Overview of Vishaka and others V. State of Rajasthan and others

Overview of Vishaka and others V. State of Rajasthan and others[1].

INTRODUCTION

Vishaka v. the State of Rajasthan is considered to be one of the most important landmark judgement of the honourable Supreme Court (hereinafter referred as SC) which deals with the evil of sexual harassment of women at workplace. Sexual harassment is nothing but the sexual favours from one gender to the other which is unwelcome and uninvited one. In India “Eve Teasing” is the second term which is used for the sexual harassment which can be determined by various acts. In many cases the sexual harassment is not limited to the opposite gender but also the homosexual labours have to face the sexual harassment at their workplaces. The sexual harassment of women at their workplace is nothing but the violation of the fundamental right of the women of gender equality which is given under Article 14 of the Constitution of India, 1950. And, also violates article 21 of the Constitution of India, 1950 which talks about right to life with dignity.

FACT OF THE CASE.

The background of the case was that a woman named Bhanwari Devi was employed as a village-level social worker for the Women Development Project (WDP) and was badly raped in 1992.

HER JOB WAS to prevent the families from child marriages

  • In one particle case, Bhanwari Devi tried to stop the child marriage of one-year-old infant belonging to the family from the Gurjar community and reported the same to the police station.
  1. So to take revenge for the same act done by Devi, the family had rebelled against her but to also ostracise her from the community, around five men of the Gurjar community while she was at her workplace
  2. After that, she filed a complaint against the accused but due to the absence of sufficient evidence court released the accused in the trial court.
  3. After that many social organisation, NGO’s, and women activist raised the voice for justice to Bhanwari Devi. And filed Public Interest Litigation (PIL) to stop the sexual harassment of women at workplace.

 

PROCEDURAL STEPS

A writ of mandamus was filed in the Supreme Court as ‘a class action’ in the form of Public Interest Litigation as per the article 32(2) of the Constitution of India, 1950.[2]

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ISSUES RAISED

The issue was raised whether the employer has any responsibility in cases of sexual harassment by its employee or to its employees at a workplace?

The urgency for safeguards of gender equality and women rights at the workplace by preventing sexual harassment of working women in all workplaces by an alternative mechanism in the absence of legislative measures is the major issue raised.

 

PARTIES’ ARGUMENT AND SUPPORTING PROVISIONS.

The judgement does not provide separate arguments made by both the parties but there are some arguments which had to consider while delivering the judgement.

Plaintiffs argued to fill the existing vacuum in law created due to lack of legislative measures by promoting gender equality in the workplace and preventing sexual harassment of working women. To support this, the case Nilabati Behera v. State of Orissa[3] was cited.

The international conventions and norms are to be read but not inconsistent with the fundamental rights but in harmony with its spirit, in the absence of enacted domestic law occupying the field. To support this, the case Minister for Immigration and Ethnic Affairs V. Teoh[4] was cited.

Also for promoting gender equality and to prevent the sexual harassment the Article 14, 15, 19(1)(g) and, 21 of Constitution of India, 1950 was cited.

 

APPLICATION OF HUMAN RIGHTS PROVISIONS

  1. Article 14 of Constitution of India, 1950: Right to Equality.
  2. Article 14 of Constitution of India, 1950: No Discrimination on the ground of gender.
  3. Article 19(1)(g) of Constitution of India, 1950: each citizen of India has the right to practice his own profession
  4. Article 21 of Constitution of India, 1950: Right to Life and that with dignity.

 

The application of CEDAW (Convention on the Elimination of All Forms of Discrimination against Women)

  1. Article 11 of CEDAW: it says that the state shall take all the precautionary measures to prevent the sexual harassment of the women at their workplace.
  2. Article 24 of CEDAW: STATE SHALL TAKE AND adopt all necessary measures at the national level aimed at achieving the full realization

 

JUDGEMENT

The Vishaka judgement was propounded by chief justice J.S.Verma as representative of both Justice Sujata Manohar and Justice B.N.Kriplani for the petition filed by the Vishaka NGO. While delivering judgement the apex court highlighted the Article 14[2], 19[3](1)(g) and 21[4]of Constitution of India, 1950 and said that “every profession, trade or occupation should provide a safe working environment to the employees”.

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Each and every woman possessing her own profession has the right to have a safe environment at her workplace. For that same court said that, whenever, instances of sexual harassment resulting in violations of Arts 14, 19 and 21 are brought under Art 32, effective redress requires that some guidelines for the protection of these rights should be laid down to fill the legislative vacuum.

This guideline will act as a law of land under Article 141 of the constitution of India, 1950 unless and until legislation passes any laws related to it.

This guideline put the restriction and the responsibilities towards the employer to set and apply the appropriate settlement for the resolution of the unwelcome act of sexual harassment.

These guidelines were known as Vishaka guidelines.

 

REASONING OF JUDGEMENT

The judge did not expressly provide the ratio decidendi, but on the following ground the apex court has provided the judgement:

Taking into consideration both the civil and the penal laws in India, but none of them adequately provides any specific protection or any provision that could help to prevent sexual harassment at the workplace.

There is an increase in the effort to guard against such violations and the resentment towards incidents of sexual harassment is also increasing.

THE VISHAKHA GUIDELINES

The guidelines laid down by the court, in this case, was law of the land until any law is being passed by the legislation. These guidelines are as follow:

  1. Sexual harassment includes all that unwelcome act of sexual favour, physical sexual contact, verbal or nonverbal conduct of sexual nature, or the pornographic content.
  2. Sexual Harassment at the workplace should be always –informed, produced & circulated
  3. The employer should take action for any unwelcome move of sexual harassment with the help of a proper authority.
  4. An appropriate mechanism has to set up for the prevention of such acts at the workplace.

 

SEXUAL HARASSMENT AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL ) ACT, 2013

It took the government seventeen years to pass the law against harassment within the geographic point earlier this year, within the wake of the Delhi gang-rape last Dec, once the Supreme Court had in 1997 set down the Vishaka Guidelines on the matter.

The Act includes several provisions of the Vishaka Guidelines, that 1st required the formulation of “a code of conduct for the workplace”. Building on the Vishaka Guidelines, the Act imply the formation of an internal complaints committee and an area complaints committee at the district level.

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The harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 seeks to guard women against harassment at their place of labour in an exceedingly abundant wider sense.

The Bill was 1st introduced by Women and Child Development Minister Krishna Tirath in 2007 and approved by the cupboard Union in Jan 2010. it had been tabled within the Lok Sabha in Dec 2010 and observed the Parliamentary Commission on Human Resources Development. The committee’s report was printed in November 2011.

In 2012, the cabinet Union approved a change to include domestic employees. The amended Bill finally elapsed the Lok Sabha in September 2012. Bill elapsed in Rajya Sabha in February 2013. It received the assent of the President of India on April 2013 and finally came into force in December 2013.

 

CONCLUSION

I would definitely like say that the judicial activism in India by providing the judgement on Vishaka case tried to protect both the genders. Till 1997 even after the independence of 50 years, there was no law which will help the women to stop them from being sexually harassed at their workplace. In India, it is a reality that even if the women being sexually exploited she doesn’t register a complaint due to lack of family support and the lack of legal remedies available for them. But due to the enactment of Sexual Harassment at Workplace (Prevention, Prohibition And Redressal ) Act, 2013 now it becomes easier for the working women to get a legal remedy against exploitation.

 

 

references:-

[1] Vishaka and others V. State of Rajasthan and others[1]. (AIR 1997 SUPREME COURT 3011)

[2] The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

[3] Nilabati Behera v. the State of Orissa (1993) 2 SCC 746: (1993 AIR SCW 2366)

[4] Minister for Immigration and Ethnic Affairs V. Teoh, 128 ALR 353

Author: Amey Jadhav,
Maharashtra National Law University, Aurangabad/ 1ST year

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