Vishakha and Ors. v/s State of Rajasthan and Ors, AIR 1997 SUPREME COURT 3011

Court: Supreme Court of India

Bench: CJI J.S. Verma, Sujata V. Manohar, B. N. Kirpal

Date of Judgement: 13/08/1997

Relevant provisions/statutes: Article 14,15, 19 and 21

Brief facts

Bhanwari Devi was a government social worker, employed under the Women’s Development Programme of the Rajasthan State Government. She was performing her duty of trying to prevent the marriage of a girl child from an upper caste family taking place in the village as a part of her employment. Enraged by this, five men from the family brutally gang raped her in front of her husband. When she filed a complaint and eventually approached the court, she did not receive justice and all the men were acquitted from the gang rape accusations on the reason of insufficient evidence. Aggrieved by the judgement, a group of women led by Naina Kapur and Sakshi under the banner name “Vishakha” filed a Public Interest Litigation(PIL) under Article 32 of The Constitution of India in the Hon’ble Supreme Court for seeking appropriate remedy against violation of fundamental rights.

Issues

1. Whether the decision given by the trial court was violative of Bhanwari Devi’s fundamental rights under articles 14, 15(1), 19(1)(g) and 21?
2. Whether International laws are applicable in case of absence of applicable measures under the existing legislature?
3. Whether employer has any responsibility when sexual harassment is done to any of his employees and till what extent?

Arguments

The petitioners argued on the following grounds-

1. Violation of Fundamental Rights- The petitioners argued that the sexual harassment at workplaces were violative of fundamental rights under articles 14,15(1), 19(1)(g) and 21 and brought to attention the gap in the legislature which was leading to grave injustice. They also requested the Hon’ble court to frame guidelines for preventing sexual harassment at workplaces.
2. Lack of Legislation- They highlighted the difficulties faced by women with regards to sexual harassment in various ways at workplaces and the lack of specific legislation protecting them making it difficult and unsafe environment for women to work and lead a peaceful life.
3. International Conventions and their importance- The petitioners argued that India has been a signatory to the Convention on Elimination of all forms of Discrimination Against Women (CEDAW) and hence it obligatory for the government to make laws that eradicate all possible gender discrimination as well as sexual harassment against women at workplaces.
4. Duty of the Judiciary- The argument was that since there was a lack of proper legislature it was the duty of judiciary to eradicate crimes presented before it through judicial enactments when there was insufficiency in present legislature to provide for justice.

Respondent’s Argument

The Solicitor General who appeared on behalf of Respondents surprisingly (also required by the situation) sided with the petitioners’ arguments. He also assisted the Hon’ble court in framing the guidelines along with the petitioners and the appointed Amicus Curae.

Judgement

The Hon’ble Supreme Court acknowledged the lack of reforms for protecting women from sexual harassment in their workplace. Through this case, the severity for lack of legislation was highlighted.

While addressing the first issue, Chief Justice Verma declared that sexual harassment acts were highly inappropriate and violative of the fundamental rights of article 14, 15 and 21 of the Constitution. Since sexual crimes are generally directed towards women, it was gender discrimination and violated gender equality. Article 21 was violated because peaceful environment at workplace and dignity is included with right to personal life and liberty. Article 19(1)(g) provides for right to choose and practice occupation which gets violated due to lack of safety for women at workplaces against such crimes and lack of protective reforms. Hence it is required to be addressed at urgency.

The second issue, which discusses applicability of international reforms when domestic laws are not present resulted in the judges ruling out that while addressing grave issues such as sexual harassment, where appropriate laws are not available it is advisable to rely upon international conventions with a view to prevent injustice and provide relief to the persons suffering due to such issues as well as safeguard their rights as provided in article 51(c) under the Directive Principles of State Policy. The Court referenced “the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary.”  It also referred to Article 11(1)(a) and Article 24 of the Convention on Elimination of all forms of Discrimination Against Women (CEDAW) that state that all signatory States must take all appropriate measures to ensure safety and realization for its citizens. It also mentioned India’s official statement at the Fourth World Conference on Women in Beijing committing to formulate and operationalize a national policy on women at every level and in every sector.

With regards to the third and final issue which deals with the employer’s liability in workplace sexual harassment, the Hon’ble court said that the employers on their part must take all appropriate measures to prevent sexual harassment to his employees. The employer or the institution must expressly mention prohibitory regulations against sexual harassment at the workplace among all employees of the institution as well as include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

The court then provided with the Vishakha Guidelines as a temporary preventive measure until the actual legislation is passed in order to direct the employees to officially take measures. Following are the guidelines-

1. Duty of Employers:

Every employer must prevent or deter the commission of acts of sexual harassment and provide mechanisms for resolution as a part of his duty.

2. Definition of Sexual Harassment:

The court provided an explicit definition of sexual harassment to reduce ambiguity and establish crime. It includes:

• Unwelcome physical contact or advances
• Demand or request for sexual favors
• Sexually colored remarks
• Showing pornography
• Any other unwelcome physical, verbal or non-verbal conduct

         3. Preventive Steps:

Preventive measures were applicable to all public and private employers as follows-

• Clear prohibition against sexual harassment must be notified and published.
• Disciplinary rules must incorporate penalties for sexual harassment.
• Appropriate working conditions to ensure dignity and health.

4. Criminal Proceedings:

Where the act constitutes an offense under IPC or other laws, the employer must assist the victim in filing a complaint and ensure they are not victimized. There also must be a robust mechanism to deal with the said cases.

5. 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.

6. Complaint Mechanism:

Am 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.

7. Complaints Committee:

The complaints committee mentioned in the previous point must adhere to the following conditions-

• Headed by a woman.
• At least 50% women members.
• Include a third-party (NGO/outsider) to ensure impartiality.
• Submit annual reports to government authorities.

8. Workers’ Initiative:

Employers must allow discussions on sexual harassment in workers’ forums and have regular discussions even in employer-employee meetings.

9. Awareness Creation:

Employers must ensure widespread awareness of these rights and protections by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.

10. Third-party Harassment:

Employers must assist victims even when harassment is by outsiders and ensure appropriate action is taken.

11. Government Responsibility:

Governments are urged to legislate to formally adopt and enforce these standards across all sectors, including private enterprises.

12. Human Rights Act Not Affected:

The guidelines are in addition to the protection under the Protection of Human Rights Act, 1993 and do not violate them.

Ratio Decidendi

The Hon’ble Supreme Court has acknowledged the violation of fundamental rights under articles 14, 15(1), 19(1)(g) and 21 and that in the circumstances where there is insufficient legislation, the courts may lay down sufficient and required guidelines  by referring to international conventions and treaties in order to dispense justice as well as protect the civilians rights.

Final Judgement

The Supreme Court through its power under article 141 which provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India declared the Vishakha Guidelines which were 12 Preventive measures against sexual harassment in workplaces until a specific law is enacted by the Parliament. These guidelines were in effect until the Sexual Harassment of Women at Workplace(prevention, prohibition and Redressal) Act, 2013 was enacted which focused specifically on the issue and this judgement proved to be the gateway to this enactment.