CASE COMMENTARY ON VISHAKA V. STATE OF RAJASTHAN BY - VAISHNAVI SINGH
CASE COMMENTARY ON VISHAKA V. STATE OF RAJASTHAN
AUTHORED BY
- VAISHNAVI SINGH
Dr. Ram
Manohar Lohiya National Law University, Lucknow
Abstract
-The case study that follows in the result of author’s research. Sexual harassment at the workplace is a blotch on any society and
all sections must come forward to curb this menace. Sexual
harassment in the workplace is a serious issue that can have profound effects
on individuals and the work environment. Supreme Court in the year 1997 instituted Vishaka Guidelines
which were a set of guidelines that were intended to protect women at the
workplace. These are procedural in nature and state the method that is to be
followed while dealing with cases related to the sexual harassment of women.
The author has done their best to provide a briefing of the case during hearing
the same, and in the end also expressed opinion on the subject.
Keywords:
Vishaka guidelines, sexual harassment at workplace, gender inequality
FACTS
OF THE CASE
The
petition was filed in order to enforce the fundamental right under 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.
Bhanwari
Devi, a lady from Bhateri, Rajasthan, started working under the Women’s
Development Project (WDP), run by the Government of Rajasthan, in 1985. As a part of her job Bhanwari took up an issue
based on the government’s campaign against child marriage of which the
villagers were ignorant. The villagers supported child marriages despite
knowing the fact that it was 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. Despite
the fact that she married, she was not forgiven and her efforts to prevent
marriage. On September 1992, she was been gang any recommendation of her being
raped in her medical report.
In past midnight at police station she was been asked by the policeman to leave her lehnga as the evidence of that incident and go back to her village. After that, she was only left with the bloodstained dhoti of her husband to wrap her body.
In past midnight at police station she was been asked by the policeman to leave her lehnga as the evidence of that incident and go back to her village. After that, she was only left with the bloodstained dhoti of her husband to wrap her body.
In
the absence of sufficient evidence and with the help of the local MLA Dhanraj
Meena, 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) by a women’s
rights group known as ‘Vishaka’ which thoroughly examined the issues. [1]
ISSUES
In
this case, there are a number of issues that has been raised, such as:
•
Whether sexual harassment at
the Workplace amounts to a violation of Rights of Gender Inequality and Right
to Life and Liberty?
•
Whether the employer has any
responsibility when sexual harassment is done to/by its employees?
JUDGEMENT
The
judgment of Vishakha's case was conveyed by Chief Justice J.S Verma as a
representative of Justice Sujata Manihar and Justice B.N Kripal on account of
writ petition which was file by Vishakha the victim of this case. The court
observed that the fundamental rights under Article 14[2][2],
19[3](1)(g)[3]
and 21[4][4]of
Constitution of India that, every profession, trade or occupation should
provide safe working environment to the employees. It hampered the right to
life and the right to live a dignified life. The basic requirement was that
there should be the availability of safe working environment at workplace.
Secondly,
the Court dealt with the application of international conventions in the
absence of required Domestic Law. The court highlighted
that a relevant International Convention which is consistent with the
fundamental rights as well in harmony within its scope can be applied for the
promotion of the Object of the Constitutional guarantee as implied under the
Article 51 (c) and Article 253 read along with the Entry 14
under the Union List in the 7th Schedule of the Indian Constitution. In
addition to this, the court also emphasized Article 73.
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 Act.[5]The
court also suggested to have proper techniques for the implementation of cases
where there is sexual harassment at workplace. The main aim/objective of the
Supreme Court was to ensure gender equality among people and also to ensure
that there should be no discrimination towards women at there workplace.
After
this case, the Supreme Court made the term Sexual harassment well defined,
accordingly any 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 will come under the
ambit of sexual harassment.
CHARACTERSTICS
OF VISHAKA GUIDELINES [6]
The
court, for the first time, relied on an international human rights law
instrument, the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW)[7],
to establish guidelines known as the Vishaka Guidelines. It essentially
gave twelve guidelines to be followed in various areas and fields of law, even
when a new law is to be enacted.
By
accepting the Convention, States commit themselves to undertake a series of
measures to end discrimination against women in all forms, including:
•
making the duty of the employer
or other responsible persons in workplaces or other institutions to prevent
sexual harassment and to provide for the resolution and settlement mechanism.
•
to incorporate the principle of
equality of men and women in their legal system, abolish all discriminatory
laws and adopt appropriate ones prohibiting discrimination against women;
•
to establish tribunals and
other public institutions to ensure the effective protection of women against
discrimination; and
•
to ensure elimination of all
acts of discrimination against women by persons, organizations or enterprises.
CRITICAL
ANALYSIS
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.
On a serious note, this case deals with one of the most sensitive and needed
issues for women and indeed, has shed light on the same, to a certain
extent. If I draw parallels between the situations back then and now,
Sexual harassment still prevails to be a menace to women. Even after eight years of the enactment of the Sexual Harassment of
Women at Workplace Act.[8]
there are several incidents of sexual harassment being reported, moreover, many
go unreported.
The
Act, which was supposed to be very victim-friendly, causes complications for
the victim at every turn. Many sections are self-defeating and
nullifying, and certain essential features have gone unnoticed. Essential
mechanism procedures such as the provision of legal expertise, clinical
counselling facilities, medical insurances related to the violence,
compensation from the employer, and so on have not been made available. According
to me any such conduct done directly or indirectly under the definition of
Sexual Harrasment hampers not only the the right of women to life but also
affects there dignity to live. It hinders there mental and physical health.
Sexual harassment shall be avoided and the equality between the genders shall
be established at workplace.
In
a severely affected society like India, a firm and serious effort on the part
of the legislature is necessary to address and remove this problem. The
legislature should thoroughly review the Act and address the flaws that it
contains. The ultimate solution is the real change in the
mindset of society to establish gender equality. This huge gap can be
enrooted to the gender stereotyping mindset of the society. Only then, the feathers of Women Empowerment can be flaunted with
pride.
CONCLUSION
The
constitutional principles of equality and liberty have been upheld by the
Hon’ble Supreme Court of India in the Vishaka Judgement. Government
should make strict laws regarding the aversion of sexual harassment at
workplace, because it should realize that, women also constitute the working
population of our country. Hence, it is legal as well as a moral duty to
provide a safer work environment for women to prosper.
It is
the most significant landmark case in the history of cases involving sexual
harassment of women. The Vishaka guidelines (now been superseded by the Sexual
Harassment[9]
of women at the workplace (prevention, prohibition and redressal) Act, 2013). are
a set of guidelines that were instituted by the Supreme Court of India to ensure the safety of women at
workplaces and lays down the guidelines for dealing with the cases that are
related to sexual harassment at the workplace.
[1] Vishaka v State of Rajasthan [ 1997
] 6 SCC 241
[2] Article 14, Constitution Of India ,
(Right to Equality)
[4] The Constitution of India,1950
[5] The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.
[6] Ibid
[7] UN General Assembly, Convention on
the Elimination of All Forms of Discrimination Against Women, 18 December 1979,
United Nations, Treaty Series, vol. 1249, p. 13
[9] Supra