|Name of the Case||Vishaka v. the State of Rajasthan[i]|
|Citation||(1997)6 SCC 241|
|Year of the Case||1997|
|Appellant||Vishaka & Ors.|
|Respondent||State of Rajasthan & Ors.|
|Bench/Judges||CJI, Sujata V. Manhor, B. N. Kirpal|
|Acts Involved||Convention on the elimination of all forms of discrimination against women(CEDAW)|
|Important Sections||Article 14, 15, 19(1)(g) of the Indian constitution, Article 11, 24 of the CEDAW|
Today women are self- dependent and raise their voice against sexual-harassment, inequality and biasness at the workplace. Sexual harassment at the workplace is one of the pivotal subjects on the women’s movement for a long time. It is a vital fact that women’s safety and security is most important for the whole country, even for the entire world. But this fact was shattered after the brutal incident known as Vishaka case. In this particular case, the Supreme Court laid down various guidelines for women regarding sexual harassment at the workplace. Supreme Court observed that these types of incidents are a curse on society and to curb these incidents is a necessity. Vishaka judgment is one of the most incredible pieces of law the court has ever enacted in the whole history. Even in the absence of domestic law court did not take its steps back, the court adopted the international law on the subject matter (CEDAW). According to article 253 with entry 14 in the union list of the seventh schedule of the Indian constitution, the court is competent to take this action.
Vishaka & Ors v. the State of Rajasthan is a case which deals with a brutal incident of the sexual harassment with a woman at her workplace. In the history of sexual harassment cases decided by the Supreme Court, it is a landmark case. Sexual harassment means the unwelcome sexual gestures, sexual favors from one gender towards another. It makes the person insulted, humiliated, offended, and also the confidence of the person also decreases to whom it has been done.
The following acts can also determine sexual harassment: Sexual jokes, inappropriate touching, asking a favor for sex, pictures, emails, texts regarding sexually blunt, discredit person because of sex. Legally, sexual harassment violates the fundamental rights of the women; violates article 14, which commenced the gender equality. Also violates the right of life and liberty, right to live with dignity, which is mentioned in Article 21 of the Indian constitution.
But, in the Indian constitution, there is no appropriate provision available related to sexual harassment. In 1997 the Supreme Court for the first time in the history gives the guidelines related to sexual harassment at the workplace for women which are now known as Vishaka guidelines. It takes 17 years to enact a particular legislature on sexual harassment. In 2007 the bill was introduced, and it came into force in December 2013. The name of the act is “The Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act, 2013”.
Facts of the Case
A woman named as Bhanwari Devi was working as a village-level social worker under the women’s development project (WDP) started by the government of Rajasthan. She had to work directly with the families to prevent the marriages, along with this; she also reports cases to the police when the urgency was required. All these things are the part of her job. In a particular case, a family which belongs to the Gujjar community arranged the marriage of a one-year-old infant; she reported this incident in the police. The particular family rebelled against her and they boycotted her from the community. Five men of the Gujjar community went at her workplace and brutally raped her in 1992.
Police favored the five men who raped her and showed very rude or negative behavior towards Bhanwari, and also the doctors did not support her. She was determined on to fight for justice, so she complained against the all the five accused.
But unfortunately, due to the absence of sufficient evidence, the trial court acquitted the accused. Many social organizations and women activists came forward to help the Bhanwari and raise their voice for her help. A women’s right activist filed a PIL (public interest litigation) for the need to protect and save women from sexual harassment at the workplace.
The issue raised in front of the Supreme Court was to inspect the case which highlighted the problems of gender inequality, modesty and outraging of women, sexual harassment at the workplace and rape.
The Supreme Court refers to the following provisions:
Provisions related to Indian constitution:
- Article 14: Article 14 gives the right to equality. Every person has equal rights irrespective of the fact that the person’s gender, sex, religion, race, caste.
- Article 15: It prevents the discrimination on the grounds of gender, sex, race, religion, caste or place of birth.
- Article 19(1) (g): This article gives the right to practice any profession or to carry on any trade, occupation or business.
- Article 21: It provides the right to life for everyone. People have a right to live with dignity.
Provisions related to CEDAW
- 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.
- General recommendation No. 19: It is recommended for the elimination of violence against women.
Sexual harassment at the workplace is a violation of gender equality which is enriched under fundamental rights of article 14, 15, 19 and 21. Article 19(1) (g) gives freedom to every citizen of the country, but such type of acts violates it. The protection of women has become a primary minimum in the nation. Due to the absence of domestic law to control the evil, assistance could be manifest from the international conventions. Still, it must ensure that the statutes do not contradict with any domestic law and also do not violate the spirit of the constitution of India.
The judiciary derived this authority from article 51(c) and 253 with entry 14 of the union list of the seventh schedule of the constitution. The court held that such violations are attracted to the remedy under article 32.
The court referred the convention on the elimination of all forms of discrimination against women (CEDAW) which prevent the discrimination in the workplace. Therefore, the court highlights some specific guidelines which would act as the law of the land:
- Convention on the elimination of all forms of discrimination against women (CEDAW). (Article 11 and 24)
- General recommendation no. 19
In the case, as mentioned above, the court gives a set of guidelines for employers as well as for the other responsible persons or organizations or institutions- to immediately ensure the prohibition of sexual harassment.
Further, court said that following these guidelines was considered law until concerned legislation was created:
- Sexual harassment includes unwelcome sexually determined behavior as physical, sexual contact, sexual remarks, sexual favor, pornographic content and also verbal or non-verbal content of sexual nature.
- At the workplace, sexual harassment must always be: informed, produced and circulated.
- If anytime a sexual harassment incident happened, which amounts to a specific offence under the law, then the employer (victim) should take action by complaining about the event to the concerned authority.
- In every organization or institution, there should be a proper mechanism or committee for prevention should be formed for indemnity of the complaint.
- The institution should provide the victim with all type of protection while dealing with complaints.
- The complaint committee must be lead or headed by a woman, and the half members of the committee must be women. The annual report made by the committee should be submitted to the government, highlight the regarding issues in the organization.
This case Vishaka v. State of Rajasthan was called upon for the enforcement of the fundamental rights which are mentioned in article 14, 15, 19 and 21 of the Indian constitution. Since 1991 women were employed more as compared to previous era. But the evil side of this employment is that this increased the incidents of sexual harassment and various other related offences.
At that time, there was no legislation or any particular law to prohibit and punish the accused for such offence. Therefore, due to the lack of domestic law, the majority of the cases went unreported and also unpunished. Only because of the absence of law, there were violations of rights and dignity of the victim and victim had no remedy or solution.
Various NGOs and social workers raised their voice, and finally, apex court formulated the guidelines to prevent the violence against women. These guidelines are laid down in Vishaka v. State of Rajasthan, and these guidelines are known as Vishaka Guidelines.
In this particular case, the court ruled that there was a violation of gender equality, and it is the violation of the right to life and liberty which is mentioned under article 21 of the Indian constitution. Along with article 21, there was also a violation of article 14 and 15 observed by the court. Further, the court read the article 51 (c) along with the article 253 and entry 14 of the union list which is mentioned in the seventh schedule of the Indian constitution. In the lack of relevant statutes of the domestic law, the court can use the laws from international treaties and conventions to resolve the problem.
Therefore, the court mentioned the following guidelines, which are considered as the law of the land until the appropriate legislation is enacted:
- Convention on the elimination of all forms of discrimination against women (CEDAW) ( article 11 and 24)
- General recommendations of CEDAW
Thus, the court ruled that gender equality and the right to work with dignity violates whenever there is any offence of sexual harassment.
[i] AIR 1997 SC 3011