VISHAKHA VERSUS STATE OF RAJASTHAN & OTHERS, 13 August, 1997

-Nishtha Suman (BBA LLB 2nd year, Birla Global University

CASE NO.: AIR 1997 SC 3011

PETITIONER: VISHAKA & ORS.

RESPONDENT: STATE OF RAJASTHAN & ORS.

DATE OF JUDGEMENT: 13/8/1997

AUTHOR: CHIEF JUSTICE VERMA, JUSTI SUJATA V.

BENCH: J. S. VERMA, SUJATA MANOHAR & B. N. KIRPAL.

ISSUES:

How would situations, that called for a formal set of rules for handling sexual harassment in the workplace, be handled?
Whether the case of sexual harassment at the workplace amount to a violation of the fundamental rights of the female?
What role does the employer have in cases of sexual harassment by its employees or cases of sexual harassment at a workplace?

FACTS:

In this case, the PIL filed for the consequence of the brutal and merciless gang rape of a social worker who is known as Bhanwari Devi. She was working rigorously with several families in her village to control child marriage. One day at work she discovered that an upper-class family was trying to perform child marriage on a 1-year-old girl, as a result, she stopped marriage of an infant girl child.

Because of this, she was brutally raped by 5 men who were from the upper class of the society. She was raped, in the presence of her husband. Bhanwari Devi and her husband approached law enforcement to seek justice, but due to some political pressure police declined to register an FIR and also declined to lodge. This was not the only stumbling block that she encountered in her journey to seek justice, when she went to the hospital seeking medical attention the doctors were reluctant to write ‘rape’ in her report and her age was the only thing mentioned and included in the report.

Despite all these challenges, Bhanwari Devi and her husband did not give up and they continued to engage and turned to the trial court in Rajasthan to seek justice. The trial court acquitted all 5 accused men, as in many other similar cases, this decision was due to a lack of substantial evidence against these 5 accused individuals. It was further difficult for the court to comprehend that the husband was not interfering while she was being raped, and he just sat back and watched.

Unsatisfied by the judgment of the court, Vishaka an NGO and the other organizations approached the Supreme Court and filed a Public Interest Litigation under Article 32 of the Indian Constitution.

ARGUMENTS BY BOTH THE PARTIES

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

In the course of the hearing of the writ petition filed by Vishaka, the contention was put forth to the effect that sexual harassment at workplaces was a frequent occurrence and the employer in most cases got away with it given that there was no suitable legislation to curtail such action. They negate the constitutional rights of the woman envisaged under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India.

A prayer was later made at the Hon’ble Court to come up with a proposition on how to eradicate and or prevent the vice of sexual harassment in the workplace.

RESPONDENT: Interestingly, the Solicitor General representing the respondents join the petitioners. The respondent helped the Hon’ble Court, to determine the proper strategy to deal with sexual harassment, and helped in the formation of guidelines for its prevention. The able assistance of the amicus curiae Fali S. Nariman, Ms Naina Kapur, as well as Ms. Meenakshi, were of great help to the court.

COURT’S JUDGEMENT:

The Court stated that from incidents like the appellant’s sexual harassment, there is a violation of the Gender Equality right as well as the ‘Right of Life and Liberty’.
Indeed another practical realistic implication of such an incident is to negate the victim’s Article 19(1)(g) right to practice any profession, to engage in any occupation trade or business.
For anyone to exercise this fundamental right, must be in a safe environment as they perform their work.
The legislative and executive of the state are to preserve safety and dignity policies and to enforce the legislation made.

VISHAKHA GUIDELINES:

The employer or any other responsible person in the workplace shall ensure that no acts of sexual harassment are committed; and where such acts have been committed, then there should be methods of addressing, resolving, investigating or prosecuting the case.
Sexual Harassment includes:
a) Physical Contact and Advances
b) Demand or request for sexual favours
c) Sexually coloured remarks
d) Showing pornography
e) Any other unwelcome physical verbal or non-verbal conduct of a sexual nature

Employers within the public and private sectors should minimize the occurrence of sexual harassment by avoiding, rectifying and addressing the issue.
If any of the conduct constitutes a recognized IPC or any other law-specific offence, the employer has to complain
To be sure that victims or witnesses are not victimized or discriminated against.
An appropriate complaint mechanism should be created in the organization.
A complaints committee headed by a woman and at least 50 percent of women should be set up.
Workers should have an opportunity to address the issue of sexual harassment during workers’ meetings.
Awareness generation of the rights of female employees.

PREVENTION OF SEXUAL HARASSMENT (POSH ) ACT, 2013

The Act has laid down the meaning of sexual harassment in the workplace and also provided a code of conduct to get complaints redressed and protect from false or frivolous complaints.

Even domestic workers are been included in this act.

Every employer is bound to set up an Internal Complaints Committee at each unit/branch based on ten or more employees.

The Complaints Committees have the powers of civil courts and are expected to hear the parties’ request for conciliation before any investigation being launched if requested by the complainant.

Certain penalties had been provided for violation of the provisions of the Act as regards employers.

The State Government will communicate with the District Officer in every district where he/she will form the LCC so that women including the unrecognized and unorganized sector and small establishments can work in a sexual harassment-free environment.