Case Analysis: Vishaka and Others v. State of Rajasthan
AIR 1997 SC 3011
Vishaka and Others …Petitioner(s)
Versus
State of Rajasthan and Others …Respondent(s)
CASES REFERRED
Nilabati Behra v. State of Orissa
BENCH
J.S. Verma C.J.I., Mrs. Sujata V. Manohar and B.N. Kirpal. JJ
JUDGEMENT DATE
13 August 1997
Introduction
The Vishakha v. State of Rajasthan is a landmark judgment case in a history of sexual harassment by an Indian judiciary. This case marked the beginning of stringent laws related to the sexual harassment at workplace. Sexual harassment means an unwelcome sexual behavior or sexual gestures from one gender to another. It includes staring and leering at someone, passing unwanted sexual remarks, displaying obscene pictures, asking for sex, doing unwanted messaging and insulting you with sexual comments. Prior to this case there was no law related to the sexual harassment at workplace but after this the Supreme Court provided the set of guidelines against the employers as well as other responsible persons or institutions to provide protection of sexual harassment to women at workplace.
The Supreme Court also stated that the instances of sexual harassment resulting in violation of fundamental right of women of gender equality which is defined under Article 14[1] of the constitution and right to life and right to live with dignity under Article 21[2] of the constitution of India is being violated. Sexual harassment makes the person feel offended and humiliated to the person it has been done. The main reason for the cases of sexual harassment at workplace being increasing in our country was that at that time there was no law which will punish an offender but after the Vishakha guidelines, years later the legislative act was enacted and enforced by the parliament i.e. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Facts of the case
The immediate cause for the filing of the writ petition is an incident that had happened in a village of Rajasthan of alleged brutal gang rape of social worker. Bhanwari Devi was a social activist worker for social development program working on the campaign to end child marriage in the village which was initiated by the Rajasthan’s state government. The part of her job is to prevent child marriages with the family and report the cases of child marriage to the police if urgent action is needed. This is the particular case reported by bhanwari Devi of arranging a child marriage by a Gujjar community of a girl who was one year old an infant girl in the village. As a part of her job she tried to stop the marriage but after all her efforts she cannot do so and after all this she was boycotted from her community and was exposed for social punishment too.
In September 1992 the five members of Gujjar community named Ram Sukh Gujjar, Ram Karan Gujjar, Gyarsa Gujjar, Badri Gukkar and Shravan Sharma went to the house of Bhanwari Devi, attacked and restrained her husband and brutally gang raped her in front of her husband. After this Bhanwari and her husband went to the police for help. The investigation was not launched thoroughly and police delayed taking statements regarding what had happened. The police told the lady to leave her skirt as evidence before they were asked to leave the police station. Bhanwari was also forced to seek medical help at Jaipur hospital. When she arrived, the doctor declined to survey her and only recorded her age for confirmation without mentioning any evidence of rape in the medical report.
For seeking justice the victim filled the case at trial court where the court discharged all the five men and while dismissing the plea the judges found unbelievable that an uncle and his nephews would rape another woman together. After that she appealed in the high court where the court ordered that it was a case of gang rape which was conducted out of the revenge. After all these types of cases many NGOs and women workers urged the Supreme Court and filed a PIL in the court related to punish the offenders who sexually harassed people at the workplace.
Judgment by the Supreme Court
The writ petition filed by Vishakha (Group for Women’s Education and Research) and other women organization for the violation of fundamental rights of working women under Article 14,19[3] and 21 of the Indian constitution in view of increasing cases of sexual harassment at workplace. The court focuses that it is against gender equality, free trade and the profession of women and right to life and liberty. It also stated that it is the duty of employers to provide a safe and secure environment at the workplace.
In particular court referred that protection from sexual harassment and right to work with dignity is a basic fundamental right and also considered India’s ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which prohibits discrimination in the workplace as mentioned under Article 11 (1) (f)[4] – The right to work and the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. The states are under obligation to provide specific measures in order to provide realization according to the present convention.
The Supreme Court held that there should be no gender inequality and no discrimination on the basis of gender at workplace, women have fundamental right to freedom at workplace and also the court issued several guidelines in order to curb sexual harassment and also to implement secure environment at the workplace for the women workers.
“Vishakha guidelines”
· Duty of the Employer or other responsible persons in workplaces and other institutions:
It basically defines 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.
· Definition:
The definition of sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:
a) physical contact and advances
b) a demand or request for sexual favors
c) sexually colored remarks
d) showing pornography
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature
· Preventive Steps:
All employers or persons in charge of a workplace – including private employers – should take the following preventative steps, which include:
a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways
b) 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
c) Appropriate 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 and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment
· Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action 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.
· 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.
· 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 created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanisms should ensure time bound treatment of complaints.
· Complaints Committee:
The complaint mechanism should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
· Workers’ Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
· Awareness:
The Awareness to female employees of their rights in this regard should be created in particular by prominently notifying the guidelines.
Related Provisions
1. Sexual Harassment
According to Section 354A, a person shall be guilty of the offence of sexual harassment against a woman in the following circumstances-
- If he makes physical contact and advance unwelcome and explicit sexual act;
- Demands or requests for sexual favours;
- Shows pornography against the will of a woman;
- Make sexually coloured remarks.
The punishment for the offences specified under Section 354A (1) (i) to (iii) is the rigorous imprisonment for a term which may extend to three years or with fine or both and in the case of sub clause (iv), it is imprisonment for a term which may extend to one year or with fine or both.
Sexual harassment is one of the manifestations of the male dominance and the status of women who are being viewed as objects of pleasure. This is more deeply felt in societies which are patriarchal in nature. Indian society being an inherently patriarchal society. Although very commonly used term, the exact meaning what constitutes sexual harassment remains unclear.
Eve Teasing may be understood as verbal or physical acts or gestures by men towards women in a public place. In India eve teasing which is considered to be a colonial legacy is still continuing and perhaps constitutes the most common form of sexual harassment. Surprisingly some acts of eve teasing would rarely be considered as a form of sexual harassment. As pointed, “Eve teasing in post-colonial India as a cognitive category that refers largely to sexual harassment of women in public spaces, thereby constituting women as eves, temptress who provoke men into sates of sexual titillation.” This reflects the tolerance of the society for such derogatory acts.
However, in Dy. Inspector General of Police v. S. Samuthiram, court held that eve teasing constitutes violation of fundamental rights under Articles 14, 15 and 21 of the Constitution of India. Furthermore, the offense of rape which is the extreme form that sexual harassment is normally understood as non-consensual sexual intercourse. In the Indian Context section 375 Indian Penal Code (as amended by Criminal Law Amendment Act 2013) the defines the offense of rape. According to this section rape is the penetration of Vagina, Mouth, Urethra and anus of a woman by the penis or any other object against her will and consent. The definition of rape also includes any manipulation of the body of the female for the purpose of penetration. In between these two extremes of eve teasing and rape there are many acts which can come under the umbrella term of outraging the modesty of women using force.
2. Article 14
Article 14: Provides for equality before the law and the equal protection of the law. It includes gender equality, which is a universally recognized basic human right.
Right to equality is a Fundamental Right. It can be enforced in High Court under Article 226 and in Supreme Court under Article 32. Fundamental Rights can be enforced only if the state violates it. Right to Equality is considered as basic feature of the Indian Constitution. Right to Equality under Art.14 is vested not only to citizens but to all persons. It includes equality before Law and Equal Protection of Law. No one is above the law of the land. Everyone is equal in the eyes of law. There should be no discrimination. Law must be equal and must be equally administered. So like must be treated alike and unlike. Equality before law is negative concept and Equal protection of law is positive concept. Reasonable Classification is allowed in the administration of justice. But it should have some relation to the object of the legislature.
In every society there are two classes namely upper class and lower class. The standard of living of the upper class is high but that of lower class is low. As a result, it is the duty of the state to uplift the lower class in the society to bring Equality. Absolute equality is impossible but there should not be inequality. Discrimination on the basis of caste, sex, race, religion, language etc must be not there at all. A sense of equality must be there then and then only then will be unity in any state.
3. Article 15
Article 15: Prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
Article 15 acts as an extension of Article 14 which talks about the fact that every person should be equal before law and should be treated equally by the law. But, in the Indian context, it means that equals should be treated equally and unequal unequally. It states that the State shall not discriminate between citizens based on their: religion, race, caste, sex, place of birth or any of them. Furthermore, such discrimination shall not exist with regard to use or access of public places: shops, public restaurants, hotels and places of public entertainment.
These powers have been given to the State so that it can create such provision which can help these sections rise up and become equals to the other sections of the society. It can be said that these provisions are meant for the upliftment of those sections of the society which have been downtrodden/poor state for many years. It enables State to make special provisions for socially and educationally backward classes’/SC/ST in matters relating to admission in private educational institutions, be it aided or unaided. It does not include minority educational institutions.
4. Article 19(1)(g)
Article 19 (1) (g): All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business.
The right covers the right to not to choose a business or right to close a business. The second right comes with certain conditions such payment of workers’ compensation, pension, etc. Citizen’s right to carry on a profession is basic to the life of a man and state imposes no particular restriction on it, except the interest of the general public. Of course, there is no right to carry on a business which is dangerous or immoral. Two conditions have been put on the freedom of citizens to practice any profession-
- The State may prescribe requisite professional or technical qualifications for carrying on any occupation, trade or business.
- The State may exclude, completely or partially, the citizens or other entities from carrying on any trade, business, industry or service, where the State or a corporation owned or controlled by the State is involved.
5. Article 21
Article 21: Enshrines the right to life and personal liberty.
This fundamental right is available to every person, citizens and foreigners alike. Article 21 provides two rights:
- Right to life
- Right to personal liberty
The fundamental right provided by Article 21 is one of the most important rights that the Constitution guarantees. The Supreme Court of India has described this right as the ‘heart of fundamental rights’. The right specifically mentions that no person shall be deprived of life and liberty except as per the procedure established by law. This implies that this right has been provided against the State only. State here includes not just the government, but also, government departments, local bodies, the Legislatures, etc. Any private individual encroaching on these rights of another individual does not amount to a violation of Article 21. The remedy for the victim, in this case, would be under Article 226 or under general law.
The right to life is not just about the right to survive. It also entails being able to live a complete life of dignity and meaning. The chief goal of Article 21 is that when the right to life or liberty of a person is taken away by the State, it should only be according to the prescribed procedure of law.
Conclusion
In our country sexual harassment cases is spreading like a virus and due to this it become important to find a solution to this problem and if it would not happen then the security of women and discrimination happening at workplace weaken the working ratio of women which lead to the destruction in an economy. So, to tackle with this problem after Bhanwari case the Supreme Court laid Vishakha guidelines is the first civil law guidelines which were enforced on the rights of the women to be free from sexual harassment at workplace.
The court highlighted in this case is that the meaning and content of the fundamental rights of the Indian constitution is violated because the women were facing inequality, discrimination and their right to life at workplace and also they cannot come up with all this as there was no specific laws related to that. After the Vishakha guidelines the ray of hope for the women shine and now they have the right to report a case of sexual harassment been done on her at workplace.
References
- http://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of-rajasthan.html
- Case commentary on Vishaka v. state of Rajasthan by abhijit bansal and tarun ghai
- https://indiankanoon.org/doc/1031794/
Questions
- Why Vishaka v. State of Rajasthan is a landmark judgment case in the history of sexual harassment?
- What changes have been brought after the Vishaka’s case?
- What are the guidelines which were laid down by the Supreme Court in this case?
- What are the fundamental rights which were infringed on by the women workers?
- What is the name of the act enacted by the parliament after a few years taking the guidelines into consideration?
[1] Article 14, Constitution Of India, (Right To Equality)
[2] Article 21, Constitution of India, (Right to life)
[3] Article 19 (1)(g) Constitution of India, (Right To Practice Ones Profession)
[4] https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx
