|
NAME OF THE CASE |
VISHAKA AND OTHERS V STATE OF
RAJASTHAN AND OTHERS |
|
CITATION OF CASE |
(1997) 6 SCC 241 |
|
NAME OF THE COURT |
HON’BLE SUPREME COURT OF INDIA |
|
PETITIONERS IN THE CASE |
VISHAKA AND ORS. |
|
RESPONDENTS IN THE CASE |
THE STATE OF RAJASTHAN AND ORS. |
|
HON’BLE JUDGE |
Chief Justice J.S. Verma, Justice Sujata V. Manohar Justice B.N. Kirpal. |
|
JUDGEMENT PASSED ON |
13TH AUGUST 1997 |
The
dead cannot cry out for justice. It is a duty of the living to do so for them
said by Lois McMaster Bujold a lady set an example in real time. Bhanwari Devi, who has
been fighting for justice for 29 years, and still did not get justice, but her
tremendous efforts helped many others.
Facts of the Case
- Bhanwari Devi is a woman living in Bhateri a village in the Indian State of Rajasthan located 55 kilometers from Jaipur.
- In 1985, Bhanwari Devi became a Sathin a grassroots worker employed as part of the Women's Development Project (WDP) which was about to stop child marriage in a village and this social program was administered by Rajasthan state government.
- On a day while at work she was working to stop a marriage of a 9-month-old girl child in Ramkaran Gujjars (thakurs) family.
- Unfortunately, the family accused her of humiliating them, and still managed to marry off the baby the next day.
- The five men, four from the aforementioned Gurjar family (Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar) and one Shravan Sharma, planned to exact revenge and then attacked Bhanwari Devi's husband, who was beaten unconscious later she was brutally gangraped by all five men.
- She went to the police station, but that didn't help she was told to leave her lehenga at the station for medical evidence. Bhanwari Devi, in her never-ending quest for justice, managed to file a complaint.
- The medical examination was delayed for fifty-two hours. However, the examiner did not mention any rape commission in the report, instead mentioning the victim's age.
- In the verdict of 15 November 1995, the district and sessions court in Jaipur dismissed the case and acquitted all the five accused.
- Five judges were changed, and it was the sixth judge who ruled that the accused were not guilty, stating inter alia that Bhanwari's husband couldn't have passively watched his wife being gang-raped.
- The matter came in light when a news published in Rajasthan Patrika went viral and then The State Government decided to appeal the judgement after being pressured by women's groups and non-governmental organizations.
- 15 years after the incident, in 2007 the Rajasthan High Court held only one hearing on the case and two of the accused were dead by then.
- This provoked women’s groups and NGO and a women’s rights group known as ‘Vishaka’ along with four other organizations to come together and filed a petition against this brutal gang rape
- The PIL was filed by a women’s rights group known as ‘Vishaka’. along with four other organizations to come together and filed a petition against this vicious gang rape, 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
- 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?
- Is it possible for the court to apply international laws in the absence of applicable measures under existing law?
- Court highlighted the problem of sexual harassment at work places and gender inequality, violence against women, assault.
Vishaka and various women’s rights activists, NGO and other social activists filed a writ petition. They put their contention that sexual harassment of women at workplace is violation of their fundamental rights enshrined under Article14, 15, 19(1)(g) and 21 of the Constitution of India and a safe working environment for women is need of hour.
Respondent's Argument
The respondent assisted the Hon'ble Court in determining a functional mode of operation to combat sexual harassment and in framing guidelines for harassment prevention. Fali S. Nariman, the Hon'ble Court's amicus curiae, along with Ms. Naina Kapur and Ms. Meenakshi, assisted the Hon'ble Court in dealing with the aforementioned case.
Earlier Laws
Before the Bhanwari Devi case, women had encountered sexual harassment at workplace however, in the absence of a law, were dealt with under
- Sections 354 IPC (Assault or criminal force to woman with intent to outrage her modesty).
- 509 IPC Word, gesture or act intended to insult the modesty of a woman
- 294 IPC obscene acts in any public place, or Sings, recites or utters any obscene song, ballad words, in or near any public place.
Fundamental rights of working women are violated under article 14, 19 and 21 of the constitution of India. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate.
It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or businesses. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Apart from previous articles mentioned, few articles which also have relevance are Article 15, Article 42, Article 51A and Article 253.The progress made at each hearing culminated in the formulation of guidelines to which the Union of India gave its consent through the learned Solicitor General, indicating that these should be the guidelines and norms declared by this Court to govern the behavior of the employers and all others at the work places to curb this social evil The Government of India has also made an official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women’s Rights to act as a public defender of women’s human rights; to institutionalize a national level mechanism to monitor the implementation of the Platform for Action.[1]
Vishakha Guidelines
Duty of the Employer or other responsible persons in work places and other institutions:
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.
Sexual Harassment Definition
Sexual harassment includes unwanted sexually determined behavior (directly or indirectly) such as:
- physical contact and advances
- a request or demand for sexual Favours
- remarks with a sexual connotation
- displaying pornography
- any other unwelcome sexual physical, verbal, or nonverbal conduct
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps-
- Express prohibition of sexual harassment as described above at the work area ought to be notified, posted and circulated in suitable ways
- The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
- As regards private employers' steps need to be taken to encompass the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
- To ensure there is no hostile environment at work place Appropriate work conditions should be provided in respect of work, health, hygiene and leisure and no women employee should have realistic grounds to believe that she is deprived in connection with her employment.
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.[2]
Disciplinary Action
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. [3]
Complaint Mechanism
Whether or not such conduct constitutions an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers' organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints[4]
Complaints Committee
Sexual harassment Complaints Mechanism [5]
- All workplaces should have an appropriate complaints mechanism with a complaints committee, special counsellor or other support services.
- A woman must head the complaints committee and no less than half its members should be women.
- The committee should include an NGO/individual familiar with the issue of sexual harassment.
- The complaints procedure must be time-bound.
- Confidentiality must be maintained.
- Complainants/witnesses should not experience victimization/discrimination during the process.
Workers Initiative
Employees should be allowed to raise issues sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer - Employee Meetings. [6]
Awareness
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. [7]
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 will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.[8]
- The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector. [9]
- These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993[10]
Related Provisions
Constitution
of India
- Article 14 (the right to equality)
- Article 15 (the right to non-discrimination)
- Article 19(1)(g) (the right to practice one's profession)
- Article 21 (the right to life)
- Article 11(1) (a, f): This article gives the right to work and right to protection of health, and also gives the right to safety in working conditions.
- Article 24: According to this article state parties should adopt all necessary mechanisms or measures at the national level to achieve the aim and the full realization of the rights which are recognized by the present convention.[11]
Harassment in the workplace continues to be prevalent even after the Supreme Court's decision, and it extends far beyond one's social background, educational level, cohort, or ethnic affiliation. It affects all strata of society, without exception.
A growing number of men filing complaints against female supervisors According to National Crime Records Bureau data, cases of sexual harassment in the workplace more than doubled between 2014 and 2015, rising from 57 to 119. There has also been a 51% increase in sexual harassment cases at other workplaces, from 469 in 2014 to 714 in 2015.
The Indian National Bar Association (INBA) discovered that 38% of the 6,047 participants (both male and female) had experienced workplace harassment. Sixty-nine percent of those polled did not file a complaint. Only 5% to 15% of harassed women report problems with sexual harassment.
Post Vishaka – Some Other Judgments
- Apparel Export Promotion Council v. A.K Chopra
- Medha Kotwal Lele & Ors. V. Union of India & Ors
Conclusion
Despite the laws and bills sexual harassment is still prevailing in India. We need to accept that men and women both can we victims of sexual harassment. However, the protection under the POSH ACT is available only to women.
Parliament need to pass a
comprehensive legislation observing the glitches that pervades the Act for
protection of both the genders. It should be abolished to prevent the dignity
and respect of the women People should learn higher moral values and seek the
art of controlling themselves.
For Original Copy of Judgement, Click Here
[1] https://main.sci.gov.in/judgment/judis/13856.pdf
vishaka and
ors. vs state of rajasthan and Ors (1997) 6 SCC 241.
[2]
http://iitg.ac.in/iitgicc/docs/Vishaka_Guidelines.pdf
[3]
http://iitg.ac.in/iitgicc/docs/Vishaka_Guidelines.pdf
[4]
http://iitg.ac.in/iitgicc/docs/Vishaka_Guidelines.pdf
[5]
http://iitg.ac.in/iitgicc/docs/Vishaka_Guidelines.pdf
[6]Nishith Desai, Prevention of
Sexual Harassment at the Workplace (POSH), Nishith Desai Associates
(December 2020 https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
[7] Nishith Desai, Prevention of
Sexual Harassment at the Workplace (POSH), Nishith Desai Associates
(December 2020 https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
[8] Nishith Desai, Prevention of
Sexual Harassment at the Workplace (POSH), Nishith Desai Associates
(December 2020 https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
[9] Nishith Desai, Prevention of
Sexual Harassment at the Workplace (POSH), Nishith Desai Associates
(December 2020 https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
[10] Nishith Desai, Prevention of
Sexual Harassment at the Workplace (POSH), Nishith Desai Associates
(December 2020 https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
[11]
https://www.un.org/womenwatch/daw/cedaw/
About the Author: This Case Brief is prepared by Nishtha, law student at University of Allahabad & Thirunavukarasar, law student at PRIST University, Madurai Campus, Tamil Nadu. They can be reached at nishthatiwari007@gmail.com
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 6 SCC 241 by Nishtha & Thirunavukarasar){kind=link}
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