Case Summary: Vishaka & Ors v. State of Rajasthan & Ors (1997) | Vishaka Guidelines | Sexual harassment of women in the workplace

Introduction

Vishaka & Ors. v State of Rajasthan is a milestone judgement given by the honourable Supreme Court of India that deals with aspects of sexual harassment of women in the workplace. The supreme court formulated the very famous Vishaka guidelines and made it mandatory for both private and public sectors to establish mechanisms to redress sexual harassment complaints.

Citation: (1997) 6 SCC 241

Court: Supreme Court Of India

Bench: Chief Justice J.S. Verma, Justice Sujata V. Manohar And Justice B.N. Kirpal.

Facts of the case

• Bhanwari Devi, a lady from Bhateri, Rajasthan, started working under the Women’s Development Project (WDP), run by the Government of Rajasthan, in 1985.
• In 1992, Bhanwari took up an issue based on the government’s campaign against child marriage as part of her job. The villagers were ignorant of the matter and supported child marriages despite knowing that it was illegal.
• In the meantime, the family of Ram Karan Gurjar decided to conduct such a marriage of his infant daughter. Bhanwari attempted to convince the family not to perform the marriage. However, her endeavours brought about being vain. The family chose to proceed with the marriage.
• On 5th May 1992, the sub-divisional officer, 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 established by the villagers that the police visits were a result of Bhanwari Devi’s actions. This led to boycotting Bhanwari Devi and her family, whereby she lost her job.
• To seek revenge, on 22nd September 1992, five men, i.e., four from the above-mentioned Gurjar family- Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar 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.
• At the police station, she was continually and grossly taunted by the women countable for the whole of midnight.
• At past midnight she was asked by the policeman to leave her lehnga as the evidence of that incident and go back to her village. She was just left with the bloodstained dhoti of her husband to wrap her body, because of which they needed to go through their entire night in that police station.
• 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 organisations chose not to be silent and raised strong protests and voices against the acquittal.
• A PIL was filed by a women’s rights organisation 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

• If formal guidelines were required to deal with incidents involving sexual harassment at the workplace?
• Whether sexual harassment at the workplace amounts to the violation of the fundamental rights of a woman?
• If the employer has any responsibility in cases of sexual harassment by its employee or to its employees at a workplace?

Contentions by the Petitioner

Although the judgement does not provide separate arguments made by both parties, some arguments were to consider while delivering the judgement:

The writ petition filed by Vishaka put forth the argument that sexual harassment at workplaces at common, and the employer often gets away with it in the absence of adequate legislation. Such acts violate the fundamental rights of the woman enshrined under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India.

A request was made at the Hon’ble Court to frame guidelines for preventing sexual harassment in the workplace.

Contentions by the Respondents

It is astonishing to note that the Solicitor General appearing on behalf of the respondents, supported the petitioners. The respondent assisted the Hon’ble court in sorting out an effective method to curb sexual harassment and formulate guidelines to prevent it. Fali S. Nariman, the amicus curiae, Ms. Naina Kapur and Ms. Meenakshi, provided valuable assistance to the court.

Judgement

The court held that sexual harassment at the workplace was indeed violative of the fundamental rights guaranteed under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India.

The court also defined sexual harassment as unwelcome “sexually determined behaviour (whether directly or indirectly) like physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical verbal or non-verbal conduct of sexual nature”.

The honourable court also acknowledged the lack of adequate legislation and loopholes which allowed such heinous crimes to thrive.

Section 354 and 354A of the Indian Penal Code 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 effective legislation to deal with sexual harassment cases.

The Court also took reference from the international conventions to give a deeper analysis. Article 11(1), (a) and (f) and Article 24 of the Convention on the Elimination of All Forms of Discrimination against Women were cited.

The court made a special mention that “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right.” Therefore, it was the court’s responsibility to show light in that regard, and it was their obligation under Article 32 to ensure that fundamental rights were protected at any cost.

The court also noted that it was discriminatory when the woman had reasonable grounds to believe that objecting to sexual harassment would disadvantage her in her employment in terms of recruiting or promotion or the creation of a hostile work environment.

Thus, sexual harassment need not involve physical contact. Any act that creates a hostile work environment by cracking lewd jokes, verbal abuse, circulating rumours etc, can be considered as sexual harassment.

The Hon’ble Supreme Court outlined the rules to forestall sexual harassment at the Workplace, known as ‘Vishaka Guidelines’, that should have been treated as law under Article 141 of the Indian Constitution to allow time-bound treatment of complaints. These rules provided the foundation for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The Vishaka Guidelines

1. Employers should take preventive measures like an express preclusion of harassment and provide healthy work conditions in matters of hygiene, comfort and health.
2. If there is an event of the infringement of administration rules in the workplace, suitable disciplinary action should be taken.
3. If the offences submitted fall under the domain of the Indian Penal Code, 1860, the employer must report them to the authorities.
4. An organisation should have a redressal committee to address harassment. This should be independent of the way that the demonstration establishes an offence under the Indian Penal Code, 1860, or some other law. Such a committee must have women as more than half of its members, and its head must also be a woman, including a counselling facility. A report must also be sent to the government annually on the development of the committee.
5. The business should take proper measures to spread awareness on the said issue.

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.

Originally Published on: Jun 16, 2021

Reference: Full Judgement Here

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