Vishakha and others v State of Rajasthan
Vishakha and others v State of Rajasthan was a 1997 Indian Supreme Court case where Vishakha and other women groups filed Public Interest Litigation (PIL) against State of Rajasthan and Union of India to enforce the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. The petition was filed after Bhanwari Devi, a social worker in Rajasthan was brutally gang raped for stopping a child marriage.
The court decided that the consideration of "International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein." The petition, resulted in what are popularly known as the Vishaka Guidelines. The judgment of August 1997 given by a bench of J. S. Verma (then C.J.I)., Sujata Manohar and B. N. Kirpal, provided the basic definitions of sexual harassment at the workplace and provided guidelines to deal with it. It is seen as a significant legal victory for women's groups in India.
In India, before 1997, there were no formal guidelines for how an incident involving sexual harassment at workplace should be dealt by an employer. Women experiencing sexual harassment at workplace had to lodge a complaint under Section 354 of the Indian Penal Code that deals with the 'criminal assault of women to outrage women's modesty' and Section 509 that punishes an individual or individuals for using a 'word, gesture or act intended to insult the modesty of a woman'. These sections left the interpretation of 'outraging women's modesty' to the discretion of the police officer.
In 1992 Bhanwari Devi a social worker in Rajasthan was brutally gang raped by a number of upper caste men, because she had tried to stop a child marriage. Bhanwari Devi was determined to get justice and lodged a case against the offenders. However, the accused was acquitted by a trial court. This appalling injustice, together with the fighting spirit of Bhanwari Devi, inspired several women’s groups and NGOs to file a petition in the Supreme Court under the collective platform of Vishakha.
The court decided that the consideration of "International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein." Supreme Court of India defined sexual harassment and set guidelines for employers.
What is sexual harassment
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 favours; c) sexually coloured 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. Thus, sexual harassment need NOT involve physical contact. Any act that creates a hostile work environment - be it by virtue of cracking lewd jokes, verbal abuse, circulating lewd rumours etc. counts as sexual harassment.
The creation of a hostile work environment through unwelcome physical verbal or non-verbal conduct of sexual nature may consist not of a single act but of pattern of behaviour comprising many such acts.
Thus, it is important that the victim report such behaviour as soon as possible and not wait for it to become worse. In some cases, the psychological stigma of reporting the conduct of a co-worker might require a great deal of courage on the part of the victim and they may report such acts after a long period of time. The guidelines suggest that the complaint mechanism should ensure time bound treatment of complaints, but they do not suggest that a report can only be made within a short period of time since the incident occurred.
From guidelines to Act
The Supreme Court of India's judgement only proposed guidelines to alleviate the problem of sexual harassment in 1997. India finally enacted its law on prevention of sexual harassment against female employees at the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Sexual Harassment Act") has been made effective on April 23, 2013 by way of publication in the Gazette of India.
- FP Staff (2011-02-23). "Sexual harassment and Vishakha guidelines: All you need to know". Firstpost. Retrieved 2013-11-21.
- TNN May 7, 2013, 11.04AM IST (2013-05-07). "Most harassment cases go unreported - Times Of India". Articles.timesofindia.indiatimes.com. Retrieved 2013-11-21.
- "India's New Labour Law - Prevention Of Sexual Harassment At The Workplace - Employment and HR - India". Mondaq.com. Retrieved 2013-11-21.