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Vishaka v/s State of Rajasthan

Women are not subjects. They are citizens, the right to dignity and a safe environment at the workplace is their fundamental rights.

Brief Facts and Procedural History:
  1. Bhanwari Devi from Bhateri village of Rajasthan was working on the Women’s Development Project under the state program and subsequently employed as a social worker in rural area.
  2. In the year 1992, she was working on an awareness program against child marriage. However, even being aware of the fact that child marriage is an illegal and a criminal offense, people ignored and disapproved of her thoughts
  3. The victim, Bhanwari Devi came across news that, Ram Karan Gujar of the native village was about to marry off her infant daughter. She thought it to be her obligatory duty (being employed under a state program against child marriage ) to stop such marriage. She tried to convince the family not to perform the child marriage. But, they overlooked her words and carried on with the marriage.
  4. The Sub-Divisional Officer and Deputy Superintendent of Police also went to prevent child marriage on May 5, 1992. But, all these efforts were futile as the event took place the very next day, and no police action took place against the offenders. The villagers, anyhow, got to know about the initial police complaints were made by Bhanwari Devi, who then boycotted her and her family.
  5. On September 22, 1992, Ram Sukh Gujar, Badri Gujjar, Ram Karan Gujjar, Gyarsa Gujjar, and one of their friend Shravan Sharma, to seek revenge for filing a police complaint against them, tied the husband of Bhanwari Devi and brutally gang-raped her in front of him. When the victim tried to lodge an FIR against them, the police tried to avoid filing the complaint, which led to the delay in medical examination of the victim by fifty-two hours.
  6. Due to a delay in the medical examination of the victim, the examiner did not find any proof for the commission of rape and hence, concluded his report accordingly. In the light of this report, the trial court did not find any evidence to prosecute the accused, resulting in acquittal of all. The acquittal resulted in a huge reaction by the women activists and NGOs working for the welfare of the women’s fraternity.
  7. The reaction from various groups resulted in filing for a Public Interest Litigation seeking a writ of mandamus by an organization named Vishaka.
Case Name: Vishaka & Ors vs State Of Rajasthan & Ors
Case No. (1997) 6 SCC 241
Court: Supreme Court of India
Bench: Hon’ble Chief Justice. J.S. Verma, Justice. Sujata V. Manohar &
Justice. B.N. Kirpal.
Decided on: Pronounced on: August 13, 1997
Relevant Statute
Article- 14, 15, 19(1)g , 21, 42, 51A, 51, 141 & 253 of The Constitution of India

Issues of the Case
  1. Whether sexual harassment at the workplace tends to violate the Right of Gender Inequality and Right to Life and Liberty or otherwise
  2. Whether the court can consider the international treaty, laws, and resolutions in absence of the domestic law?
  3. Whether the employer has any obligation and responsibility when a crime of sexual harassment is done by/to his employee?

Contentions/Arguments
By Appellant
  1. An offense like sexual harassment is a violation of the fundamental rights of working women under Articles 14, 19, and 21 of the Constitution of India. The increasing cases of rapes and such sexual offenses are a matter of concern for working women
  2. The incident of Rajasthan with Bhanwari Devi reveals the hazards to which women are exposed in the workplace.
  3. This PIL seeks the writ of mandamus to provide for an urgent safeguarding mechanism when the domestic laws lack in addressing such issues.

By Respondent
Solicitor General Tushar Mehta represented the respondent. Respondents did not argue against the contentions of the petitioner. Agreeing with the contentions for an urgent need for a mechanism to safeguard the interest of the working women defendant duly assisted the hon’ble court in framing out the guidelines for the prevention of sexual harassment at the workplace.

Ratio/Principle of the Case
Hon’ble Supreme Court observed that
  1. The Bhanwari Devi incident was a crime under the available penal code, so the matter was dealt with separately. The PIL was filed to frame urgent guidelines to safeguard the interest of working women in light of the cruelty they are subjected to, alike in the Bhanwari Devi case.
     
  2. The Hon'ble Court observed that, in the absence of legislative remedy for sexual harassment in the workplace, the need to develop an alternate guideline was necessary due to rising crimes. The incidents like this are a violation of the fundamental rights under Article 14 (Right to Equality), Article 15 (Discrimination based on Gender), and Article 21 (Life and Liberty) of the Constitution of India.
     
  3. Further, to engage the word ‘workplace’ Court had defined it as the fundamental right of a person ‘to practice any profession or to carry out any occupation, trade, or business’ under Article 19(1)g of the Indian Constitution. Since, the ‘Safe environment’ and ‘Right to life, inclusive of the right to live with dignity are crucial while carrying the business activities or any occupation, crimes like sexual harassment abstract both the factor resulting in the violation of the right and so the writ was entertained under Article 32 of the Constitution of India.
     
  4. Stressing upon the applicability of writ of mandamus, the Court effectively pointed out that in such a situation where such a crime is of the recurring phenomenon, it shall be attested with preventive directions to fill the legislative gap.
     
  5. Apart from the following observations Court decided to put it on the record, the valuable assistance of both the counsels and Shri Fall. S. Nariman, who led the Court as Amicus Curiae, a friend of the Court in a matter of great significance to the society at large.
     
  6. In the absence of the domestic law, Court emphasized on Article 51(c) (encourages the implementation and obligation of the international law and obligation of a treaty), Article 253 (Empowers Parliament to make law and implement the treaty, agreement, and International conventions) and Article 73 which provides executive power to the union in any matter of which they are empowered by Constitution of India. Court explored every opportunity to consider the international treaty and resolutions on discrimination against women to frame the guidelines. Referring to the case of Nilabati Behera Vs State of Orissa 1993(2) SCC 746 court observed that provision of ICCPR (International Covenant on Civil and Political Rights) was being referred to support the verdict of the bench. Hence, the Court found no plausible reason ‘not’ to refer to the international treaties, conventions, and resolutions to frame the preventive guidelines.
     
  7. In the light of the above facts, the absence of legislation over the issue of sexual harassment at the workplace, availability of International sources, and the power of the court to frame guidelines empowered by various provisions of the Constitution of India. The Hon'ble Supreme Court of India invoked its' power under Article 32 for the enforcement of the Fundamental Rights and set out guidelines that shall be declared to be law under Article 141 of the Constitution of India.

Decision/Judgment of the Court
The Hon’ble Supreme Court of India held that
  1. Sexual harassment at the workplace is a violation of the Right to Inequality and Right to Life (inclusive of Right to live with Dignity) under Article 14, 15, 19(1)g and 21 of the Indian Constitution. And Article 32 will be invoked to enforce and provide remedies for such violations.
  2. The court analyzed various provision of the Constitution that empowers the parliament to ensure the implementation of the International treaty and resolutions. Also, citing the case of Nilabati Behera Vs State of Orissa 1993(2) SCC 746 Court observed that no provision bids them reach the International resolution and treaty to form the guideline in the matter concerned.
  3. Invoking Article 141 of the Constitution, the following guidelines were declared to be law-
It shall be the duty of the employer or any other person, so responsible in a workplace
  1. To prevent the happening of any such events
  2. To provide the employees of the organization with effective mechanisms to process the resolving, settling, and prosecuting any such incidents in the organization.
  3. That, for this purpose ‘Sexual Harassment,’ shall include any unwelcoming sexually-oriented behavior, by any means, directly or indirectly as:
    • Close physical contact and advances
    • Demand and request for sexual favors;
    • Sexually oriented remarks;
    • Showing of pornography;
Any such other unwelcoming physical verbal or non-verbal conduct, sexual by nature.
These guidelines shall be effective only with a structured mechanism, and so court provided for:
  • Preventive Steps
  • Mode of Criminal Proceedings,
  • Disciplinary Action,
  • Complaint Mechanism,
  • A Complaints Committee
  • Workers Initiative
  • And Awareness Program
The above guidelines shall be strictly followed and be binding as law until legislation is adopted by the Parliament. Accordingly, the Writ Petition was disposed of.

Written By: Siddharth Gupta {BBA.LL.B (Hons) } , Amity Law School, Noida

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