Vishakha and Others

vs.

State of Rajasthan and Others

[(1997)6 SCC241, AIR 1997 SC 3011]

Date of verdict: 13.08.1997

Bench: B N Kirpal, CJI S.V. Manohar

BACKGROUND OF THE CASE-

The verdict is the outcome of a petition filed by four women organisations along with Vishakha (which is a group dedicated towards female education and research) regarding the issue of sexual harassment of females at the workplace and their safety. Further to be simplified this  petition was filed as a response to the horrific incident of gang rape of a woman social worker named Bhanwari Devi who was working for a campaign towards ending the age old social stigma of ‘child marriage’ prevalent in Rajasthan. Her work involved indulging with the families to prevent such marriages and reporting the local police for follow-up action. In one such case she reported to the police the child marriage of a one year old infant to be held by a family of ‘gujjars’ (also known as Gurjars, a community in Rajasthan). This intervention by the victim Bhanwari resulted in her boycott by her community as well as she brutally gang raped by five men in front of her own husband who was detained by them.

Further no help was rendered to her or her husband by the police, instead there was delaying in lodging the case and the police shamelessly asked the victim to leave her skirt at the station as piece of evidence. Neither any proper medical help was rendered to her until 52 hours had passed. The victim still seeking justice lodged the complaint and brought up the case before the trial court which acquitted all the accused men on the lack of sufficient evidence. The trial court refused to accept the fact that a man along with his nephews can rape a woman, that how can her husband be restrained while all this was happening and also pointed that there was delay in reporting to the police about the rape. The high court on the contrary held that it was a case of revenge that had caused these men to gang rape the victim.

Supporting her cause, various women organisations filed a PIL in the SC under Art.32 of the Indian Constitution to highlight the issue of sexual harassment experienced by women at their workplace.

ISSUES BROUGHT UP BEFORE THE SUPREME COURT:

1. Legal Safety of women from sexual harassment at their workplace.
2. To bring into realisation of the real notion of ‘gender equality of women’ at workplace; by means of appropriate methods.

PROVISIONS INVOLVED:

1. Right to equality (equality before law) under Art.14 of the Constitution.
2. Right against discrimination under Art. 15.
3. Right to carry on profession of one’s own choice under Article 19 (1) (g).
4. Right to protection of life and personal liberty under Article 21.
5. Article 32
6. Art. 51 (c) – fostering respect for international legislations and treaties.
7. Art. 253- Power of the parliament to make and enforce legislation for giving effect to international agreements, conventions or decisions made at international conferences etc.
8. Articles 73 and 141 of the constitution.
9. Entry 14 of the union list under seventh schedule- entering and implementing of conventions, treaties and agreements with foreign countries
10. Arts. 11 (1) [a, f] and 24 of the CEDAW (Convention on the Elimination of all forms of Discrimination against Women)
11. Sec. 2 (d) of the Protection of Human Rights Act, 1993- which defines the term ‘human rights’.

FINAL VERDICT:

The court in the verdict after considering the situation of the penal and civil laws being unable to provide any kind of protection (mostly legal protection) to women who face sexual harassment at their work, gave certain guidelines to be followed by the employers and other people who hold authoritative positions at the organisations or workplaces, so that a kind of working environment is created which turns out to be safe and optimal for female workers or employees. These guidelines were:

1. The employers and the people who hold responsible positions at organisations and other workplaces have a duty to ensure prevention and deterrence of acts or activities which might lead to sexual harassment. Secondly if such a thing happens it is their duty to ensure that such acts leading to harassment should be resolved, settled and prosecuted if needed.
2. The second guideline intended to clarify the meaning of sexual harassment, as such an unwanted sexual behaviour which is shown directly or by implication comes out of :

1. A physical touch or gesture.
2. Appeal or demands of sexual favours.
3. Sexual remarks.
4. Forcing to see or intentionally showing sexually explicit content. 
5. Any other objectionable conduct of sexual nature which constitutes physical, verbal or non-verbal gesture.

3. Any employer or in-charge of either governmental or non-governmental organisation or private is required to take steps to ensure :

1. Express notification, publication and circulation regarding prohibition of sexual harassment at the workplace.
2. Inclusion of rules and regulations ensuring prohibition of sexual harassment of women at workplace in the list of rules and regulations of the government and public sector bodies as well as inclusion of punishment for the perpetrators.
3. Suitable working environment and optimum conditions including health and hygiene as well as belief of the female employees that she should not be disadvantaged by any means.

4. It is the duty of the employer to file a complaint in case an offence has been committed. Secondly it is the duty of the employer to ensure that neither victimization nor harassment of the victim employee or the witnesses if any takes place. The employer has to ensure that the victim can avail the option of transfer of either of her own or that of the perpetrator.
5. It is the duty of the employer to take appropriate disciplinary action against misbehaving conduct of the perpetrator. Such an action has to be initiated in accordance of the respective rules of the organisation.
6. A proper mechanism of complaints and complaint redressal system has to be created by the employer at the workplace to ensure that the complaint is heard off within a specified time period. Such a mechanism should operate whether the conduct constitutes an offence under the penal law or not.
7. This complaint mechanism should be able to provide an adequate committee for complaint redress, special counsellor, and other support system. The confidentiality clause has to be maintained.
8. A conducive environment that allows the workers to raise and discuss sexual harassment related issues at the meetings.
9. Notifying these guidelines until a proper law is enacted in this regard creating awareness about women rights at employment.
10. It is the duty of the employer or the in-charge of the enterprise or the organisation to help the victim in seeking appropriate action if the perpetrator happens to be a third party or an outsider.

The court held that until a proper legislation is formed these guidelines are to be treated as a law, by virtue of Art. 141 of the Indian Constitution. 

THE CONCLUSION:

This verdict has lead to major events. The first event is despite these guidelines were formed the victim Bhanwari Devi is yet to receive justice. Secondly the union legislature enacted a law named “SEXUAL HARRASSMENT AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013” after the incident of the famous nirbhaya rape took place in Delhi in 2012. In this Act the word workplace has been given the widest connotation.  Lastly despite all this there have been numerous incidents of harassment and discrimination faced by women till date and the present condition going in the country is yet miserable for innumerable female employees in the existing strata of society.