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The Supreme Court of India passed a judgment on 13 August 1997 in which it laid down guidelines to be followed by establishments in dealing with complaints about sexual harassment. This was seen in the case of Vishaka & Ors vs State Of Rajasthan & Ors (AIR 1997 SC 3011) and the case was presided over by Justice J.S. Verma, Justice Sujata V. Manohar, Justice B.N. Kirpal.

FACTS OF THE CASE:

In the year 1985, Bhanwari Devi, a woman from Bhateri, Rajasthan, began working for the Government of Rajasthan’s Women’s Development Project (WDP). She was hired as a ‘Saathin,’ which translates to ‘friend’ in Hindi. Bhanwari took up an issue of attempted rape of a woman from a neighboring village as part of her duty in 1987. She received unanimous support from her village members for this move. Bhanwari took on another subject in 1992, this time based on the government’s campaign against underage marriage. Even though they were aware that child marriage is illegal, the inhabitants of the village reacted with disgust and ignorance to this campaign.

Meanwhile, Ram Karan Gurjar’s family had made plans to organise such a marriage for his young daughter. Bhanwari, doing her job, attempted to persuade the family not to execute the marriage, but all of her efforts were useless. The marriage was approved by the family. On May 5, 1992, the sub-divisional officer (SDO) and the Deputy Superintendent of Police (DSP) went to the supposed marriage and stopped it. However, the marriage was performed the following day, and no police action was taken. The locals later determined that the police visits were the result of Bhanwari Devi’s efforts. This resulted in a boycott of Bhanwari Devi and her family. Bhanwari too suffered a loss.

To exact retribution, five men—four from the aforementioned Gurjar family—Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar—along with one Shravan Sharma attacked Bhanwari Devi’s husband and viciously gang-raped her on September 22, 1992. The police had tried everything they could to avoid filing a complaint against the accused, resulting in a prolonged inquiry. Even after receiving so much abuse, Bhanwari Devi was able to file a case due to her unwavering commitment to obtain justice. The medical checkup was postponed for 52 hours. However, the examiner did not include any rape commission in the report, instead mentioning the victim’s age.

In the absence of sufficient evidence and with the assistance of local MLA Dhanraj Meena, all of the accused were acquitted in the Trial Court. However, many women activists and organisations who backed Bhanwari were outraged by her acquittal. These organisations banded together and raised their voices in the pursuit of justice, resulting in the filing of a Public Interest Litigation.

The court raised the following issues:

1. Whether sexual harassment in the workplace violates the rights to gender equality and the right to life and liberty.
2. Is it possible for the court to apply international rules in the absence of existing measures?
3. Is the employer liable when sexual harassment is committed against/by its employees?

JUDGEMENT:

To proceed with the matter, the Hon’ble Court referred to international norms. In the absence of any legal framework, it referred to the Beijing Statement of Principles on the Independence of the Judiciary[3] in the LAWASIA region, to operate as a custodian of citizens’ rights and autonomously make laws. The Hon’ble Court then cited the requirements of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[4]. They had been-

Article 11 (1) (a) & (f)- provides that the State takes all relevant measures to eliminate workplace discrimination against women.

Article 24 stipulates that the State shall endeavor to take all necessary national measures aimed at achieving full fulfillment.

The Supreme Court issued the Vishaka Guidelines to prohibit sexual harassment in the workplace, which were to be considered as legislation under Article 141 of the Indian Constitution. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 was based on these standards.

The Vishaka guidelines:

1. DUTY OF THE EMPLOYER OR ANOTHER EQUIVALENT AUTHORITY– Employers and other responsible parties are obligated to prevent such heinous sexual harassment instances from occurring. If such an act occurs, the organization must have a process in place to give prosecutorial and conciliatory remedies.
2. DEFINITION – “Sexual Harassment” involves disagreeable sexually driven behavior, whether direct or indirect, as—

Advances and physical contact;

A demand or demand for sexual favors;

Sexually charged remarks

Displaying pornography;

Any other unwanted sexual physical, verbal, or nonverbal activity.

3. MEASURES FOR PREVENTION– Employers or those in charge of the workplace must take preventive measures such as explicit prohibitions of sexual harassment in the form of notifications or circulars, government penalties against the offender, and appropriate work conditions in terms of hygiene, health, and leisure.
4. PROCEEDINGS IN THE EVENT OF MISCONDUCT– If the offenses committed are those covered by the Indian Penal Code, 1860, the employer is required to take prosecutorial action by filing a complaint with the proper authority.
5. ADEQUATE DISCIPLINARY ACTION– If a breach of service regulations occurs, appropriate disciplinary action must be taken.
6. REDRESSAL COMMITTEE– A redressal mechanism, or more specifically a complaint committee, must have more than half of its members be women, and its chairman must be a woman. A counseling facility must be included on the committee. Collaboration with NGOs or other organizations that are aware of such issues is likewise allowed. A report on the progress of the committee’s topics must be provided to the government every year.

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JUDGEMENT REVIEWED BY RAMASHESHAN P K.

Click here to view judgement.