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Vishaka v.

State of Rajasthan Sexual Harassment case (AIR 1997 SC 3011)

Name Abhilash Borana1 Vishaka v. State of Rajasthan


SUBJECT - PREVENTION OF SEXUAL HARASSMENT OF WORKING WOMEN INTRODUCTION
Vishaka v. State of Rajasthan case based on Sexual Harassment, Sexual Harassment means Sexual harassment in the workplace is usually associated with a heterosexual employee making unwelcome sexual advances to another heterosexual employee of the opposite gender. There are also cases where a homosexual employee harasses an employee of the same sex. But can a heterosexual employee sexually harass another heterosexual employee of the same gender2. Sexual harassment in India is termed "Eve teasing" and is described as: unwelcome sexual gesture or behaviour whether directly or indirectly as sexually coloured remarks; physical contact and advances; showing pornography; a demand or request for sexual favours; any other unwelcome physical, verbal/non-verbal conduct being sexual in nature. The critical factor is the unwelcomeness of the behaviour, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator. According to India's constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 of the Constitution of India and her right to life and live with dignity under Article 21 of the Constitution. Although there is no specific law against sexual harassment at workplace in India. As observed by Justice Arjit Pasayat: While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. In this case Supreme Court laid down the following guidelines which recognized it not only as a private injury to an individual woman but also as the violation of her fundamental rights. These guidelines are significant because for the first time sexual harassment is identified as a separate category of legally prohibited behavior. These are subjected to all workplaces until any other legislation is passed by parliament in this regard based on the Vishaka guidelines, the Government of India, together with the civil society has proposed several draft laws between 2005 and 2010. However, the latest draft Protection of Women against the Sexual Harassment at the Workplace Bill, 20103, introduced in the Parliament on December 7, 2010 is entirely a government version; the absence of civil society consultation on this draft is acute.

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Roll no. 50, Sec. A, sem. II http://legal-dictionary.thefreedictionary.com/sexual+harassment 3 http://indialawyers.wordpress.com

Vishaka v. State of Rajasthan Sexual Harassment case (AIR 1997 SC 3011)

FACTS OF THE CASE


The petition filled was with reference to the enforcement of the fundamental right (of the working women) under Articles 14,19 and 21 of the Constitution of India. Bhanwari devi was a social worker at a village level of a social development programmed named Stop child marriages in villages Which was administered by government of Rajasthan. She tried to stop the marriage of Ramkaran Gujjars daughter who was less than one year old. Nevertheless, marriage took place but she was not forgiven for her efforts to stop marriage. She was subjected to social boycott. In September 1992 Ramkaran Gujjar and his friends, gang raped her in front of her husband. The doctor confirmed only her age without making any reference to rape in medical report at Jaipur. The policemen asked Bhanwari to leave her lehenga behind as evidence and return to her village. She was left with only her husbands bloodstained dhoti to wear. The Trial court acquitted the accused. High Court stated that It is a case of gang-rape which was committed out of vengeance. This provoked womens groups and NGOs to file a petition in the Supreme Court of India.

ISSUES OF THE CASE


1. Whether there is a need of implementing guidelines for avoiding sexual harassment of women at workplaces.

ARGUMENTS BY THE COUNSELS


The Counsels in the Supreme Court argued for implementing the sexual harassment prevention guidelines that sexual harassment of women at workplace violates Article 14, 15 and 21 the Constitution of India and violate the constitutional rights of woman. They argued that gender quality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are therefore of great significance in the formulation of the guidelines to achieve this purpose. The obligation of the court under Art. 324 of the Constitution of the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing statement of principles of the independence of the judiciary in the LAWASIA region. There principles of the Independence of the judiciary in the LAWASIA region. There principles were accepted by the Chief Justices of the Asia and the pacific at Beijing in 1995 as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary. The objectives of the judiciary mentioned in the Beijing statement are: The objectives and functions of the judiciary include following: (a) To ensure that all persons are able to live securely under the Rule of Law;

http://www.indiankanoon.org/doc/237570/

Vishaka v. State of Rajasthan Sexual Harassment case (AIR 1997 SC 3011)


(b) To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) To administer the law impartially among persons and between persons and the state. Some provisions in the Convention on the Elimination of All Forms of Discrimination against Women, of significance in the present context are: Article 115: 1. State parties shall take all appropriate measures to eliminate discrimination against woman in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproductions.

Judgment
The judgment was delivered by Chief Justice J.S.Verma, on behalf of Justice Sujata Manohar and Justice B.N.Kirpal, on a writ petition which was filed by 'Vishaka. The court observed that it is fundamental right of working woman under article 146, 197(1) (g), and 218 of the constitution to carry on any occupation, trade or profession but it should be ensured that trader should provide a safe working environment at work place. It was of the view that the fundamental right to carry on any occupation, trade or profession depends on the availability of a safe working environment. The right to life means life with dignity. The Supreme Court referred to various international human right 9 instruments, including CEDAW10 and observed that every woman has a fundamental right to freedom from Sexual Harassment. Supreme Court has laid down guidelines to be followed by employees to prevent sexual harassment of women employees. The guidelines are mandatory +till they are replaced by legislation. This is implicit from Article 5111 and the enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Article 25312 read with entry 14 of the union list in Seventh of the Constitution. Court ruled out that at every workplace there should be a sexual code and there should be a proper mechanism to enforce cases which fall under the ambit of this sexual harassment code. The main objective of this aim is to facilitate the gender equality and to prevent discrimination for women at the

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http://www.indiankanoon.org/doc/237570/ Article 14(the right to equality) 7 Article 19 (I)(g) (the right to practice ones profession) 8 Article 21(the right to life) 9 Nhrc.nic.in/hract.htm 10 Convention on the Elimination of All forms of Discrimination Against Woman. 11 http://www.indiankanoon.org/doc/237570/ 12 http://www.indiankanoon.org/doc/237570/

Vishaka v. State of Rajasthan Sexual Harassment case (AIR 1997 SC 3011)


workplace. The Supreme Court in absence of any enacted law was called upon to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassment. Supreme Court made the definition of sexually determined behavior in a wider sense by including any kind of acts which include physical contact, demand for sexual favors, sexually remarks, showing pornography, verbal or non verbal conduct of a sexual nature with women. The Supreme Court stated that the guidelines for the sexual code at every workplace are to be treated as a declaration of law in accordance with Article 14113 of the constitution. And these rights should not be based on prejudices any right available under the protection of Human Right Act 1993. The guidelines and norms specified by the Supreme Court include the duty of employer in work place and other institutions, preventive steps to be taken in this regard, criminal proceedings, disciplinary action, complaints mechanism and complaints committee, to encourage workers initiative, creating awareness and against third party harassment etc.

Critical Analysis
The Supreme Court referred to the definition of Sexual harassment suggest in Vishaka vs. State of Rajasthan14. Supreme Court give Sexual Harassment definition15 shows that sexual harassment of a form of sex discrimination projected through unwelcome favors and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her. That sexual harassment of a female at the place of work is incompatible with the dignity and honors of a female and needs to be eliminated and that there can be no compromise with such violation admits of no debate. The supreme court guideline set out that persons in charge of a workplace in the public or private sector would be responsible for taking the appropriate steps to prevent sexual harassment by taking the appropriate steps including :The prohibition of sexual harassment should be published in the appropriate ways and providing the appropriate penalties against the offender, for private employees, the guidelines should be included in the relevant employment guidelines, where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person-in-change will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action. Vishaka v. State of Rajasthan a case presided over by Justice Bhagwati, Chief Justice of India, whose quote begins this section. Vishaka involved the alleged rape of a woman by state employees and the failure of officials to investigate the complaint. A group of activists brought a public interest litigation action and requested the Supreme Court to frame guidelines for the prevention of sexual harassment and violence against women based on CEDAW. Although CEDAW does not have any specific provision on
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Article 141 of the constitution. (Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India) 14 AIR 1997 SCC 3011 at 3014 15 www.indianknoon.org/doc/1031794/ para16 point2

Vishaka v. State of Rajasthan Sexual Harassment case (AIR 1997 SC 3011)


violence, the UN Committee on the Elimination of Discrimination Against women had interpreted discrimination as including all forms of violence against women16. Reading CEDAW together with the Committees recommendation, the court held: In the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of the interpretation of the guarantee of gender equality, the right to work with human dignity in articles 14, 15, 19(1) (g) and 21 of the Constitution of India17 and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is the most direct impact of CEDAW and evidence that international human rights discourse and feminist perspectives can play an effective and critical role, not just in informing reformers, but actually influencing the law. The integration of international human rights norms into domestic law is an important goal, which hopefully will slowly be realized.18

The Protection of Women against Sexual Harassment at Work Place Bill, 2010
Finally approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in Parliament. The bill seeks to ensure protection of women against sexual harassment at the workplace, both in public and private sectors whether organised or unorganized. The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an Internal Complaints Committee at the work place and a Local Complaints Committee at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act. In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the work place. The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers. A draft Bill was circulated by the Ministry of Women and Child Development for public feedback in 2007. The current Bill establishes a framework to be followed by all employers to address the issue of sexual harassment.
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UN committee on the Elimination of Discrimination Against Woman, 11 Session, UN Doc CEDAW/C/1992/L.1/Add.15 (1992), General Recommendation NO 19. 17 ibid 18 The term domestic violence is used in Malaysia and finally violence in Singapore and they are treated interchangeably in this article.

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Vishaka v. State of Rajasthan Sexual Harassment case (AIR 1997 SC 3011)

Highlights of the Bill The Bill defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.

Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level. The Complaints Committees have the powers of civil courts for gathering evidence. The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant. Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

Key Issues and Analysis There could be feasibility issues in establishing an Internal Complaints Committee at every branch or office with 10 or more employees.

The Internal Complaints Committee has been given the powers of a civil court. However, it does not require members with a legal background nor are there any provisions for legal training. The Bill provides for action against the complainant in case of a false or malicious complaint. This could deter victims from filing complaints. Two different bodies are called Local Complaints Committee. The Bill does not clearly demarcate the jurisdiction, composition and functions of these Committees. Cases of sexual harassment of domestic workers have been specifically excluded from the purview of the Bill. Unlike sexual harassment legislation in many other countries, this Bill does not provide protection to men.

Sexual Harassment: Case laws in India



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Apparel Export Promotion Council v. A.K Chopra19 Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill20 State of Punjab Vs. Gurmit Singh21

1997 IVAD Delhi 646, 68 (1997) DLT 303, 1997 (42) DRJ 526 1996 AIR 309, 1995 SCC (6) 194

Vishaka v. State of Rajasthan Sexual Harassment case (AIR 1997 SC 3011)


State of Maharashtra Vs. Madhukar N. Mardikar22 Railway Board Vs. Chandrima Das23 Mohd.Habib Vs State24

Law
Constitution of Indian
Article 14 (the right to equality). Article 15 (the right to non discrimination). Article 19(I) (g) (the right to practice ones profession). Article 21 (the right to life).

Convention on the Elimination of All Forms of Discrimination against Woman (CEDAW) Article 11 ([state] takes all appropriate measures to eliminate discrimination against woman in the field of employment. Article 24 ([sate shall] undertake to adopt all necessary measures at the national level aimed at achieving the full realization.

CONCLUSION
Sexual harassment at workplace is highly prevalent in India and there is a need to provide a positive environment to the women workers. Government should make separate laws dealing with this issue. It should also realize that women worker also constitute a part of working population in India and its the duty of the government to provide them security at work. New strategies should be made by the employers and managers to protect the organisation from this evil. Government and employers should ensure that women should be treated equally and gender discrimination should not take place at the workplace. Effective implementation of the policies can reduce the manifestation and mutilation of the sexual harassment to the minimum. One organisation can alter its approach to handle sexual harassment by viewing other organisations tactic. This will reduce or eliminate glitches caused by this harmful transgression. Government should understand that separate laws may not bring about equality in gender relations but a law dealing with sexual harassment would provide women immense support in their struggle. By focusing on the implementation of the Vishaka guidelines across sectors, examining the issue comprehensively through its components of redressal, prevention and protection, and drawing from experiences and perspectives shared at the Consultation, the organizers facilitated the process of identifying problems to fill gaps that need to be addressed by any law combating sexual harassment at the workplace.

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(1996) 2 SCC 384 (1991) 1 SCC 57 23 AIR, 2000 SC 988 24 1989 Cr.LJ 137 Delhi