VISHAKA AND ORS VS STATE OF RAJASTHAN- (Case Commentary)

INTRODUCTION:

During the olden days, women were barbarously attacked and were refused to various rights like right to education and employment. But later it took a turn in their lives and after all the improvements and struggles of leaders they started to lead an independent life. They live on their own and satisfy their needs in the best way possible. But now they started to face the new burden of sexual harassment. Vishaka and ors v. State of Rajasthan is a case which deals with sexual harassment which is being faced by the women in their work places. It is a landmark judgement in the history of sexual harassment. This case was dealt by the Supreme Court with the question of safety for women at workplace and provided guidelines for the same. Sexual harassment was blatantly ignored by the society and it was prevailing every nook and corner of the nation. Sexual harassment means uninvited or unwelcomed sexual favors or sexual gestures towards the opposite gender. Sexual harassment which is commonly addressed as Eve Teasing in India includes any type of bullying, unwilling physical touch, passing unpleasant comments, making appeals for sex, sending sexually blunt pictures or messages. Sexual harassment is a social evil which pushed many women to fall into depression and caused deaths too. This even act as a barrier for many of the women to step out of their houses and work independently. Instances of sexual harassment violates the fundamental rights of a person which is under Article 14, 19(1)(g) and 21 of The Indian Constitution of India . These articles are regarded as the golden triangle of the Indian Constitution as it embodies gender equality, freedom to practice any occupation, trade or business and the right to life respectively. After this case the people who involve in sexual harassments which affects the fragile portion of the society must be aware of the fact that such kind of indisciplined activities may put them into danger of imprisonment and penalties.

BACKGROUND:

Bhanwari devi was a village level social activist in Rajasthan. She undertook the activity of preventing child marriages. She reports to the police when such activity was refused by the families to stop. In a particular case, she followed the same when an arranged marriage was fixed to an infant of less than one year old who belonged to the Gujjar community. The rightful act of her made a turning point in her life. To show their powers, the social activist was brutally gang raped by five men where one of the rapists was the infant’s father. She wanted justice for this evil act so she filed a complaint against the five men but she was ignored and ill treated by the officials of the police station. Despite preferential and derogatory behaviour shown by the police and also the doctors she however managed to put the accused in the trial court. But the court had acquitted the accused due to lack of evidence. Various social organisations and women activists also raised their voices for Devi’s fight against justice. Therefore a Public Interest Litigation (PIL) was filed by the women’s right activities and NGOs to protect women from sexual harassment in work place in the name of ‘Vishaka’. The matter came to Supreme court via PIL where it held that international conventions should be read in the fundamental rights to widen the scope and enlarge their advance. That is how Vishaka guidelines came into force in the year 1997.

VISHAKA GUIDELINES:

Vishaka guidelines are considered to be the most powerful weapon for the safety of the women after the Supreme Court’s judgement. It is important to mention that the court itself enacted the law by using its special power under article 142 of the Indian Constitution. Being conscious on its limitation the court held that these directions would be binding and enforceable until suitable legislation is enacted. In its judgement it defined sexual harassment as unwelcomed sexual activities which includes physical contacts, sexual favours, sexually coloured remarks, verbal or non verbal conduct of sexual nature and showing pornographic content. The higher officials should take proper actions if any sexual harassments happens in the work place whether public or private and the appropriate authority should lodge the complaint against the accused .No one should be discriminated on the basis of sex and appropriate disciplinary action should be taken by the employer in accordance with the rules.  The Complaint committee should be headed by a woman and half of them should be woman. Further the issue can also be dealt with the NGOs and other third parties who are well aware and concerned about sexual harassment issues. The employees should feel free to reach out to their employers and should be discussed in the meetings. Adequate awareness should be provided to the females regarding the guidelines. Even if the harassment takes place outside the workplace the employer still has the right to take measures for the betterment of the female employee. These guidelines even applies for the private sector as well.

SEXUAL HARASSMENT ACT, 2013

In pursuance of Vishaka guidelines given by Supreme Court, the Sexual Harassment act, 2013 (Prevention, Prohibition and Redressal) came into force. India had already signed and ratified Convention on Elimination of Discrimination Against Women (CEDAW) but had no domestic law in furtherance of it. So this was taken in and to fully understand the International conventions in Indian legal system. The act’s provisions cover almost all the guidelines and borrowed it’s definition which were provided under the Vishaka guidelines. This act extends to workplace in both public and private sectors and to get rid of hostile environment at workplaces. It not only protects fundamental rights u/s 14,15,19(1)(g) but also realises the provisions of article 42 of the Indian Constitution. It provides for redressal mechanism. The Enquiry process is confidential and lays down a penalty of Rs.5000 if it is breached. Any person who refuses to comply with the act will be laid down with a fine of upto Rs.50000. Repeating the same violations lead to severe punishments, penalties and cancellation of license of or registration to conduct business.

CRITICAL ANALYSIS:

The guidelines provided in the case of Vishaka and ors v. State of Rajasthan made it to become one of the landmark judgements in the Indian legal system. According to my analysis, the guidelines provided a tremendous change in the society where all educated women stood up boldly and demanded justice. The #METOO movement which is prevailing in India and all the ladies of the crew showers an appreciation to Bhanwari Devi whose case benefited all the women in the society. But it is important to note the limitation which was provided by the court during the release of guidelines where it held that the directions under the guidelines would be binding and suitable until suitable legislation is enacted. As per the limitation provided, the Sexual Harassment act introduced following special law enacted by Parliament shows that the Vishaka guidelines will no longer apply since the Supreme court had itself in its guidelines. It also provided that the inquiry committee could be replaced by an employer, who has to initiate the action based on the report alone. Further the guidelines seem to be gender biased where it provides and safeguards only the female employees. In recent times even homosexual employer or employees harass the people of the same gender. This is  prevailing in India where the society blatantly ignores it. The guidelines provided should favour both men and women in the nation. It is highly appreciable that fine has been levied for false allegations which happens in most of the work places to spoil one’s reputations. But it is quite bothering as the women or female in the remote or interior areas will not be aware of the act and the guidelines. Some will even hesitate to lodge complaint as their livelihood totally depends on the work they pursue. The guidelines clearly state that the victim should head towards the higher official of the work place when she’s been sexually harassed or assaulted but what if the accused was the higher official, what if even the police did not favour her. This type of situation is still being faced by women where they could not find the right place or authority to lodge a complaint. For this an additional demanding law is required where she gets the power to take the law in her hand when she was assaulted or harassed. A special criminal law must be put into place to deal with sexual harassment of women as was done in Tamil Nadu which enacted the Tamil Nadu Prohibition of Harassment of Women act, 1998 to deal such type of cases.

CONCLUSION:

Despite all the laws and bills, the crime of acid attack, bullying, sexual harassments are still prevailing in India. People should also learn higher moral values and seek the art of controlling themselves. Women not only in work places but in any hostile environment should come forward fearlessly if any mischievous activities happen to them. Implementation of laws will not work unless the voices of the victims come out. But it also a humble request to enforce as many strong laws as possible to serve justice in the country.

-R. Ramya

School of Excellence in Law