Vishaka&Ors
vs State Of Rajasthan &Ors on 13 August, 1997
NAME OF THE CASE |
VISHAKA & ORS. V STATE OF
RAJASTHAN & ORS. |
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CITATION OF THE CASE |
(1997) 6 SCC 241 |
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NAME OF THE COURT |
HON’BLE SUPREME COURT OF INDIA |
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PETITIONERS IN THE CASE |
VISHAKA AND ORS. |
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RESPONDENTS IN THE CASE |
THE STATE OF RAJASTHAN AND ORS. |
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HON’BLE BENCH |
Chief Justice J.S. Verma, |
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JUDGMENT PASSED ON |
13TH AUGUST 1997 |
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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. She was employed as a ‘Saathin’ which means ‘friend’ in
Hindi.
In
the year 1987, as a part of her job, Bhanwari took up an issue of attempted
rape of a woman who hailed from a neighbouring village. For this act, she
gained full support from the members of her village. In the year 1992, Bhanwari
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. The family decided to go ahead with the
marriage.
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 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. Bhanwari also lost her job amid this boycott.
On
22nd September 1992, to seek vengeance, 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 had attacked Bhanwari
Devi’s husband and later brutally gang-raped her.
The
police had tried all possible ways to avoid filing any complaint against the
accused which resulted in a delayed investigation. Even after facing so much
criticism, Bhanwari Devi, with her incessant determination to get justice,
managed to lodge a complaint. The medical examination was delayed for fifty-two
hours. However, the examiner did not mention any commission of rape in the
report but rather mentioned the age of the victim.
In
the absence of sufficient evidence and with the help of the local MLA
DhanrajMeena, all the accused managed to get an acquittal in the Trial Court.
But this acquittal resulted in a huge backlash from many women activists and
organizations which supported Bhanwari. These organizations came together and
raised their voice to attain justice, which resulted in the filing of a Public
Interest Litigation (PIL).
The
PIL was filed by a women’s rights group known as ‘Vishaka’. It laid its
focus on the enforcement of the fundamental rights of women at the Workplace
under the provisions of Article 14, 15, 19, and 21 of the Constitution of
India, it also raised the issue of the need for protection of women from sexual
harassment at Workplace
Issues
1.
Whether
its Violation of fundamental rights of Bhanwari Devi by the decision of trial
court guaranteed under article 14,15,19(g) and 21 of Constitution of India?What
is the role and responsibility of employer in sexual harassment
cases?
2.
Is
it possible for the court to apply international laws in the absence of
applicable measures under existing law?
3.
Court highlighted
the problem of sexual harassment at work places and gender inequality, violence
against women, assault.
Petitioners arguments
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.
The petitioners brought the attention of the Hon’ble court to the loophole that
the legislation has regarding the provision of a safe working environment for
women. They requested the Hon’ble Court to frame guidelines for preventing
sexual harassment at Workplace.
Respondent’s arguments
The learned Solicitor General appearing on behalf of the
respondents (with their consent) in this case did something unusual i.e,
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. NainaKapur and Ms.
Meenakshi provided assistance to the Hon’ble court in dealing with the said
case.
Judgment of the case
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. It referred to the
Beijing Statement of Principles on the independence of Judiciary[3] 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)[4]. 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.
The Vishaka guidelines
(1997) [5]
EMPLOYER’S OR OTHER EQUIVALENT
AUTHORITY’S DUTY– Employer or other responsible
persons are bound to preclude such indecent incidents of sexual harassment from
happening. In case such an act takes place, then the organization must consist
of a mechanism to provide prosecutorial and conciliatory remedies.
DEFINITION – For this purpose “Sexual Harassment” means disagreeable
sexually determined behavior direct or indirect 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.
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.
PROCEEDINGS IN CASE OF MISCONDUCT– If the offenses committed are the ones that fall under the
purview of the Indian Penal Code, 1860, then the employer is bound to take
prosecutorial action by complaining to the appropriate authority.
APPROPRIATE DISCIPLINARY ACTION– If there is an occurrence of the violation of service rules,
appropriate disciplinary action must be taken.
REDRESSAL MECHANISM– An organization must have a redressal mechanism to address the
complaints. This must be irrespective of the fact that whether the act
constitutes an offense under the Indian Penal Code, 1860, or any other law as
such.
REDRESSAL COMMITTEE– Such a redressal mechanism or more precisely such a complaint
committee must have women as more than half of its members and its head must be
a woman. The committee must comprise of a counseling facility. It is also
acceptable to collaborate with NGOs or any such organisations 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.
SPREADING AWARENESS– To raise sexual harassment issues, employer-employee meetings
must be held. The employer must take appropriate actions/measures to spread
awareness on the said issue.
Critical 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.
As a small example, let us assume
that a woman finally gets her dream job in a software company. The woman is
subjected to sexual harassment due to some reason. She wants to go and lodge a
complaint against the one who harassed her, but she chooses not to do it. She
is worried that if she complains, then she might not be able to continue
working in the company because her family members might stop her. Why? Cause
the family fears that the woman has been harassed once, so she might be
harassed again. The concern of people even today is that the female of their
house must learn to adjust until she is in a “safe” environment according to their
parameters. Not that the person who harassed her must be punished for what he
has done and to see to it that he does not repeat it. 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.
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