Vishaka & Ors. v. State of Rajasthan & Ors.

As everyone knows, sexual harassment of women at workplace is not a new issue, in the landmark judgement the Apex Court, in an attempt to protect women from the evil, issued the 'Vishaka guidelines'.
CITATIONAIR 1997 SC 3011
COURTSupreme Court of India
JUDGES/CORAMChief Justice Sujata V. Manohar and Justice B.N. Kirpal
DATE OF JUDGEMENT13.08.1997

Introduction

The landmark case of Vishaka & Ors. v. State of Rajasthan & Ors. has been hailed to address the issue of sexual harassment of women at the workplace. By its historical judgment, the Apex Court of our country laid down several guidelines to be implemented by workspaces to protect women from any sorts of sexual harassment at work. Before we move on to the facts and analysis of the case, it is pertinent to remember that sexual harassment does not only include sexual gestures or touches but also covers obscene jokes, passing of comments, uninvited touching, etc. In fact, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that “Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advance, sexually colored remarks, showing pornography and sexual demands, whether by words or actions”

Facts

The facts of the case are as follows: A social worker in a Rajasthan village was brutally gang-raped. This incident sparked the need to file a writ petition for the enforcement of fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. The case was a class action suit by a group of social activists and Non-Governmental Organisations to prevent sexual harassment of women at the workplace.

Issues

The main issue in the case was: How to combat sexual harassment and ensure gender equality at workplaces.

Summary of court decision and judgment

The Supreme Court realized the burning need to address the issue and gave a set of guidelines and norms.

Analysis

Gender equality has been a serious concern for countries across the globe. Sexual harassment comes within the ambit of gender inequality. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) under Article 11 provides that:

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“States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on basis of equality of men and women, the same rights, in particular:… right to work… right to protection of health and safety in working conditions”

The Convention also provides some recommendations in respect of its Article 11 viz. effective complaints procedures and remedies, information in State reports about sexual harassment, etc. The Government of India ratified the CEDAW in 1993 and made an official commitment in the Fourth World Conference of Women in Beijing to formulate and operationalize national policy on women.

In respect of India, each incident where a woman is robbed of her dignity or person is a fundamental failure of the fundamental rights as enshrined in the Constitution. On the face of it, ‘Equality of Genders’ and ‘Right to Life and Personal Liberty’ are infringed. Gender Equality has repeatedly been sought to be instituted by courts as well as common people into the society, whereby women and men are treated equally. This equal treatment must not only be in terms of job opportunities or pay scale, but also in terms of how they are treated as ‘humans’, and not as ‘men’ and ‘women’. Furthermore, Right to Life includes right to live with dignity. And no person can take away that right from another by his explicit actions.

Yet, when working women are particularly concerned, there is another violation of their right to practise any profession, occupation, trade or business, as enshrined under Article 19(1)(g) of the Constitution of India. There exist various provisions which confirm the Supreme Court’s jurisdiction to tackle the issue. First and foremost, the Supreme Court could give its judgement on the issue by virtue of Article 32 of the Constitution. Next Article 15(3) also gives the power to the State to make any special provisions for women (and children). Additionally, the Directive Principle of State Policy as enshrined under Article 42 requires State to make provision for securing “just and humane conditions of work”. Moreover, the Indian government’s commitment at the Beijing Conference gave the Supreme Court the backing to adjudicate upon the issue of gender equality and sexual harassment, in the present case.

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Following the above reasoning, the Supreme Court issued a set of guidelines and norms to combat the issue of sexual harassment at the workplace which may be summarised as below:

It shall be the duty of employer or other responsible persons to prevent or deter sexual harassment and provide procedures for resolution, settlement and prosecution of any such acts. Preventive Steps: Express prohibition of sexual harassment by way of notifications and circulars; Regulations prohibiting sexual harassment and penalties for their violation (with respect to Government and Public Sector); Appropriate work conditions.

Additionally, the provisions for disciplinary action, complaint mechanism and complaints committee were given.

Conclusion

Though the above-mentioned guidelines were to be “strictly observed in all workplaces for preservation and enforcement of the right to gender equality of the working women”, we still hear and see how women are subjected to sexual harassment at the workplace through movements such as MeToo. The most welcome development after the landmark judgment was the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. Yet the Act suffers from loopholes and gaps which need to be plugged by the Legislature and Judiciary.