Legal Method - Case Study: Vishaka vs. State of Rajasthan

 This article is written by Amisha Gupta pursuing B.A.LL.B from George School of Law (Calcutta University).

Vishaka vs. State of Rajasthan

[AIR 1997 SC 3011 : JT 1997 (7) SC 384]
J.S. Verma, C.J.I., Mrs Sujata V. Manohar and B.N. Kirpal, JJ 

Brief facts of the case :

Bhanwari Devi was a village level social worker (saathin) of a development program run by the state government of Rajasthan fighting against child in multiple marriages in villages. She was subjected to gang rape after she tried to stop Ramkaran Gujjar infant daughter's marriage, who was less than a year old. The Gujjar were well connected people which led to the harassment of Bhanwari Devi after getting raped. The doctor refused to examine Bhanwari Devi after getting raped. Even at the police station Bhanwari Devi was taunted throughout the night. Later on the complaint was lodged in the police station. The trial court acquitted the accused. Letter on the High Court stated that it is the case of gang rape. several campaigns were made as a part of which petition in the supreme court under the name of vishakha was filed. 

 The writ petition was filed by Vishaka a non-governmental organisation working for gender equality, by way of Public Interest Litigation seeking enforcement of fundamental rights of working women under Article 14 19 and 21 of the Constitution and in finding out switchable methods of realisation of the true concept of gender equality. The result in Supreme Court judgement which came on 1997 and gave the Vishakha guideline.

Issue of the case :

In this case mainly sexual harassment at work place, rape and marriage of a girl who is less than a year old. Whether, the enactment of guidelines mandatory for the repudment of sexual harassment of women at workplace. 

Judgement :

The Supreme Court stated that gender equality includes protection from sexual harassment and right to work with dignity which is universally recognised basic human right. The common minimum requirement of this right has received global acceptance. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the content of international convention and nerves are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in article 14 15 19 (1)(g) and 21 of the constitution and the safeguard against sexual harassment implicit therein. The Supreme Court formulated and exhausted guideline to prevent sexual harassment of working women in place of their work in the absence of an effective legislation in this field. 

Guidelines :

The hon'ble Supreme Court let down the following guidelines :-

1.) Duty of the Employer or other responsible person in workplaces and other institution: 

It shall be their duty to prevent or deter the commission of act on sexual harassment and to provide prosecution.

2.) Preventive Step :

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.

3.) Criminal Proceedings:

Where such conduct amounts to a specific offence 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.

4.) 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.

5.) Complaint Mechanism:

Appropriate compliant mechanism should be created in the employer's organisation for redress of the complaint made by the victim. Such compliant mechanism should insured time bound treatment to complaints.

6.) Complaint Committee:

The compliant mechanism referred to in (6) above, should provide a complaint committee, a special councilor or other support services, including maintenance of confidentiality. It must make an annual report of the complaints to the concerned Government department. 

7.) Workers' Initiative:

Employees should be allowed to raise issues sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer - Employee Meetings. 

9. Awareness :

employees in this regard should be created in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in a suitable manner. 

10. Third Party Harassment :

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. 

11. 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. 

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

References:

1.) Babu Sarkar's - Legal Method & Legal Research Methodology, Marketed by : N.M. Roychowdhury Co., Published by Manash Dutta: Moon Law Agency, First edition June, 2014 , Reprint 2018.

2.) Dr. Sanjeev Kumar Tiwari - Legal Method, Published by Central Law Home, 3rd reprint 2017.

3.) http://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of-rajasthan.html