Title of Case: Vishaka & Ors v. State of Rajasthan & Ors on 13 August, 1997
Citation: (1997) 6 SCC 241
Court: Supreme court of India
Bench: Cji, Sujata V. Manohar, B. N. Kirpal
Petitioner: VISHAKA & ORS
Respondent: STATE OF RAJASTHAN & ORS.
Bhanwari Devi was a social worker in a programme to stop child marriages initiated by state government of Rajasthan. As her part of work, she tried to stop a child marriage in one Gujjar family which was successful even though after widespread protest. Ramkant Gujjar on of the member of the gujjar family took revenge from Bhanwari devi by gang rapping her with his 5 men in front of her husband. When she lodged a complaint against accused, the police department refused to file the case by giving one pretext or other. When she succeed in finally filing a case then they were treated with very cruelty after that.
Trial court acquitted the accused as there was not sufficient evidence against them but Bhanwari devi with other female social worker filed a writ petition in Supreme court which has been successful and now very well known as Vishaka guidelines.
The supreme court highlighted the problem of gender inequality, sexual harassment at work places and rape i.e. violence against women
Fundamental rights of working women are violated under article 14, 19 and 21 of the constitution of India. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate.
It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or business’. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Apart from previous articles mentioned, few articles which also have relevance are Article 15, Article 42, Article 51A and Article 253.
The progress made at each hearing culminated in the formulation of guidelines to which the Union of India gave its consent through the learned Solicitor General, indicating that these should be the guidelines and norms declared by this Court to govern the behavior of the employers and all others at the work places to curb this social evil
The Government of India has also made an official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women’s Rights to act as a public defender of women’s human rights; to institutionalize a national level mechanism to monitor the implementation of the Platform for Action.
Guidelines made by government for protection of working women are as follows:
- Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or 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.
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 favors;
- c) sexually colored remarks;
- d) showing pornography;
- e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
- Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(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) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) 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 offense under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law 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, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women.
Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
- 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.
- The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
- These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.