Monday, 24 January 2022

CASE ANALYSIS OF VISHAKA AND ORS BY TEJESHWAR PANDEY

 CASE ANALYSIS OF Vishaka and Ors. v. State of Rajasthan and Ors.


Court Supreme Court of India

Full case name Vishaka and Ors. v. State of Rajasthan and Ors.

Decided 13 August 1997

Case history: Subsequent action(s) Superseded by the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Sexual Harassment Act").

Judges sitting J.S. Verma (Chief Justice), Sujata V. Manohar, B.N. Kirpal

Decision by J.S. Verma (Chief Justice)


INTRODUCTION 

When it comes to the pernicious practice of sexual harassment in the workplace, no one can deny the importance of Vishaka & ors. v/s state of Rajasthan . The Supreme Court is deciding a momentous case in the history of sexual harassment. Uninvited or unwanted sexual favours or sexual gestures made by one gender towards the other are considered sexual harassment. It causes the individual to feel ashamed, outraged, and disrespected. It has been shown that in many circumstances, a gay employee harasses another employee of the same sexual orientation.

Indians refer to this kind of harassment as "Eve Teasing," and it may be characterised by the following acts: making sexually explicit remarks or jokes; unwelcome touching; making sexually explicit pleas; and sending sexually explicit photographs or text messages or emails. Under Article 14, Indian Constitution, women have the basic right to gender equality, and Article 21 guarantees the right to life and a decent existence. As a result, Sexual Harassment breaches both of these essential rights. However, despite the fact that the Indian Constitution does not include a provision for sexual harassment in the workplace. While a murderer devastates the victim's bodily structure, the victim's spirit is defiled by a rapist.

Sexual harassment is one of the societal ills that affects the most vulnerable members of society. When high society or those who engage in sexual harassment fail to recognise the critical needs and rights of women, the results will be as catastrophic as an inert volcano's burst or explosion, which has the potential to bring similar destruction.


FACTS OF THE CASE

First and first, the facts of the case must be presented in depth in order to facilitate greater comprehension. First and foremost, the instance of an alleged horrific gang rape of a lady in a Rajasthani hamlet was the impetus for this struggle for gender justice. Social worker Bhanwari Devi was gang-raped for her selfless efforts to discourage child marriage. Sadly, due to the lack of evidence, this criminal case was dropped. As a result of this occurrence, a number of social activists and non-governmental organisations (NGOs) pushed for laws to protect women against sexual harassment at work. This writ petition was brought under Article 32 by a group of social activists and non-governmental organisations (NGOs) who claimed that “Articles 14, 15, and 21 of the Constitution were violated.”


ISSUES RAISED

Let's have a look at some of the problems that have been brought up:

• How does Articles 14, 15, and 21 of the Constitution treat sexual harassment in the workplace?

• Is it possible to rely on an international convention in the absence of home legislation?

• If sexual harassment is a problem in the workplace, should there be mandated guidelines?

CONCLUSIVE ARGUMENTS

Articles 14, 15, 19(1)(g), and 21 are all cited by the Council as being violated when it comes to sexual harassment in the workplace. As a follow-up, counsel argued that the legislation was needed because there was a lack of relevant laws in the area of a safe workplace for women. The respondent's legal counsel, on the other hand, provided a significant amount of help to the Court in dealing with the aforementioned social evil. Meenakshi Arora and Naina Kapur were also on hand to provide their support. Amicus Curiae, Shri.Fali S. Nariman, was also nominated to assist the Court. There's no way around it: Providing legal help shows a desire to work together toward a common goal of protecting the rights and welfare of the people. 

PETITIONER’S CONTENTIONS

Despite the fact that the judgement did not specify independent reasons presented by both parties, several arguments were to be taken into consideration:  According to Vishaka's petition, workplace sexual harassment is rampant “and the employer often gets away with it because of the lack of proper regulations.” Article 14, 15, 19(1)(g) and 21 of the Constitution of India guarantee the basic rights of women, and these actions contradict them.  Hon'ble Court requested guidelines for combating workplace sexual harassment.

RESPONDENT’S CONTENTIONS

The Solicitor General, who appeared on behalf of the respondents, surprised everyone by supporting the petitioners. To combat sexual harassment and create procedures to avoid it, the respondent worked with the Hon'ble Court. Amicus curiae Fali S. Nariman, Naina Kapur, and Meenakshi all contributed significantly to the proceedings.


JUDICIAL REASONING

According to Article 14, 15, and 19(1)(g) of the Constitution, the court decided that such an act constitutes a clear infringement. Furthermore, the Court referred to a few other articles, such as Article 42 (Provision for Just and Humane Conditions of Work and Maternity Relief) and Article 51A (Provision for Maternity Benefits) (Fundamental duties of the citizen).  

After a brief discussion of international treaties, the Court turned to domestic law and the implementation of international agreements. “An International Convention that is consistent with fundamental rights and in harmony with its scope can be applied for the promotion of the Object of the Constitutional guarantee as implied by Article 51 (c) and the Article 253 (Power to Parliament to enact laws for the implementation of the International Conventions and Norms) read along with the Entry 14 under Union List in the 7th Schedule of Indian Constitution..... Article 73 was also stressed by the court (Extent of Executive power of the Union).”

To round up its rulings, the Supreme Court noted the importance of international norms and conventions in guaranteeing equal treatment for men and women in the workplace and the right to an environment free of sexual harassment.

There are minimal principles that must be taken into consideration to guarantee judicial independence and effectiveness in the LAWASIA area, according to the court's Beijing Statement of Principles on Judiciary Independence  . The Court referred to Articles 11 and 24 of the Convention on the Elimination of All Forms of Discrimination Against Women   while addressing the issue at hand. International Conventions are used to better comprehend basic rights in the Constitution through the lens of gender equality, as shown in Minister for Immigration and Ethnic Affairs v. Teoh and Nilabati Behera v. State of Orissa   and   respectively, which were used as precedents.


JUGDEMENT 

Writ petition “filed by the victim in this case resulted in Chief Justice J.S. Verma representing Justice Sujata Manihar and Justice BN. Kripal in the delivery of the decision. Articles 14, 19(1)(g) and 21 of the Indian Constitution provide that every profession, trade, or vocation must provide” its workers with a safe working environment. The right to life and the right to a decent existence were harmed by it. The most important condition was that a safe working environment be available on the job.

At the Supreme Court, it was ruled that women had a basic right to be free of sexual harassment at work. Employees were also given essential advice on how to prevent sexual harassment of female coworkers in the workplace. In addition, the court recommended that matters involving workplace sexual harassment be handled using suitable approaches. The Supreme Court's primary goal was to guarantee that everyone was treated equally regardless of gender and that no one may discriminate against women in the workplace.

As a result of this decision, the Supreme Court clarified the meaning of the phrase "sexual harassment," making it clear that it includes any unwanted physical contact or action with women, as well as the display of pornography or other offensive language or behaviour.

The Vishaka Guidelines:

1. Employers could take preventative actions, such as prohibiting harassment outright and ensuring that their employees have hygienic, comfortable, and healthful working circumstances.

2. The appropriate disciplinary action should be taken when administration rules are violated in the workplace.

3. Employers are obligated to notify law enforcement if the offences reported are covered under the Indian Penal Code, 1860.

4. Organizations need to establish an anti-harassment committee. Whatever the legislation is in India, it should not matter whether or not this protest constitutes an offence. Women must make up more than half of the members of a committee like this, and the head must be a woman, too. The government must also receive an annual report on the committee's progress.

5. The company should take the necessary steps to raise public awareness of the matter.

 

 ANALYSIS

First and foremost, the Supreme Court's recommendations are worth emphasizing. Seriously, however, this case touches on a topic that is very important to women and, as such, has put some light on it. Furthermore, the judiciary's acknowledgment of the flaws in the legislation and the necessity to provide a solution to the societal problem, strengthens the very core of democracy. That the court's ruling on adopting the International Convention into domestic law is completely pitch-perfect is unquestionable If we draw comparisons between then and today, we see that sexual harassment is still a threat to women. There's no limit to the damage that can be done to a woman's life by a single occurrence like this.

After eight years, there are still numerous cases of sexual harassment that go unreported despite the passage of the Sexual Harassment of Women at Workplace Act, 2013. For a statute that has been in limbo for more than 16 years, the Act hasn't lived up to the lofty expectations that would be anticipated. Self-defeating and nullifying aspects of the work have gone ignored, and some crucial characteristics have been overlooked entirely. Some of the most important mechanisms for dealing with domestic abuse have not been made accessible. These include legal knowledge; clinical counselling facilities; medical insurance; recompense from the employer; and so on.

The Employer's Duty:  Such acts of sexual harassment may be prevented by stating prohibitions, ensuring excellent work conditions and putting the prohibitions in regulations relating to behaviour and discipline issued by either government or private sector.

If there is wrongdoing in the workplace of this nature, the employer must take appropriate disciplinary action. Employers must take appropriate action if an incident falls within the purview of the IPC. As a result of this complaint, the victims should have the choice of seeking transfer to her or to the wrongdoer and should not be subjected to any kind of discrimination because of it. It is the employer's responsibility to assist the victim in circumstances when such offences were committed by a third party. In other words, this is what we mean when we say "sexual harassment

Sex-based harassment includes uninvited physical contact, sexually motivated requests for favours, showing pornography, and making sexually explicit statements or other unwelcome verbal or nonverbal sexual activity.

Committee and complaint process:

It is imperative that an effective complaint procedure be established to ensure that complaints get timely redress. Additional options include the creation of a complaint committee that is led by a woman and has at least half of its members made up of women. An annual report on the complaints and the responses made by the committee and the employer must be sent to the relevant government department.

Efforts by a worker:

In order to address these challenges, employees should be encouraged to speak out.

Awareness:

Employees should be made aware of the rules that have been put in place. The government will enact the necessary regulations. To address this issue, the court asks the federal or state government for legislation in the private sector.


The law, which was designed to be helpful to victims, really makes things more difficult for them. Cultural shifts, especially in areas like sexual assault and exploitation, should be reflected in legal provisions. When it comes to sexual harassment, the failure to link legal evolution to social change might disclose a great lot about the amount of misunderstanding. Legislators should conduct a comprehensive study of the Act and correct any defects they find. In a society as afflicted as India's, the legislature must make a concerted effort to confront and resolve this issue. Women's empowerment has gone a long way since the country's independence, but there are still many areas in which it has to be improved. The society's gender stereotypes may be traced back to this widening divide. Ultimately, society's thinking must be changed to achieve gender equality. Then and only then will we be able to proudly display the crest of women's empowerment.

CONCLUSION

The number of women in the workforce continues to rise as the country works toward its development objectives. In order to defend women's human rights, it is necessary that we recognise their right to protection against sexual harassment. It's all part of the process of assuring women's self-determination, equal access to career opportunities, and the right to a respectable work environment. Sexual harassment in the workplace is a problem that has to be addressed on a social level. Sexual harassment is a serious problem that has to be addressed by both employers and employees, as well as the legal framework for dealing with the issue.

It's clear that this case marks a turning moment in the movement to empower women in society. Appreciation is warranted for the Court's efforts to reach a clear-cut conclusion in this case. This verdict, without a shadow of a doubt, sets a precedent for the rest of our lives. In the end, the Sexual Harassment of Women at Workplace Act of 2013 was passed, bringing to light some long-overdue protections. Despite the existence of such regulations, the societal issue of sexual harassment in the workplace persists. Men, on the other hand, are subjected to many forms of sexual harassment. Due to all of these factors, more comprehensive legislation addressing all aspects of this problem is urgently required.

Workplace sexual harassment should be dealt with on a regular basis by conducting dissemination and awareness-raising activities, as well as conducting frequent reviews of best practises for dealing with sexual harassment. Women may better defend themselves against sexual harassment by improving their education on the subject and according to the preventative measures.


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