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Vishaka v/s State Of Rajasthan (1997): A Pioneering Case In Addressing Workplace Sexual Harassment In India

In India's growing economy, the problem of sexual harassment in the workplace has become increasingly prevalent as more women enter the workforce. This issue is pervasive, affecting sectors like the police, army, business process outsourcing, multinational corporations, professional sports, etc. A landmark Supreme Court decision, Vishaka v. State of Rajasthan, played a significant role in bringing the problem to public attention. Following this judgment, there have been attempts to establish concrete laws addressing sexual harassment.

In the context of addressing sexual harassment, the Vishaka v. State of Rajasthan case stands out as an extraordinary moment of judicial activism. The Supreme Court's decision in this case was remarkable for a few key reasons. Firstly, the Court took into account and heavily relied on international treaties, even though these treaties had not been formally incorporated into Indian law.

Secondly, it provided the very first authoritative definition of 'sexual harassment' in India, which became a critical reference point for understanding and addressing the issue. Thirdly, in the absence of specific legislation on this matter, the Supreme Court demonstrated creativity by suggesting a form of 'judicial legislation' to establish necessary legal principles and guidelines. This played a crucial role in addressing sexual harassment in the Indian workplace.

Fact Of The Case
The Vishaka case began with a tragic incident involving a social worker named Bhanwari Devi in Rajasthan. Bhanwari Devi worked as a grassroots activist in the Women's Development Project (WDP) under the Rajasthan government.

In 1992, the government initiated a campaign against child marriage, and WDP workers like Bhanwari Devi tried to persuade villagers to abandon this deeply rooted practice in the region.

Bhanwari Devi made a valiant effort to prevent the marriage of a one-year-old girl, but her efforts were met with resistance and hostility from the villagers, who harassed, threatened, and socially ostracized her.

In September 1992, this hostility escalated to a horrifying act when five villagers brutally raped Bhanwari Devi in the presence of her husband.

She sought justice for this heinous crime but faced numerous obstacles from the police authorities.

Shockingly, the trial court in Rajasthan acquitted the five accused, further deepening the sense of injustice.

This egregious incident prompted a collective effort by five non-governmental organisations (NGOs) operating under the name 'Vishaka.' They filed a Public Interest Litigation (PIL) in the Supreme Court, seeking comprehensive guidelines and directions on how to prevent sexual harassment of women in the workplace through the judicial process.

The Vishaka case, thus, emerged as a response to the grave injustice suffered by Bhanwari Devi and the need to address workplace sexual harassment more effectively through legal means.

Issues Raised:
  • Whether sexual harassment at the Workplace amounts to a violation of the Rights of Gender Equality and the Right to Life and Liberty?
  • Whether the court could apply international laws in the absence of applicable measures under the existing?
  • Whether the employer has any responsibility when sexual harassment is done to/by its employees?

Judgement
In the Vishaka case, the court adopted a more purposeful interpretation of fundamental rights. It stated that any international convention, as long as it aligns with fundamental rights and their spirit, should be considered when interpreting those rights, broadening their meaning and enhancing the constitutional guarantees' objectives.

Since there were no specific laws in India addressing workplace sexual harassment, the court turned to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which India signed in 1980. The court used CEDAW to interpret relevant articles of the Constitution, such as Articles 14, 15, 19, and 21.

To support its decision, the court referenced various sources, including the Beijing Statement of Principles of the Independence of the Judiciary, a judgment from the High Court of Australia, and its own previous rulings. After Vishaka, the Supreme Court increasingly relied on multilateral treaties, especially those constituting the International Bill of Rights, due to legislative inaction in contemporary areas. Since all decisions of the Supreme Court are treated as law under Article 141, the guidelines established in Vishaka effectively filled a legislative void in addressing workplace sexual harassment.

The Vishaka Guidelines (1997)
The Supreme Court of India issued a set of comprehensive guidelines, drawing inspiration from the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to protect women from sexual harassment in the workplace. These guidelines were intended to be strictly enforced in all workplaces, irrespective of whether they were in the private or public sector, and they carried the force of law until appropriate legislation was enacted on the matter.
The key provisions of these guidelines included :

Employers and those in positions of responsibility in a workplace had a duty to prevent and discourage sexual harassment, and they were required to establish mechanisms for addressing and resolving such cases.

For the first time in India, a clear and authoritative definition of 'sexual harassment' was provided by the Supreme Court. It encompassed various unwelcome behaviours of a sexual nature, including physical contact, demands for sexual favours, sexually explicit remarks, displaying pornography, and any other unwanted sexual conduct.

Employers or workplace authorities were obligated to prevent sexual harassment, and if an act constituted a legal offence under the Indian Penal Code or any other law, they were to take appropriate action against the wrongdoer.

Even if the act did not amount to a legal offence or a breach of service rules, employers were required to establish mechanisms to address and resolve complaints promptly.

These complaint mechanisms were to include a committee, counselling services, and confidentiality assurance. The committee had to be led by a woman, with at least half of its members being women. Additionally, to avoid undue influence from higher authorities, the committee had to involve a third party, such as an NGO, familiar with the challenges of sexual harassment.

Employers were to educate female employees about their rights and prominently display the court's guidelines.

Even if a third party was responsible for sexual harassment, employers were obligated to provide support to the victim.

Both central and state governments were tasked with ensuring that private-sector employers implemented these guidelines.

The Supreme Court's decisions hold the status of "law" and are legally binding on all other Indian courts, as stipulated by Article 141 of the Constitution. Even though these guidelines were initially transitional, they were meant to be effective until the legislative process took over. In essence, the Supreme Court's action in the Vishaka case can be seen as addressing a democratic deficit by creating laws when the legislative branch was unable to do so.

Critical Analysis
Numerous cases have emerged in Indian high courts, and occasionally in the Supreme Court, related to the Vishaka guidelines. These cases aim to establish complaints committees, challenge the composition of existing committees, or contest dismissals based on committee decisions.

In the case of Apparel Export Promotion Council v. A.K. Chopra in 1999, the Supreme Court had its first opportunity to apply the Vishaka judgment. The council's chairman was accused of sexually harassing his secretary, although he didn't engage in physical molestation. However, his services were terminated based on the complaint.

When he filed a writ petition against his employer, the Delhi High Court ruled that since there was no physical contact, no molestation had occurred. In an appeal by the council, the Supreme Court reversed the Delhi High Court's decision. It recognized that sexual harassment didn't require physical contact, aligning with Vishaka's broad definition.

The Supreme Court emphasized that sexual harassment violated the dignity of women and could not be tolerated. The Supreme Court's progressive stance in the Chopra case represented a departure from the traditional approach of Indian courts. The apex court acknowledged that harassment extended beyond physical actions, recognizing the damaging effects of mental harassment.

In analyzing Indian jurisprudence post-Vishaka, it's evident that the Indian judiciary has taken sexual harassment seriously. It has defined harassment inclusively, covering any behaviour that denies employment-related benefits due to the rejection of sexual demands (quid pro quo harassment) or creates a hostile work environment without necessarily impacting economic benefits.

However, the Vishaka case, which aimed to protect disadvantaged sections of society or minorities, has not been immune to misuse. In the case of Usha C.S. v. Madras Refineries (Madras Refineries), an employee accused her general manager of sexual harassment, claiming that her study leave with pay, salary, and promotion were denied because she rejected his advances. The Madras High Court examined the allegations and found them baseless, suggesting that the employee had used the allegation of sexual harassment as a bargaining tool for personal gain.

The court emphasized that employers should not allow employees to exploit the shield provided by the Vishaka judgment for personal vendettas, even though they are bound by the Supreme Court's directives. It described Vishaka as a 'double-edged weapon' and stressed that an allegation of harassment must be referred to a complaints committee before being considered valid.

The Vishaka case has also generated debates about whether the Supreme Court overstepped its boundaries by creating guidelines that were meant to operate until legislation was enacted, as both the legislative and executive branches had not fulfilled their constitutional duties in this regard. Notably, a two-judge bench of the Supreme Court had opposing views on whether judges could effectively act as lawmakers in the University of Kerala v. Council, Principals', Colleges, Kerala and Ors. case.

Justice Markandey Katju expressed scepticism about the court's role in Vishaka, arguing that the court seemed to be functioning as an interim Parliament, making laws until the actual Parliament acted. He had doubts about the constitutionality of the court's directives in such cases. On the contrary, Justice Ashok Kumar Ganguly believed that judicial intervention was acceptable in situations where there was a legislative void. He also stated that the cases where the Supreme Court played such a proactive role were ´┐Żapplauded internationally.

As the bench was divided over the legitimacy of "judicial legislation" and the matter involved a significant legal question related to interpreting the Constitution itself, it was referred to the Chief Justice of India for consideration by a Constitution Bench of the Supreme Court. The judgment by Justice Katju and Justice Ganguly, referring the matter to a Constitution Bench, was delivered on November 11, 2009, but the reference remains pending before the Chief Justice.

Since the Vishaka judgment, the National Commission for Women (NCW) has been actively involved in developing a Code of Conduct for the Workplace and has also proposed draft bills on the subject in various years, including 2000, 2003, 2004, 2006, and 2010.

In December 2010, the "Protection of Women against Sexual Harassment at Workplace Bill, 2010" was presented in Parliament. This bill included several progressive measures to address sexual harassment, such as monetary penalties for employers, interim relief for complainants, and mandatory reporting procedures for organizations.

Notably, the bill extended its protection beyond traditional employer-employee relationships, encompassing clients, customers, apprentices, daily wagers, students, and hospital patients. Initially, the bill did not cover domestic workers, who are among the most vulnerable in India's unorganized sector. However, this shortcoming was rectified through an amendment.

It's worth noting that the bill primarily focuses on addressing sexual harassment against women and does not comprehensively cover harassment against men, even though such cases are relatively rare. Despite this limitation, the bill is considered a positive step forward in addressing the issue of sexual harassment in the workplace. It was approved by both houses of Parliament and received Presidential assent on April 25, 2013.

Conclusion
The Vishaka Guidelines indeed laid the foundation for the establishment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. The Supreme Court's proactive approach in the Vishaka Judgment, often cited as an exemplary instance of judicial activism, inspired and set a precedent for other nations in addressing the issue of workplace sexual harassment.

While significant progress has been made in recognizing and addressing the problem of sexual harassment at work, there are still challenges to overcome. Bhanwari Devi's case, which played a pivotal role in highlighting the need for appropriate legislation to protect women from sexual harassment, has not yet received the justice it deserves, even after two decades.

It's crucial to acknowledge that despite the enactment of comprehensive laws to safeguard women in India, the country still faces significant challenges related to the safety and security of women. This raises the question of whether the issue is solely about the law itself or if it also reflects broader societal attitudes and behaviours.

Addressing this problem effectively requires not only strong legislation but also changes in societal attitudes, awareness, and commitment from individuals, organizations, and institutions to create a safer and more inclusive environment for women in the workplace and beyond. It is a collective responsibility to work toward a society where women are treated with dignity and respect and where their rights and safety are upheld.

References:
  • Zia Mody, 10 Judgements That Changed India (Penguin India 2013).
  • Sai Gayatri, Case analysis : Vishaka & Ors. v State of Rajasthan & Ors. ((1997) 6 SCC 241) ´┐Ż landmark case on sexual harassment, IPLEADERS (Oct. 17, 2023, 10:50 AM), https://blog.ipleaders.in/case-analysis-vishaka-ors-v-state-of-rajasthan-ors-1997-6-scc-241-landmark-case-on-sexual-harassment/.
  • Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625.
  • Usha C.S. v. Madras Refineries, (2001) 1 MLJ 802.
  • University of Kerala v. Council, Principals', Colleges, Kerala and Ors., AIR 2010 SC 2532.


 

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