CITATION- (1997) 6 SCC 241
JUDGES- Chief Justice J.S. Verma
Justice Sujata V. Manohar
Justice B.N. Kirpal
PETITIONER- Vishaka & ors
RESPONDENT- The State of Rajasthan & Ors
INTRODUCTION
A serious offence like sexual harassment shatters the soul of a woman and when such a thing happens at workplace, it is totally unjustifiable. The case Vishaka & ors VS The state of Rajasthan & ors is a landmark judgement care in the area of sexual harassment at workplace; passed on 13 August 1997, this judgement closely eliminates the loopholes present in the Section 354, 354(A) of IPC, 1860. This case presents the undeniable strength and courage of a woman to stand up against the evil of Rape and child marriage.
FACTS OF THE CASE
1. Bhanwari devi from Bhatni, Rajasthan, under the Women’s Development Project (WDP) was employed as SAATHIN in 1985.
2. As a part of her job, she took up the issue of attempted rape of a woman in nearby village in 1987, for which she gained full support of the villagers and the society.
3. In 1992, Government launched the campaign against child marriage, but this campaign gained ignorance by all the members of the village.
4. During the same time Ram Karan Gurjar, a man from Bhanwari’s village, finalised his infant daughter’s wedding.
5. Bhanwari Devi tried her best to convince the family against the marriage, but despite knowing the law, they went forward to continue with the marriage.
6. On 5th May 1992, the Sub divisional officer (SDO) and Deputy Superintendent of Police (DSP) were said to stop the marriage, but despite this, Ram Karan Gurjar, married his daughter the next day.
7. People in the village blamed Bhanwari Devi for the police visits and she was subjected to boycott by the villagers.
8. Bhanwari Devi also lost her job due to the boycott.
9. On 22 September 1992, five men, four of them belonging to Gurjar family- Ram Subh Gurjar, Gyarsa Gurjar, Ram Karan Gurjar, Badri Gurjar and Shravan Sharma, attacked Bhanwari’s husband and gang raped Bhanwari devi.
10. The male doctor at the primary health care centre, declined to examine Bhanwari, and the doctor at Jaipur only provided the age of Bhanwari in her medical examination, therefore no commission of rape was mentioned.
11. The medical examination was delayed by fifty-two hours.
12. She was continuously taunted by the woman constable the rest of the night in the police station, where she went to lodge a complaint.
13. Past midnight, she was told to leave her lehenga at the police station, due to which Bhanwari devi had to spend another night at the police station.
14. The trial court discharged the accused for Not Guilty.
15. The High in its judgement ruled out that it was a case of gangrape with the intentions of revenge by the Gurjar family.
16. The statements by the Trial court and the High court aroused the women, and the organisation Vishaka filed a writ of Mandamus in the Supreme Court.
17. The PIL was filed under the articles 14, 15, 19(1)(g) and 21 of the Indian Constitution.
ISSUES OF THE CASE
Whether or not it is mandatory for enacting guidelines for prevention of sexual harassment of women at workplace.
CONTENTIONS OF PETITIONER
The petitioner argued that sexual harassment at workplace is a very common practice and due to lack of legislation, the accused get away with the charges easily.
They contended that harassment at workplace is a violation of their fundamental rights under Article 14,15,19(1)(g) and 21 of the Indian Constitution and the legislations for the same are the need of the hour.
CONTENTIONS OF THE RESPONDENT
The Solicitor General, appearing on the behalf of the respondent, supported the petitioner and assisted the hon’ble Supreme Court in finding the effective method to avoid such cases and reduce the loopholes. And therefore, framing new guidelines.
Assistance to the hon’ble Supreme Court was provided by Fali S. Nariman (The amicus curiae of Supreme Court) along with Ms. Naina Kapur and Ms. Meenakshi.
JUDGEMENT
The judgement was given by a 3-judge bench in the Supreme court.
The apex court held that harassment at the workplace is a clear violation of a woman’s fundamental rights under Article 14,15,19(1)(g) and 21.
Women have the right to be free from sexual harassment at workplace and a special code should be curated to eliminate such type of issues and stop harassment and discrimination.
The Hon’ble Supreme Court gave the definition of sexual harassment in a wider context by defining it as “an uninvited sexually determined behaviour direct or indirect in the form of physical contact, demanding sexual favours, showing pornography, sexually colour remarks, making sexual gestures, passing sexual comments, or any other uninvited physical, verbal or non-verbal conduct of sexual nature”.
The Vishaka Guidelines were formed to prevent the sexual harassment of women at workplace-
VISHAKA GUIDELINES-
‘The main features of the Vishaka Guidelines are –
1. Definition of sexual harassment
sexual harassment includes such unwelcome sexually determined behaviour (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 of sexual nature Where any of these acts is committed in such circumstances where-under the victim of such conduct has a reasonable agitation that in relation to the victim’s employment whether she is drawing salary, honorarium or voluntary, whether in government, public or private sector, such conduct can be humiliating and may lead to a health and safety problem.
2. Duty of the employer
It shall be the duty of the employer and other staff to stop or deter the commission of acts of sexual harassment/molestation and to provide procedures for the resolution, settlement or prosecution of acts of sexual harassment at office by taking the specified steps.
3. Preventive steps
It is directed to all the employers, either of public or private sector to initiate the following steps to prevent sexual harassment at workplace.
Express prohibition of sexual harassment as outlined above at the work place should be notified, published and circulated in appropriate ways.
The Rules/Regulations of Government and Public Sector bodies concerned with the conduct and discipline should include rules/regulations prohibiting molestation and supply for appropriate penalties in such rules against the offender.
Private employers should take steps to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
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
Criminal proceedings
Where such conduct amounts to a selected offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the concerned authority. it should be taken care that victims, or witnesses are not discriminated against or victimised while dealing with complaints of sexual harassment. The victims of molestation/harassment should have the option to seek transfer of the accused or their own transfer.
Disciplinary action
Where such conduct leads to misconduct in employment as defined by the service rules, appropriate disciplinary action should be taken by the employer in accordance with those rules.
Complaint Mechanism
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be formed in the employer’s organisation to address the complaint made by the victim. Such a complaint mechanism should ensure time bound acknowledgement and treatment of complaints.
Complaints committee
The complaint mechanism should be adequate to provide, a Complaints Committee, a special counsellor or other support service, the confidentiality must be maintained.
The head of the Complaints Committee should be a woman and not less than half of its members should be women.
The complaints committee should involve a third party such as an NGO or another body familiar with the issue of sexual harassment.
The Complaints Committee is supposed to make an annual report to the Government department concerned of the complaints and action taken by them.
Workers Initiative
Employees/workers should be allowed to raise issues of sexual harassment/molestation at a workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer Employee Meetings held at workplace.
Awareness
All Female employees should be made aware of their rights about sexual harassment at workplace. This should be created in particular by notifying the guidelines.
Third Party Harassment
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge are required to take all steps important and needed to assist the affected person in terms of support and preventive action.
The Central/State Governments are requested to consider adopting necessary measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in the Private Sector.
CONCLUSION
The case Vishaka & ors VS The State of Rajasthan &ors has formed the basis of the Sexual Harassment of women at the workplace (prevention, prohibition and redressal) Act, 2013.This case was a landmark judgement that has helped many women to gain justice and safeguard themselves from the evil of sexual harassment at workplace.
The loopholes present in the earlier legislations were carefully eliminated by the hon’ble Supreme Court and this was one of the rarest cases where the Solicitor General supported the petitioners.
Sexual harassment can leave a huge impact on a woman’s life and make her feel underconfident at her workplace. There are many women like Bhawani devi who are denied justice and the Vishaka Guidelines laid down by the Supreme Court have protected the interests of many women and given them protection.
This article is written by Reya Dutta of Christ University Bangalore.