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History - Vishaka Judgment


History - Vishaka Judgment
History - Vishaka Judgment

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Workplace Harassment - History

The Bhanwari Devi gang rape case in 1992 marked a pivotal moment that triggered the call for legislation against workplace harassment. Bhanwari Devi, employed by the Haryana government in the Women and Child Development Department, was working to prevent child marriages when she was brutally gang-raped by members of the influential Gurjar community. The incident gained widespread media attention, particularly when the accused were acquitted by a lower court.


In response to this shocking event, several Non-Governmental Organizations (NGOs) filed a writ petition in the Supreme Court in 1997 to safeguard women's fundamental rights under Articles 14, 19, and 21 of the Constitution. This petition specifically addressed the issue of sexual harassment of women in the workplace. 


Recognizing the lack of specific legislation in this area, the Supreme Court issued the Vishakha guidelines as an interim measure to provide a framework for addressing workplace harassment until formal legislation was enacted.


It took 16 years from the issuance of the Vishakha guidelines for the legislature to pass the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). This delay shows the complexities and challenges in addressing the issue of workplace harassment through legislation.


However, the Bhanwari Devi case and the subsequent legal interventions played a crucial role in raising awareness and establishing a legal framework to combat workplace harassment in India.

 
 

The Vishaka Judgment

In 1992, Bhanwari Devi, a Dalit woman employed with the rural development programme of the Government of Rajasthan, was subjected to a brutal gang rape due to her efforts to combat the prevalent practice of child marriage.


This horrific incident brought to light the daily hazards faced by working women and underscored the urgent need for protective measures. Responding to this call, women’s rights activists and lawyers initiated a public interest litigation in the Supreme Court, known as Vishaka.


For the first time, the Supreme Court recognized the glaring legislative gaps and acknowledged workplace sexual harassment as a violation of human rights. Drawing upon the Convention on the Elimination of All Forms of Discrimination against Women, which India had signed and ratified in 1979, the Vishaka Guidelines were framed.

Here are the key provisions outlined in the guidelines:


  • Duty of Employers: Employers or responsible persons in workplaces must take steps to prevent and deter acts of sexual harassment and establish procedures for resolution, settlement, or prosecution of such acts.


  • Definition of Sexual Harassment: Sexual harassment encompasses unwelcome sexually determined behavior including physical contact, demands for sexual favors, sexually colored remarks, showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.


  • Preventive Steps: Employers should expressively prohibit sexual harassment and include rules/regulations against it in government, public sector bodies, and private sector standing orders.


  • Criminal Proceedings: Employers must initiate appropriate legal action under the Indian Penal Code or other laws against offenders and ensure victims or witnesses are not victimized or discriminated against.


  • Disciplinary Action: Misconduct in employment regarding sexual harassment should result in appropriate disciplinary action according to relevant service rules.


  • Complaint Mechanism: Employers should establish a complaint mechanism for victims to redress grievances, ensuring confidentiality and time-bound resolution of complaints.


  • Complaints Committee: A Complaints Committee, headed by a woman with at least half its members being women, should be constituted to handle complaints, involving a third party if needed.


  • Workers' Initiative: Employees should be allowed to raise issues of sexual harassment in appropriate forums.


  • Awareness: Awareness of female employees' rights regarding sexual harassment should be promoted by prominently notifying the guidelines.


  • Third-Party Responsibility: Employers must take reasonable steps to assist employees affected by sexual harassment from third parties or outsiders.


  • Government Intervention: Central/State Governments are urged to consider adopting measures, including legislation, to ensure compliance with these guidelines by employers in the private sector.



According to the Vishaka judgment, issued under Article 32 of the Constitution, these guidelines were deemed to have the force of law until a legislative framework on the subject was established and enacted. It was mandated that organizations, both in the private and government sectors, must adhere to these guidelines.


The Vishaka judgment defined sexual harassment as encompassing unwelcome sexually determined behaviors, whether expressed directly or implicitly. These behaviors included physical contact and advances, requests for sexual favors, sexually suggestive remarks, displaying pornography, and any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.

 
 

Evolution of the Law on Workplace Sexual Harassment

The principle of gender equality has been deeply ingrained in the constitutional framework of India since its inception. It finds expression in various parts of the Constitution, including the Preamble, fundamental rights, fundamental duties, and Directive Principles. 


Despite this, the issue of workplace sexual harassment in India was formally recognized for the first time by the Supreme Court of India in its landmark judgment in Vishaka v. State of Rajasthan. In this historic ruling, the Supreme Court formulated guidelines and issued directives to the Union of India to draft an appropriate legislation to address workplace sexual harassment.


It is quite ironic that the Prevention of Sexual Harassment (POSH) Act and its corresponding Rules were enacted a staggering 16 years after the Vishaka Judgment. During this gap period, in the absence of specific legislation, the Vishaka Guidelines served as the de facto framework for addressing workplace sexual harassment. Employers across the country were mandated to establish mechanisms for addressing grievances related to workplace sexual harassment, in line with these guidelines.


The Vishaka judgment sparked a nationwide conversation about workplace sexual harassment, bringing to light an issue that had long been ignored. One of the first cases to come before the Supreme Court after Vishaka was the Apparel Export Promotion Council v. A.K. Chopra case. 


In this landmark case, the Supreme Court reaffirmed the principles established in the Vishaka Judgment and upheld the dismissal of a senior officer who had been found guilty of sexually harassing a female subordinate. The Court broadened the definition of sexual harassment, emphasizing that physical contact was not necessary for an act to constitute harassment. It defined sexual harassment as unwelcome sexual advances, requests for sexual favors, or any other verbal or physical conduct with sexual undertones. 


This behavior, whether direct or implied, could create an intimidating or hostile work environment, impacting the female employee's job performance and employment conditions.


Dr. Medha Kotwal of Aalochana NGO in the case of Medha Kotwal Lele & Ors. v. Union of India & Ors raised concerns about the ineffective implementation of the Vishaka Guidelines, citing individual cases of sexual harassment. The Supreme Court converted her letter into a writ petition and took proactive measures to monitor the guidelines' implementation nationwide. It directed state governments to submit affidavits detailing their efforts to enforce the Vishaka Guidelines. 


Emphasizing the need for substantive and comprehensive implementation, the Court stressed the importance of providing a safe and respectful work environment for women. Dissatisfied with the progress, the Court instructed states to establish adequate mechanisms for effective implementation. It also affirmed the right of aggrieved individuals to approach the respective High Courts in cases of non-compliance with the Vishaka Guidelines.


In the case of Binu Tamta v. High Court of Delhi, the Supreme Court declined a plea to amend its sexual harassment regulations to make them gender-neutral, asserting that the term 'aggrieved woman' does not encompass LGBTQIA individuals.


The Court upheld its stance that the existing regulations are not inclusive of LGBTQIA persons, thereby rejecting the petition seeking a gender-neutral approach to sexual harassment regulations.


In Union of India v. Dilip Paul, the court emphasized that in sexual harassment cases, judges should not be swayed by hyper-technicalities but should instead consider the broader context.



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