Vishaka vs State of Rajasthan (1997)
Vishaka vs State of Rajasthan (1997)
- Vishaka & others. v/s state of Rajasthan is a case which deals with the evil of Sexual Harassment of a women at her workplace.
- It is a landmark judgment case in the history of sexual harassment which as being decide by Supreme Court.
- Sexual Harassment means an uninvited/unwelcome sexual favor or sexual gestures from one gender towards the other gender. It makes the person feel humiliated, offended and insulted to whom it is been done.
- In many of the cases, it has been observed that homosexual labor harass an employee belonging to the same sex to which he belongs.
Background | Vishaka vs State of Rajasthan (1997)
- Bhanwari Devi was a saathin (social worker) for the Women’s Development Programme in Bhateri (Rajasthan, India), working on a campaign to end child marriage. As part of her job, she worked directly with families to prevent the marriages and report cases to the police when urgent follow-up action was needed. This included one particular case, where Bhanwari reported a family from the Gujjar community to the police. They were arranging the marriage of a one-year old infant.
- Upset with the intervention, the family rebelled against Bhanwari. After attempting to ostracise her from her community, five men – Ramsukh Gujjar, Ram Karan Gujjar, Gyarsa Gujjar, Badri Gukkar and Shravan Sharma – went to her home. Her husband was attacked and restrained, while she was gang-raped.
- Bhanwari and her husband went to the police for help. No thorough investigation was launched and police delayed taking statements regarding what had happened. Before the police told her to return home, she was asked to leave her skirt behind as evidence. Bhanwari was also forced to seek medical attention in Janipur. When she arrived, the doctor only recorded her age – leaving out any reference to rape in his report. Fifty-two hours passed before a medical examination was conducted.
- Determined to receive justice for the brutal acts committed against her, Bhanwari took her case to a trial court in Jaipur. However, the court acquitted all five men. In dismissing the case, judges found it highly improbable that an uncle and his nephews would rape another woman together. They also found it impossible to believe that Bhanwari husband could have been restrained while watching his wife be raped. Other reasons offered by the Court included Bhanwari delayed report to the police and the lack of medical evidence identifying the men who had raped her.
- In response to Bhanwari story, Vishaka (Group for Women’s Education and Research) joined together with four other women’s organisations to file a petition to the Supreme Court of India on the issue of sexual harassment at the workplace. The injustice and brutal attack Bhanwari suffered would expose the gravity of sexual harassment in the workplace and the lack of protections women have against it.
Issue Raised In This Case | Vishaka vs State of Rajasthan (1997)
- Whether, the enactment of guidelines mandatory for the repudment of sexual harassment of women at workplace.
- The judgment of Vishakha’s case was conveyed by Chief Justice J.S Verma as a representative of Justice Sujata Manihar and Justice B.N Kripal on account of writ petition which was file by Vishakha the victim of this case. The court observed that the fundamental rights under Article 14, 19(1)(g) and 21of Constitution of India that, every profession, trade or occupation should provide safe working environment to the employees. It hampered the right to life and the right to live a dignified life. The basic requirement was that there should be the availability of safe working environment at workplace.
The Supreme Court held that, women have fundamental right towards the freedom of sexual harassment at workplace. It also put forward various important guidelines for the employees to follow them and avoid sexual harassment of women at workplace. The court also suggested to have proper techniques for the implementation of cases where there is sexual harassment at workplace. The main aim/objective of the Supreme Court was to ensure gender equality among people and also to ensure that there should be no discrimination towards women at there workplace.
After this case, the Supreme Court made the term Sexual harassment well defined, accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt or misbehavior, or any sexual desire towards women, sexual favor will come under the ambit of sexual harassment.
“Vishaka Guidelines” | Vishaka vs State of Rajasthan (1997)
In its judgment, the Court provided a set of guidelines for employers – as well as other responsible persons or institutions – to immediately ensure the prevention of sexual harassment. In accordance with Article 141 of India’s Constitution, these guidelines were to be considered law until appropriate legislation was created:
- Duty of the Employer or other responsible persons in workplaces and other institutions, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
- Definition. For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) 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
- Preventive Steps. All employers or persons in charge of a work place – including private employers – should take the following preventative steps, which include:
a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways
b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender
c) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment
- Criminal Proceedings. Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
- Disciplinary Action. Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
- Complaint Mechanism. Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
- Complaints Committee. The complaint mechanism should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
- Workers’ Initiative. Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
- Awareness. Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
- Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
Significance | Vishaka vs State of Rajasthan (1997)
- The “Vishaka Guidelines” created by India’s Supreme Court were the first enforceable civil law guidelines on the rights of women to be free from violence and harassment in both public and private employment.
- This landmark victory led the Indian Government to introduce legislation prohibiting sexual harassment in the workplace and inspired other reforms across South Asia – including action taken in Bangladesh and Pakistan.
- The Supreme Court of Bangladesh, for example, referred to the Vishaka Guidelines in a ruling that determined violence against women in the workplace were a result of the Government’s failure to take action against it through law. Similarly, it also provided detailed guidelines to be implemented by employers until the Bangladeshi Government took action through legislation.
- Despite widespread recognition of her story and the enactment of laws to protect women from sexual harassment at work, Bhanwari has waited over 23 years and is yet to receive justice against her attackers. Her continued fight is a reminder of the challenges women continue to face in accessing justice.
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