AUTHOR- Kanchan, MDU Centre for Professional and Allied Studies, Gurugram.
Vishaka judgment is one among the foremost gifted pieces of law the court has ever enacted in its history since its inception. Gender injustice and harassment is the commonest problem faced by women in most parts of the planet, but the condition of Indian women is disgusting.
Vishaka & others. V. The state of Rajasthan may be a case which deals with the evil of harassment of a woman at her workplace. Harassment means uninvited/unwelcome sexual favour or sexual gestures from one gender towards the opposite gender. It makes the person feel humiliated, offended, and insulted to whom it's been done.
In 1997, the apex court began a few guidelines about harassment that ladies face in their workplace. The rules were laid down on the idea of fundamental rights given in our constitution. The court seeing the importance of the matter came directly into the bottom by breaking all the restrictions upon it by the constitution and laid down such guidelines which might make sure that no such act of harassment goes unpunished.
Facts of the case
· The petition filed was concerning the enforcement of the elemental right (of the employed men) under article 14, 19 and 21 of the constitution of India.
· Bhanwari devi was a saathin (welfare worker) for the women’s development programme to stop child marriage in bhateri (Rajasthan, India) managed by the government of Rajasthan. As a role of their job, she operated instantly with families to prevent the marriages and report cases to the police when necessary follow-up operation was required.
· This involved one particular case, where bhanwari devi reported a family from the gujjar community to the police. They were arranging the wedding of a one-year-old infant. She put all the efforts to prevent the wedding of ram Karan gujjar's girl who was just a few months old.
· However, marriage occurred, yet she wasn’t, pardoned for her endeavours to prevent the marriage. She was exposed to social barriers. In September 1992, upset with the intervention, ram Karan gujjar and his mates, the group attacked her ahead of the husband at her home.
· Her husband was attacked and controlled, while she was gang-raped. No detailed investigation was launched, and police delayed taking statements regarding what had happened. The policeman demanded the victim bhanwari to go away by leaving her clothes as evidence and return to her house. All she had was just her husband’s bloodstained dhoti to wear.
· Bhanwari was also forced to hunt medical attention in janipur. The doctors were negligent to once they affirmed just her age without making any substantial reference towards assault (gang rape) in the therapeutic report at Jaipur. Fifty-two hours passed before a check-up was conducted.
· Determined to receive justice for the brutal acts committed against her, bhanwari took her case to attempt court in Jaipur. The court acquitted the accused (all five men). In dismissing the case, judges found it highly doubtful that an uncle and his nephews would rape another woman together.
· They also found it is impossible to believe that bhanwari’s husband could be restrained while watching his wife be raped. Other reasons offered by the court included bhanwari’s delayed report back to the police and therefore, the lack of medical evidence identifying the lads who had raped her.
· The high court expressed that “it is an instance of group assault which was submitted out of retribution." this incited Vishaka and 4 other women NGOs to file a petition for an equivalent within the supreme court of India.
The injustice and brutal attack bhanwari suffered exposed the gravity of harassment within the workplace and therefore, the lack of protection women has against it, and therefore, the supreme court examined the problems intricately.
Issues of the case
The supreme court had inspected the case which highlighted the matter of gender inequality, outraging the modesty of girls, harassment at the workplace, and rape as societal problems with substantial intensity.
Constitution: - article 14, article 15, article 19 (1)(g), article 21
The bench in Vishaka was called upon for the implementation of the elemental rights specified beneath articles 14, 19 & 21. This rise also was an important think about the increase in incidents of harassment and related offenses against women at workplaces. There was no law to stop & punish the commission of such offenses, therefore; the majority of the incidents went unreported and hence unpunished.
This was a black mark on the Indian criminal justice system. The legislature was still silent on making any law in such regard even after multiple incidents of comparable nature where there was harassment. Therefore, during a class-action suit, brought by various NGO’s and social workers, finally, the apex court brought this silence to an end. The court had formulated new guidelines without even hesitating in breaking the boundaries of the constitution for the prevention of such kinds of incidents.
This was a welcome step by the Sc where it finally provided the victims of such incidents a law through which they will seek the remedy. This episode exhibited the consequences to which a working woman faces and therefore the urgent requirement for protection by the other system within the lack of statute. The court ruled that violation of gender equality is a violation of the right to life & liberty mentioned under article 21. Alongside the violation of article 21, the court also found a gross violation of article 14 & 15.
The court after reading article 51(c) with article 253 and entry 14 of union list mentioned in the 7th schedule found that within the absence of relevant statutes the court can draw inspiration from the law of nations, treaties, and conventions to resolve a drag.
Therefore, the court after a deep interpretation of:
· Convention on the elimination of all sorts of discrimination against women (article 11 & 24)
· General recommendations of cedaw during this context (article 11, 22, 23, 24)
· At the 4th world conference on women in beijing, govt. Of India made a political commitment to line up a national commission at every level and in every sector, which will take care of women’s rights.
Came up with Vishaka guidelines to stop the taboo that was within the past with none remedy.
The court ruled that gender equality & right to figure with dignity is injured whenever there's as any incident of harassment. These rights have gained universal acceptance therefore, interpretation of international covenants and agreement is a must to formulate such guidelines.
In this judgment, the court provided a group of guidelines for employers — also as other responsible persons or institutions — to a right away makes sure the prevention of harassment. The laws were set down on the purpose of sec. 2 (d) of the protection of human rights act, 1993.
1. Duty of the employer: Within the workplaces and other institutions: to stop or deter the commission of acts of harassment and to supply the procedures for the resolution, settlement or prosecution of acts of harassment by taking all steps required.
2. Definition: In this, the harassment includes the unwanted sexually determined conduct as:
1. Physical contact and advances
2. A requirement or request for sexual favours
3. Sexually shaded observations
4. Displaying pornography
5. The other unwelcome physical verbal or non-verbal conduct of sexual nature
3. Preventive steps: All employers or other person’s in charge of the office including private employers — should take the subsequent preventative steps include:
1. Express prohibition of harassment should be notified, published and circulated in appropriate ways
2. The rules/regulations of state and public sector bodies regarding manner and discipline should include prohibitions of harassment and supply for appropriate penalties in such rules against the offender
3. Suitable work conditions should be delivered in respect of labour, leisure, health, and hygiene to further make sure there's no aggressive environment towards women at workplaces, and no employee woman should possess rational grounds to consider that she is disadvantaged about her employment.
4. Criminal proceedings: Where such conduct amounts to a selected offense under the ipc or under the other laws the employer shall initiate appropriate action via making a complaint with the acceptable authority. It should make sure that victims or witnesses aren't victimized or discriminated against while handling complaints of harassment. The victims of harassment should have the choice to hunt transfer of the perpetrator or their transfer.
5. Disciplinary action: Where such conduct amounts to misconduct employed, appropriate disciplinary action should be initiated by the employer following the principles prescribed.
6. Complaint mechanism: Even such behaviour creates an offense or not under law or a breach of the service rules, an appropriate complaint mechanism should be created within the employer’s standard for retaliation of the accusation made by the sufferer and mechanism should be the time-bound procedure for this.
7. Complaints committee: A complaints committee, a special counsellor, or another support service, including the upkeep of confidentiality must be created within the office.
8. Workers’ initiative: Employees should be allowed to boost problems with harassment at workers' meetings, and in another appropriate forum, and it should be favourably discussed in employer-employee meetings.
9. Awareness: The rights of female personnel should be created by obviously notifying the rules (and appropriate legislation, if enacted on the subject) suitably.
10. Where 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 essential steps and will provide reasonable help to the affected person as well as take preventive action.
The Vishaka judgment along with its importance also contains rationality in the sense that it does not over-pressurize the employer in constructing a redressal mechanism. The judgment has only directed what seems appropriate for the employer to maintain the constitutional principles of equality and liberty. The decision can never be termed as one where the judges invade their surroundings then it is referred to as judicial overreach which is considered to be the best model of judicial activism.
Sexual harassment of women at the workplace happens at a very frequent rate in India. If a serious lawsuit is not filed for the offense then it will cause hindrance in the working rate of women in India and it will hamper the economic situation of India. The government must implement strictly the laws regarding the aversion of sexual harassment at the workplace, because it should realize that, women also constitute the working population of our country.
It should be abolished to prevent the dignity and the respect of women. Numerous distinct techniques and skills shall be performed by the companies, institutions to check their women employees from such social damage. The main purpose behind the stabilization of this right is to encourage gender equality at the workplace without any sort of difference and discernment amongst the workers of an association.