Author-Tanay Kulkarni, A student from VES College of Law, Mumbai
Recently, a shocking incident has come to light according to which a female associate professor at West-Bengal National University of Juridical Sciences (WBNUJS), a renowned law school in country was sexually harassed by the Vice-Chancellor (V.C) of the institute. The professor has alleged that she had experienced sexual harassment and misconduct by her senior employee for four years, from September 2019 to December 2023. The other inconveniences she had faced include hold-up of salary, negation to promotion and professional threats by the vice-chancellor on denial of the sexual advances by him.
The professor has filed a case against him under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”). The Student Association of the institute has written a letter to its chancellor and the Chief Justice of India, Dr D.Y Chandrachud to suspend the vice-chancellor over the alleged complaint.
This is just one of the many cases that are registered by the women with respect to the sexual harassment at workplace and in the era in which the number of women working are constantly increasing, there is a requirement of a law that deals with such problems. This requirement is fulfilled by the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).
In this article, we will explore the landmark judgement of “Vishaka vs the State of Rajasthan (1997)” through which the POSH Act,2013 has originated.
Facts of the case-
Bhanwari Devi was a social worker from Bhateri, Rajasthan. She was working under a Women Development program of the Rajasthan Government to stop child marriage. Child marriage was a common practice in rural villages although it was illegal. In 1992 during her fight against child marriage she encountered a case in which the family of Ram Karan Gurjar had made arrangements to perform marriage of their one-year-old daughter. On getting to know about such arrangements she opposed the marriage and tried to convince the family to stop the marriage. The family rejected her views and proceeded with the marriage.
On 5th May, 1992 the police intervened and tried to stop the marriage but failed. The marriage was performed the next day and no action was taken against the family. Later, when the Gujjar family got to know that Bhanwari Devi was responsible for the attempted police obstructions, they used their influence and boycotted Bhanwari and her family from the village and she also lost her job. Later on, 22nd September, 1992 Ram Karan Gujjar along with five men attacked Bhanwari’s husband and gang-raped her in front of him as a form of retribution.
After the horrifying attack on her, she tried to file a complaint against the men at the local police station, but the police delayed in filing the FIR which resulted in the delay of investigation. At the police station she was taunted by the officer’s present there. Her medical examination was conducted after fifty-two hours of receiving the complaint, while as per section 164A of CrPC, the medical examination should be conducted within twenty-four of receiving the complaint. Not only that, but the medical examiner did not mention about the commission of rape in the report but only the gender of the victim. As a result, due to absence of any evidence present against the accused they managed to get an acquittal from the trial court.
Many Women’s Right Groups who were in favor of Bhanwari Devi, were unsatisfied with the acquittal of the five accused. The organizations came together and filed a Public Interest Litigation (PIL) in the name of “Vishaka” in the Supreme Court. They claimed that Sexual Harassment at Workplace violates article 14,15,19 and 21 of the fundamental rights present in the constitution.
Issues Raised-
- Whether sexual harassment at workplace infringe any fundamental rights?
- Does it even violate gender equality rights?
- Whether the employer has any responsibility in cases of sexual harassment against the employees?
Petitioner’s arguments-
The petitioners in this case were a group of NGOs and women’s right activists who were collectively called “Vishaka”, who filed a PIL at the supreme court of India.
They put forward their arguments stating that the acts of sexual harassment at workplace violates the following articles of the fundamental rights mentioned in the Part III of the Constitution of India-
- Article 14 (Equality before law)- The petitioners argued that the lack of protection against sexual harassment at the workplace violated the right to equality guaranteed under Article 14 of the Indian Constitution.
- Article 15 (Right against discrimination)- The act of sexual harassment at workplace violates Article 15 of the Indian constitution according to which, the state cannot discriminate on the grounds of religion, race, caste, sex and place of birth.
- Article 19 (1)(G)- They contended that sexual harassment at the workplace impeded women’s right to practice any profession or to carry on any occupation, trade, or business, as guaranteed under Article 19(1)(g).
- Article 21 (Right to life and personal liberty)- The petitioners asserted that the right to life under Article 21 includes the right to live with dignity, which is infringed by sexual harassment.
The petitioners also brought to the notice of the Hon’ble court regarding absence of specific legislation in India addressing sexual harassment at the workplace. They argued that this legislative gap needed to be filled to provide women with adequate protection and redress mechanisms. The petitioners also referred to international conventions and treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India has ratified. They argued that India was obligated under these international instruments to protect women from sexual harassment.
The petitioners urged the Supreme Court to issue guidelines that would serve as a framework for preventing and addressing sexual harassment at the workplace until comprehensive legislation could be enacted by the Parliament.
Respondents Arguments-
It was surprising to note that the Solicitor General appearing on behalf of the respondents, supported the petitioners. They assisted the Hon’ble court in sorting out an effective method to restrain sexual harassment and formulate guidelines to prevent it. Fali S. Nariman, the amicus curiae (Friend of the court), Ms. Naina Kapoor and Ms. Meenakshi, provided their valuable assistance to the court.
Judgement-
The judgement was given by a three-judge bench comprising of the then Chief justice of India J.S Verma, Justice Sujata and Justice B.N Kripal. The Supreme Court, while considering the arguments from both sides, acknowledged the significant gap in the legal framework regarding sexual harassment at the workplace. The Court recognized the urgency of protecting women’s fundamental rights and the need to provide immediate recourse in the absence of specific legislation.
The court stated that sexual harassment at workplace violates Art 14,15,19 and 21 of the constitution. This was the first time the court defined the word “Sexual Harassment”.
The Supreme Court issued detailed guidelines to address sexual harassment at the workplace, which would remain in force until suitable legislation was enacted by Parliament. These guidelines included a broad definition of sexual harassment, preventive measures, a complaints mechanism, disciplinary actions, and awareness programs. The Court stated that the Vishaka Guidelines were binding and enforceable in all workplaces across India. The Court underscored India’s obligations under international conventions like CEDAW and integrated these principles into the guidelines, thereby aligning domestic law with international standards.
The Vishaka judgment thus marked a critical intervention by the Supreme Court to protect women’s rights and laid the foundation for future legislation on the prevention of sexual harassment at the workplace in India. The guidelines given by the apex court became the base for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).
Key provisions of Vishaka Guidelines-
Definition: Sexual harassment means any type of physical contact or advances, demanding any sexual favors, showing pornography or any other unwelcome conduct whether it is physical, verbal or non-verbal act towards a woman.
Preventive Steps: Employers were required to take proactive measures to prevent sexual harassment, including the formulation of policies, awareness programs, and the display of notices regarding the consequences of sexual harassment.
Complaint Mechanism: Establishment of a complaints committee in each workplace, which must be headed by a woman and have at least half of its members as women. The committee should also include a third-party member from an NGO or another body familiar with sexual harassment issues.
Disciplinary Action: Guidelines for taking appropriate action against the perpetrator if the complaint is substantiated.
Awareness: Emphasis on creating awareness and conducting sensitization programs to educate employees about sexual harassment and the guidelines.
Significance of Vishaka Guidelines-
- The Vishaka Guidelines provided immediate and much-needed protection for women at workplaces across India.
- The guidelines served as the basis for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which codified the guidelines into law.
- The case is a prime example of judicial activism where the Supreme Court stepped in to fill a legislative void and protect fundamental rights.
- It led to increased awareness about sexual harassment in the workplace and urged organizations to adopt policies and training programs to prevent such behavior.
Conclusion-
The Vishaka case marked a pivotal moment in the fight against sexual harassment in India, highlighting the role of the judiciary in safeguarding human rights and prompting legislative action to protect women in the workplace. Although due to lack of evidence Bhanwari Devi was not successful in getting justice, but this case helped all the women in this country to be protected by the guidelines issued by the apex court. These guidelines established a framework for addressing sexual harassment and ensuring that women’s rights to work with dignity were upheld.
Based on these guidelines the Indian Legislatures finally adopted “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 “(POSH Act), which came into effect on 23 April 2013.
It is also important to note that though such legislations have been enacted to safeguard women, India still ranks as one of the most dangerous countries for women. From a law school to a multi-national company, women still face a lot of discrimination and unpleasant sexual advances from the colleagues and employers. Hence, it is our responsibility to ensure the safety of women not only at workplace but everywhere.
Frequently Asked Questions (FAQs)-
- What prompted the Vishaka Case?
The case was prompted by the brutal gang rape of Bhanwari Devi a social worker in 1992, which exposed the loophole in the legal system regarding the protection of women from sexual harassment at workplace. This incident led to the filing of a PIL to address this gap.
- Why is the Vishaka case considered a landmark judgement?
The Vishaka vs State of Rajasthan is considered as a landmark judgement because it addressed the problem of sexual harassment of women at workplace. The apex court issued guidelines on how should such cases be treated at an organization and made it binding in all institutions both government and private. Apex court used its function of judicial activism and issued guidelines until the legislature makes law on it.
- What are the Vishaka Guidelines?
The Vishaka Guidelines are a set of guidelines issued by the Supreme Court of India in 1997 to prevent sexual harassment of women at the workplace. These guidelines include definitions of sexual harassment, preventive measures, a complaint mechanism, and the requirement for awareness programs.
