EQUIVALENT CITATION – (1997) 6 SCC 241
PETITIONER: Vishaka & Ors.
RESPONDENT: State of Rajasthan & Ors.
DATE OF JUDGEMENT: 13/08/1997
BENCH: J.S. Verma C.J., Sujata V. Manohar & B.N. Kirpal JJ.
1. Nilabati Behra v. State of Orrisa
Vishaka & ors. v/s state of Rajasthan is a case which deals with the evil of Sexual Harassment of a women at her workplace. It is a landmark judgment case in the history of sexual harassment which as being decide by Supreme Court. Sexual Harassment means an uninvited/unwelcome sexual favor or sexual gestures from one gender towards the other gender. It makes the person feel humiliated, offended and insulted to whom it’s been done. In many of the cases, it has been observed that homosexual labor harass an employee belonging to the same sex to which he belongs.
Sexual harassment is also termed as Eve Teasing in India, and it can be determined from the following acts like- passing of indicative or typical comments or jokes, uninvited touching, making appeals for sex, sexually blunt pictures or text messages or emails, discredit person because of sex. Accordingly, Sexual Harassment violates the fundamental right of the women of gender equality which is codified under Article 14 of Indian Constitution and also the fundamental right to life and to live a dignified life is violated/infringed under Article 21 of constitution of India. Even though there has been no provision for sexual harassment at workplace under Indian Constitution.
Justice Arjit Pasayat beholder from his beautiful thought that- while a murderer destroys the physical frame of the victim, on the other hand the rapist defiles the soul of a helpless female.
Sexual harassment is one of the social evil faced by the fragile portion of the society. Now at this point of time the high society people or the people who commits sexual harassment should become aware about the vital needs or rights of women or either when this tranquil volcano of anger will erupt will cause immense danger and shattering which would have equal consequences which is cause from the burst or eruption of an inactive volcano.
Bhanwari Devi was a social worker in a programme initiated by the state government of Rajasthan aiming to curb the evil of Child Marriage. Amidst, the protest to stop a child marriage in one Ramakant Gujjar’s family Bhanwari Devi tried her best to stop that marriage. However, the marriage was successful in its completion even though widespread protest. In 1992, to seek vengeance upon her, Ramakant Gujjar along with his 5 men gang raped her in front of her husband. The police department at first tried to dissuade them on filing the case on one pretext or other but to her determination; she lodged a complaint against the accused. They were however, subjected to harsh cruelty by the female police attendants even to the extent that for procuring evidence her lehenga was demanded from her and she was left with nothing but her husband’s blood – stained dhoti. Adding to their misery, their request to spend the night in the police station was also refused.
The Trail Court made the discharge of the accused people for not being guilty.The High Court in his judgement propounded that it was a case of gang rape which was conducted out of revengeful situation.All these statement and judgement, aroused women and NGO’S to file pitition (PIL) in Supreme Court of India
They all filed a writ petition in Supreme Court of India under the name ‘Vishakha’. The apex court was called upon to frame guidelines for preventing Sexual Harassment at Workplace.
The hon’ble court did come up with such guidelines as Vishakha Guidelines which formed the basis of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
It has been laid down in the judgment above-mentioned that it is the duty of the employer or other responsible persons in work places or other institutions to
1. Prevent the happening of such event
2. To furnish the employees with effective mechanism for the process of resolving & trying of such indecent acts of sexual harassment
3. For this purpose “Sexual harassment” means disagreeable sexually determined behavior direct or indirect as:
• physical contact and advances;
• a demand or request for sexual favours;
• sexually coloured remarks;
• showing pornography;
• any other unwelcome physical, verbal or non-verbal conduct of sexual nature
ISSUE RAISED IN THIS CASE :
Whether, the enactment of guidelines mandatory for the repudment of sexual harassment of women at workplace.
The judgment of Vishaka’s case was conveyed by Chief Justice J.S Verma as a representative of Justice Sujata Manihar and Justice B.N Kripal on account of writ petition which was file by Vishakha the victim of this case. The court observed that the fundamental rights under Article 14, 19(1)(g) and 21of Constitution of India that, every profession, trade or occupation should provide safe working environment to the employees. It hampered the right to life and the right to live a dignified life. The basic requirement was that there should be the availability of safe working environment at workplace.
The Supreme Court held that, women have fundamental right towards the freedom of sexual harassment at workplace. It also put forward various important guidelines for the employees to follow them and avoid sexual harassment of women at workplace. The court also suggested to have proper techniques for the implementation of cases where there is sexual harassment at workplace. The main aim/objective of the Supreme Court was to ensure gender equality among people and also to ensure that there should be no discrimination towards women at there workplace.
After this case, the Supreme Court made the term Sexual harassment well defined, accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt or misbehavior, or any sexual desire towards women, sexual favor will come under the ambit of sexual harassment.
1. Employer or other answerable persons are bound to preclude such incidents from happening. In the event of happening of such incidents the organization must consist of mechanism to provide conciliatory and prosecutionary facilities.
2. Definition – For this purpose “Sexual harassment” means disagreeable sexually determined behavior direct or indirect as :
a) Physical contact and advances;
b) A demand or request for sexual favours;
c) Sexually coloured remarks;
d) Showing pornography;
e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
3. Every employer other than providing services under (1) is under an obligation to
i.) Expressly notify the prohibition of sexual harassment
ii.) The rules/regulations of govt. & public – sector bodies must include rules/regulations prohibiting sexual harassment.
iii.) The Standing Orders of the private employer made under Industrial Employment (Standing Orders) Act, 1946 should include such provisions to prohibit sexual harassment.
iv.) The working conditions must be appropriate and not hostile to the woman employees of the organization. Further, the female employees should feel a sense of equality in the atmosphere.
4. When the offences committed are the one discussed under Indian Penal Code or any other law, the employer is bound to start the prosecution with complaining to appropriate authority.
Further, the employee must provide the victim all sort of protection while dealing with the complaints.
5. Appropriate Disciplinary Action shall be taken in case there is a violation of service rules.
6. Irrespective of the fact that the particular act constitutes an offence under IPC or any other law, the organization must have a redressal mechanism to deal with it.
7. The Complaint Committee must be headed by a woman and not less than half of the members must be woman. For further assistance the committee shall also include NGO’s or someone aware with such issues.
The committee must be adequate in providing relief to the victim with appropriate counseling facilities. An annual report shall be submitted to the govt. by the committee informing the former of the development regarding the said issue in the organization.
8. An employee-employer meet shall be arranged where the workers shall be allowed to raise issues of sexual harassment.
9. The employer shall take adequate steps in order to spread awareness about the social evil.
The court in Vishakha was called upon for the enforcement of the fundamental rights mentioned under article 14, 19 & 21.In 1991 the country had seen rise in gender equality in terms of employment. Since, 1991 more women were employed in establishments than pre 1991 period. This rise also was a crucial factor in the rise of incidents of sexual harassment and related offences. At that point of time there was no law to prevent & punish commission of such offences therefore, majority of the incidents went unreported and hence unpunished. This was a black stain on the Indian criminal justice system. Due to this absence of law, there were many gross violations of rights & the victims had no remedy. The legislature was still silent on making any law in such regard even after multiple incidents of similar nature where there was sexual harassment. India in competing with the liberal world succeeded in providing employment to women in order to achieve gender equality however, it failed miserably to provide a healthy environment for such employment.
Therefore, in a class action, brought by various NGO’s and social workers, finally the apex court brought this silence to an end. The court without hesitating in breaking its constitutional boundaries (only to interpret law) formulated guidelines for the prevention of such incidents. These guidelines are known as Vishakha guidelines. This was a welcome step by the SC where it finally provided the victims of such incidents a law through which they can seek remedy.
This incident revealed the consequences to which a employed woman faces and the pressing need for protection by any other procedure in the lack of statute. The court therefore felt the need to find an alternative mechanism to deal with such incidents. These guidelines had the effect of protecting female liberty in the employment establishment so that they could feel an atmosphere of equality. The court ruled that violation of gender equality is violation of Right to life & liberty mentioned under Article 21. Along with the violation of Art. 21, the court also found gross violation of Article 14 & 15.
The court after a combined reading of Article 51(c) with Article 253 and Entry 14 of Union List mentioned in 7th Schedule found that in the absence of relevant statutes the court can draw inspiration from international law, treaties and conventions to resolve a problem and then came up with Vishakha guidelines to prevent the taboo that was in the past without any remedy.
The court ruled that Gender equality & right to work with dignity is injured whenever there is a any incident of Sexual Harassment. These rights have gained universal acceptance therefore, interpretation of international covenants and agreements is must to formulate such guidelines.
Vishakha judgment is one of the most gifted pieces of law the court has ever enacted in its history since its inception. The court seeing the importance of the matter, came directly into the ground by breaking all the restrictions upon it by the constitution and laid down such guidelines which would ensure that no such act of harassment goes unpunished.
The Vishakha judgment along with its importance also contains the rationality in the sense that it does not over-pressurize the employer in constructing redressal mechanism. The judgment has only directed what seems appropriate for employer in order to maintain the constitutional principles of equality and liberty. The judgment can never be termed as one where judiciary encroaches its boundaries irrationally i.e. Judicial Overreach instead it is the best example of judicial activism.
Sexual Harassment of women at workplace happens at a very frequent rate in India. If any strict action will not be taken towards this crime, it will directly hamper the working ration of the women in India and on other hand it will hamper the economic situation of India. Government should make strict laws regarding the aversion of sexual harassment at 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 the women. Various new approaches and skills shall be implemented by the institutions, organisations to prevent there women employees from such a social evil. The main objective behind the stabilization of this right is to promote gender equality at workplace without any kind of discrimination and discernment among the workers of an organisation.
 AIR 1997 SC 3011
 Article 14, Constitution Of India, (Right To Equality)
 Article 19 (1)(G) Constitution Of India, (Right To Practice Ones Profession)
 Article 21, Constitution of India, (Right to life)
 AIR 1997 SC 3011 at 3014