Title: Vishaka & Ors v State Of Rajasthan
Equivalent Citations: (1997) 6 SCC 241
Petitioner: Vishaka & Ors
Respondent: State of Rajasthan
Bench: J. S. Verma (C. J), Sujata V. Manohar & B. N. Kirpal
Date of Judgement: 13/08/1997
Facts of the Case
Bhanwari Devi was a social worker/activist in women development project (WDP), a program initiated by the Government of Rajasthan aimed to curb child marriage. She used to work directly with the families to stop marriages and also reported cases to police in urgent cases. One such marriage which took place was in Ramakant Gujjar’s family. Her daughter was merely a year old and was an infant only. Bhanwari Devi tried her best to prevent the marriageand even reported the case to the police.
However even after widespread protest the marriage was successfully completed. In 1992, to seek vengeance upon Bhanwari Devi, Ramakant Gujjar along with his 5 men gang raped her in front of her husband. At first the police was not reluctant to file their case but later they were forced to do because of her determination. But then also Bhanwari Devi was subject to harsh treatment from the female constables. They even took herlehenga as evidence and all she was left with the blood stained dhoti of her husband. Their request to spend the night in police station was also refused.
The trial court acquitted the accused for not being guilty. The high court in its judgement held that it was a case of gang rape which was conducted out of vengeance. Aroused by the misery suffered by Bhanwari Devi many activists/social workers and NGOs filed a Writ Petition in the Supreme Court of India under the name of Vishaka. The SupremeCourt was asked to form guidelines which in the absence of any law in this matter would protect the female class from such incidents.
Whether or not it is mandatory to frame guidelines for preventing Sexual Harassment at Workplace?
Judgement (delivered by Chief Justice J. S. Verma)
The Court observed that the concept of gender equality is enshrined under the Constitution of India. With the increasing awareness and emphasis of gender justice, it is necessary to increase the effort to guard the rights provided to female class. The brutal incident has exposed the violations of rights and the urgency for safeguards by an alternative mechanism in the absence of legislative measures.
The court observed that these incidents result in grave violation of fundamental rights mentioned in article 14, 15 and 21 which aim for gender equality. Such harassment also results in the violation of freedom provided under Article 19(1)(g) ( ‘to practice any profession or to carry out any occupation, trade or business’). This freedom is dependent on the availability of a “safe” environment.
The court therefore held that such violation attracts remedy under Article 32 of the Constitution and a need for enactment of guidelines for the protection of these rights to fill the legislative vacuum.
The Court further observed the fact that the concept of gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The International Conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose. These conventions should be used as a means to enlarge the scope of these fundamental rights guaranteed in the Constitution.
The court in order to maintain independence of judiciary found its authority under Article 32 to fill the legislative gap and its role envisaged under Beijing Statement of Principles and Independence of Judiciary in LAWASIA region which was signed by the Chief Justices of the Asia and Pacific in 1995 as those representing the minimum standards necessary to be observed in orderto maintain an independent and effective functioning of the judiciary.
The court considered various international conventions such as ‘Convention on the Elimination of All Forms of Discrimination against Women’(article 11 & 24), ‘ the general recommendations of CEDAW’(article 11, 22, 23, 24). The Court also pointed out that the government of India at the Fourth World Conference on Women in Beijing made an official commitment to set up a National Commission which would protect the rights of women and ensure in achieving gender equality and gender justice.
Therefore the apex court held that for the purpose of judicial construction, international conventions and norms shall be used for construing domestic law when there is no inconsistency between them and there is a void in the domestic law.
In view of above observations made, the Supreme Court in the absence of any enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, framed guidelines and norms which were to be followed at all work places and other institutions until specific legislation is enacted for this purpose. The Supreme Court further emphasised that these guidelines would be treated as law under Article 141 of Indian Constitution.
It is necessary and expedient for every employer or responsible person at a work place or other institutions to observe certain guidelines to ensure prevention of sexual harassment of women :
- 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 by taking all steps required.
- Definition : For this purpose Sexual harassment such unwelcome sexually determined behaviour (whether directly or by implication) as :
- Physical contact and advances;
- A demand or request for sexual favours;
- Sexually coloured remarks;
- Showing pornography;
- Any other unwelcome physical verbal or non-verbal conduct of sexual nature.
- Some preventive steps need to be taken by every employer to prevent incidents of sexual harassment from happeningin both public and private sector.
- Expressly notify prohibition of sexual harassment
- The rules/regulations in government and public sector should also include rules prohibiting sexual harassment and penalties related to such acts.
- The standing orders of the private employer under the Industrial Employment act, 1946 should include provisions prohibiting sexual harassment.
- Appropriate environment and suitable workingconditions should be provided in respect of the work, leisure to ensure that there is no hostile environment to women at work place. Gender equality should be the focal point at every workplace.
- If the conduct amounts to an specific offence under the Indian Penal Code or any other law in force, the employer should take appropriate actions by making a complaint with the appropriate authority. The employer should further ensure that the victim or witnesses are not discriminated.
- Appropriate Disciplinary Action shall be taken in case there is a violation of service rules.
- An appropriate mechanism should be available in every workplace in order to redress the complaint made by the victim irrespective of the fact that the conduct amounts to offence under any law or breaches service rules.
- The above mechanism should include a complaints committee headed by a women and not less than half of its members should be women. Such Complaints Committeein order to avoid internal influence shall also include person from an NGO or any other organisation which have an experience in dealing with such matters.
- Employees should be allowed to raise issues related to sexual harassment in work meetings and in other appropriate forums.
- The employer should take appropriate steps in order to increase the awareness about the working women’s rights and regarding guidelines prohibiting sexual harassment.
- The Centre and state governments are requested to adopt suitable measures including legislation to ensure that the guidelines are followed by the employers of private sector.
- These guidelines will not be detrimentalto any rights available under the Protection of Human Rights Act, 1993.
The Supreme Court held that these guidelines would be binding and enforceable under law in order to promote the right to gender equality of the working women, until a suitable legislation is enacted to fill this present vacuum.
Vishaka Guidelines later formed the basis for the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This case is a perfect example in which the judiciary is inspired by the international conventions and protocols and expanded its role in maintaining independence of judiciary and guardian of fundamental rights provided by the Constitution of India. These conventions have laid down basic human rights which propagate gender justice and therefore have been instrumental in framing these guidelines.
The Vishaka guidelines is one of the best examples of judicial activism in which the judiciary in order to protect the fundamental rights of women and ensure gender equality at Workplace framed a piece of law which would not only protect women from the inhumane acts such as sexual harassment but also guide the government to enact a law for the same.
This blog is written by Alok Dubey, Asian Law College.
Some more of Alok BLOGs,
- Minerva Mills Case (Case Summary)
- The Constitution (103rd Amendment), Act 2019
- Defamation Laws in India
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