradicating social evils, like article 15(3), 42, 51A, 51(a),(c),(e), 253 and seventh schedule. The court also referred to international conventions such as Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region.


Through thorough thought and examination, the supreme court of India formulated its guidelines which came to known as the “Vishaka Guidelines”. These guidelines provided duty of the employer, defined sexual harassment, gave preventive steps, disciplinary actions, complaint mechanism, complaints committee, workers initiative, awareness, third party harassment.
These guidelines were to be treated as law declared under article 141 of the constitution. They were to be regarded as the foundation for the Sexual Harassment of Women at Workplace (prevention, prohibition and redressal) Act, 2013.


CONCLUSION

The Supreme Court of India is therefore responsible for interpreting the constitution and protect its citizens with guaranteeing them of their rights. In the case of Vishaka v. The state of Rajasthan, the supreme court, likewise, upheld the constitutional principles in administering justice and made a landmark judgment with formulating the “Vishaka Guidelines”, which protected the victim of sexual harassment at their workplace while also holding the role and responsibilities of others, especially that of the employer. The guidelines therefore formed the basis of Sexual Harassment of Women at Workplace (prevention, prohibition and redressal) Act, 2013. The case, showcased the power and rights of “Judicial Activism” in India. The case of Bhanwari Devi did not lead to the deserved justice, but the same led to reforms which now ensures justice to others who face sexual harassment at their workplace.

FAQS

Who was Bhanwari Devi?

  Bhanwari Devi was a ‘Saathin’ belonging to lower caste. She was an activist who workers preventing child marriages in the area of Bhateri, Rajasthan for the Women’s Development Project.

What is meant by ‘Vishala Guidelines’ and why is it considered so important?

The Vishaka Guidelines addressed the workplace hazards faced by women in their workplace. It not only safeguarded rights of the victim of sexual harrasment, but also provided roles and responsibilities of the employer and others.
It is considered very important because of the reason as before these guidelines no legal framework was their in India, and the case of Vishaka, for the first time addressed this issue at a wide scale.

Under which act does Vishaka Guidelines fall?

Vishaka Guidelines form the basis of Sexual Harassment of Women at Workplace ( prevention, prohibition and redressal) Act, 2013.

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