VISHAKA & ORS. V. STATE OF RAJASTHAN & ORS. ( AIR 1997 SC 3011)

VISHAKA V. STATE OF RAJASTHAN IS A LANDMARK JUDGMENT PRONOUNCED IN 1997 BY THE SUPREME COURT OF INDIA. THIS CASE LED TO THE ENACTMENT OF CERTAIN GUIDELINES TO DEAL WITH CASES OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACES.

BHANWARI DEVI, A SOCIAL WORKER FROM RAJASTHAN, WAS BRUTALLY GANG-RAPED BY SIX GUJJAR MEN FOR STOPPING CHILD MARRIAGE.

FACTS
– DETERMINED TO GET JUSTICE, BHANWARI DEVI FILED A COMPLAINT AGAINST THE OFFENDERS.
– HOWEVER, THEY WERE ACQUITTED BY THE TRIAL COURT.
– ENRAGED BY THIS, SEVERAL WOMEN’S GROUPS AND NGOS CAME OUT TO SUPPORT BHANWARI DEVI AND FILED A WRIT PETITION IN THE SUPREME COURT TO FIGHT AGAINST INJUSTICE.
– THE WRIT WAS FILED FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS OF WORKING WOMEN GUARANTEED UNDER ARTICLE 14, ARTICLE 19, AND ARTICLE 21 OF THE CONSTITUTION OF INDIA.

JUDGMENT
THE COURT OBSERVED THAT AS PER ARTICLE 14(2), 19(1)(G) AND 21(4), EVERY PROFESSION, TRADE, OR OCCUPATION SHOULD PROVIDE A SAFE WORKING ENVIRONMENT TO ALL THE EMPLOYEES. A SAFE WORKING ENVIRONMENT IS A BASIC REQUIREMENT, UNAVAILABILITY OF WHICH VIOLATES THE RIGHT TO LIVE A DIGNIFIED LIFE GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA.

THE SUPREME COURT IN ITS JUDGMENT DEFINED SEXUAL HARASSMENT AS AN UNWANTED OR UNINVITED ACTION INCLUDING:
• PHYSICAL TOUCH OR CONDUCT; OR
• SHOWING OF PORNOGRAPHY; OR
• USE OF SEXUALLY DEROGATORY WORDS; OR
• ASKING FOR SEXUAL FAVOURS; OR
• ANY OTHER UNPLEASANT VERBAL OR NON-VERBAL CONDUCT OF SEXUAL NATURE.

FURTHER, THE SUPREME COURT HELD THAT SINCE THERE ARE NO LAWS PERTAINING TO SEXUAL HARASSMENT IN INDIA, CONSIDERATION MUST BE PAID TO THE INTERNATIONAL CONVENTIONS AND THEREFORE, THE COURT ISSUED CERTAIN GUIDELINES TO BE FOLLOWED BY THE EMPLOYERS OR ANY OTHER RESPONSIBLE PERSON IN THE WORKPLACE TO ENSURE GENDER EQUALITY AND SAFETY OF WOMEN AT WORKPLACES. SUCH GUIDELINES WERE TO BE TREATED AS LAW DECLARED UNDER ARTICLE 141 OF THE CONSTITUTION.

THE FOLLOWING GUIDELINES ARE MEANT TO BE FOLLOWED UNTIL NEW LEGISLATION IS ENACTED FOR THE SAME:
1. THE EMPLOYER SHOULD TAKE PREVENTIVE STEPS BY NOTIFYING THE DEFINITION OF SEXUAL HARASSMENT AT THE WORKPLACE.
2. SUCH RULES AND REGULATIONS SHOULD BE INCLUDED WHICH PROHIBIT SEXUAL HARASSMENT AND IMPOSE PENALTIES AGAINST THE OFFENDERS.
3. STEPS SHOULD BE UNDERTAKEN TO PROVIDE A SAFE WORKING ENVIRONMENT WITH PROPER HEALTH AND HYGIENE FACILITIES.
4. IN THE CASE OF SEXUAL HARASSMENT, THE EMPLOYER SHOULD INITIATE APPROPRIATE ACTIONS AGAINST THE OFFENDER BY FILING A COMPLAINT WITH THE COMPETENT AUTHORITY.
5. STEPS SHOULD BE TAKEN TO ENSURE THAT THE OFFENDER DOES NOT VICTIMIZE THE WITNESSES AND THE VICTIM ITSELF.
6. A PROPER COMPLAINT COMMITTEE SHALL BE ESTABLISHED IN EVERY EMPLOYER’S ORGANIZATIONS WHICH SHOULD REDRESS THE COMPLAINTS MADE BY THE VICTIMS WITHIN A REASONABLE TIME.

7. THE COMMITTEE SHALL BE HEADED BY A WOMAN WITH HALF OF ITS MEMBERS AS WOMEN.
8. THE COMMITTEE SHALL ENSURE THE REDRESSAL OF THE COMPLAINT WHILE THE CONFIDENTIALITY IS MAINTAINED.
9. THE COMMITTEE SHALL ALSO INCLUDE A THIRD PARTY, EITHER AN NGO OR ANY OTHER BODY TO PREVENT ANY INFLUENCE OR PRESSURE ON THE VICTIM FROM THE SENIORS OF THE ORGANIZATION.

THEN THE HON’BLE COURT TOOK REFERENCE FROM THE PROVISIONS OF CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW) THEY WERE- ARTICLE 11 (1) (A) & (F)- WHICH STATES THAT THE STATE TAKES ALL APPROPRIATE MEASURES TO ELIMINATE DISCRIMINATION AGAINST WOMEN IN THE FIELD OF EMPLOYMENT. ARTICLE 24- WHICH STATES THAT THE STATE SHALL UNDERTAKE TO ADOPT ALL NECESSARY MEASURES AT THE NATIONAL LEVEL AIMED AT ACHIEVING THE FULL REALIZATION. THE HON’BLE SUPREME COURT FRAMED THE GUIDELINES TO PREVENT SEXUAL HARASSMENT AT THE WORKPLACE, KNOWN AS VISHAKA GUIDELINES, THAT WERE TO BE TREATED AS LAW DECLARED UNDER ARTICLE 141 OF THE INDIAN CONSTITUTION. THESE GUIDELINES WERE THE FOUNDATION FOR THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013.

THE VISHAKA GUIDELINES (1997)

EMPLOYER’S OR OTHER EQUIVALENT AUTHORITY’S DUTY– EMPLOYER OR OTHER RESPONSIBLE PERSONS ARE BOUND TO PRECLUDE SUCH INDECENT INCIDENTS OF SEXUAL HARASSMENT FROM HAPPENING. IN CASE SUCH AN ACT TAKES PLACE, THEN THE ORGANIZATION MUST CONSIST OF A MECHANISM TO PROVIDE PROSECUTORIAL AND CONCILIATORY REMEDIES.

DEFINITION – FOR THIS PURPOSE “SEXUAL HARASSMENT” MEANS DISAGREEABLE SEXUALLY DETERMINED BEHAVIOR DIRECT OR INDIRECT
AS-

A. PHYSICAL CONTACT AND ADVANCES;
B. A DEMAND OR REQUEST FOR SEXUAL FAVOURS;
C. SEXUALLY COLOURED REMARKS;
D. SHOWING PORNOGRAPHY;
E. ANY OTHER UNWELCOME PHYSICAL, VERBAL OR NON-VERBAL CONDUCT OF SEXUAL NATURE.

MEASURES FOR PREVENTION– EMPLOYERS OR PERSONS IN CHARGE OF THE WORKPLACE MUST TAKE PREVENTIVE MEASURES SUCH AS AN EXPRESS PROHIBITION OF SEXUAL HARASSMENT IN THE FORM OF NOTIFICATIONS OR CIRCULARS, PENALTIES BY THE GOVERNMENT AGAINST THE OFFENDER, APPROPRIATE WORK CONDITIONS IN RESPECT OF HYGIENE, HEALTH AND LEISURE.

PROCEEDINGS IN CASE OF MISCONDUCT– IF THE OFFENSES COMMITTED ARE THE ONES THAT FALL UNDER THE PURVIEW OF THE INDIAN PENAL CODE, 1860, THEN THE EMPLOYER IS BOUND TO TAKE PROSECUTORIAL ACTION BY COMPLAINING TO THE APPROPRIATE AUTHORITY.

APPROPRIATE DISCIPLINARY ACTION– IF THERE IS AN OCCURRENCE OF THE VIOLATION OF SERVICE RULES, APPROPRIATE DISCIPLINARY ACTION MUST BE TAKEN.

REDRESSAL MECHANISM– AN ORGANIZATION MUST HAVE A REDRESSAL MECHANISM TO ADDRESS THE COMPLAINTS. THIS MUST BE IRRESPECTIVE OF THE FACT THAT WHETHER THE ACT CONSTITUTES AN OFFENSE UNDER THE INDIAN PENAL CODE, 1860, OR ANY OTHER LAW AS SUCH.

REDRESSAL COMMITTEE– SUCH A REDRESSAL MECHANISM OR MORE PRECISELY SUCH A COMPLAINT COMMITTEE MUST HAVE WOMEN AS MORE THAN HALF OF ITS MEMBERS AND ITS HEAD MUST BE A WOMAN. THE COMMITTEE MUST COMPRISE OF A COUNSELING FACILITY. IT IS ALSO ACCEPTABLE TO COLLABORATE WITH NGOS OR ANY SUCH ORGANISATIONS WHICH ARE WELL AWARE OF SUCH ISSUES. A REPORT MUST BE SENT TO THE GOVERNMENT ANNUALLY ON THE DEVELOPMENT OF THE ISSUES BEING
DEALT BY THE COMMITTEE.

SPREADING AWARENESS– TO RAISE SEXUAL HARASSMENT ISSUES, EMPLOYER-EMPLOYEE MEETINGS MUST BE HELD. THE EMPLOYER MUST TAKE APPROPRIATE ACTIONS/MEASURES TO SPREAD AWARENESS ON THE SAID ISSUE.

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