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#GenderJustCourts - Sexual Harassment in the Workplace: Vishakha & Ors. vs. State of Rajasthan

This post is part of a series that seeks to explore judgements relating to gender justice and equality in the Indian Courts. As a common law system, we know that it is the combination of legislation passed in parliament and interpretations made by judges that make up the laws that affect women and girls across India. We hope this series provides an insight into how past cases might impact future ones.

The Vishakha case, 1997, is a landmark judgement towards furthering rights of women at workplaces and ensuring a setup of legal rules for prevention of and protection from sexual harassment at the workplace, filling in the legal void that had existed until then in this regard.

Background of the case

This case was filed in the form of a writ petition before the Supreme Court against the State of Rajasthan and the Union of India. It arose as a form of class action by a group of social activists and NGOs in the aftermath of the brutal rape of Bhanwari Devi, a social worker in Rajasthan, for stopping a child marriage. There was an emphasis made in the petition on the need to enforce the fundamental rights of working women, under Articles 14, 19 and 21 of the Constitution of India.

Highlights of the case

The case relied on international covenants and several constitutional provisions to make its point and evolve guidelines to be followed by employers at workplaces to address workplace sexual harassment in the absence of a law for the same, these guidelines are commonly known as the ‘Vishakha Guidelines’

It looked at Article 15 i.e. Prohibition of discrimination, Article 51(c) i.e. Foster respect for international law and treaty obligations, Article 51A i.e. Fundamental Duties, Article 253 i.e. Power of the Parliament to make legislation giving effect to international agreements as well as entry 14 under the Union List, VIIth Schedule, that deals with implementation of treaties and agreements with other countries, under the Constitution of India, to emphasise that the ambit of fundamental rights as envisaged in the Constitution of India covers all aspects of gender equality, including prevention from sexual harassment or abuse at the workplace.

As there was a marked absence of specific law dealing with sexual harassment at the workplace in India, the Supreme Court also looked at international conventions and norms while formulating its judgement, to better understand and expand upon the inherent need for safeguards against sexual harassment at the workplace to prevent a violation of fundamental constitutional principles of ‘gender equality’ and the ‘right to work with human dignity’. It drew upon the role of the judiciary as outlined in the ‘Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region’ to further formulate the Vishakha Guidelines - the formulation of the guidelines had active support and aid of the Solicitor General of India who was appearing for the Union of India in this case. Provisions of the 'Convention on the Elimination of All Forms of Discrimination against Women’ are also relied upon, specifically the articles that focus on the need for States to take action to reduce discrimination against women at workplaces and those that underline the need to tackle workplace sexual harassment and further define what sexual harassment at the workplace means. The commitments of the Government of India at the Fourth World Conference on Women in Beijing were also called upon as actions to allow for such judicial interpretation of the fundamental rights under the Constitution of India by the Supreme Court.

Towards Gender Justice? Definitely!

This judgement was a definite positive step towards achieving gender justice. The language of the judgement itself places emphasis on the need for India to work towards gender equality and gender justice. While the judgement noted that the rape case which was the basis of this writ petition was under trial in another case, it still took into account that such an incident brought to light the several potential hazards faced by women at the workplace. The judgement focuses on ‘Gender Equality’ as a fundamental right along with the ‘Right of Life and Liberty’, broadening the scope of fundamental rights and protections further. The judgement also looks at the need for the Executive to act to protect such rights (Article 73) and for realistic commitments to constitutional guarantees. Its focus on the CEDAW clause that states, “Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the workplace.” highlights the judgements’ focus on tackling the issue of gender justice under the larger ambit of equality.

The judgement also stated that in such a case, for the order of the court to be effective in tackling the large scale issue of workplace sexual harassment, the order needs to carry directions for prevention of such further cases - thereby giving birth to what is popularly known as the ‘Vishakha Guidelines’. The judgement was proactive and undertook the creation of an alternative legislative mechanism in the absence of a law with the aid of the expertise of several legal luminaries to formulate its eventual order. This judgement highlights a never seen before level of judicial activism on the part of the Supreme Court and a creative form of judicial legislation, it has been lauded by several activists and academicians. While the ‘Vishakha Guidelines’ were extremely needed, several scholars do question if such action by the Judiciary could lead to an increase in its ambit beyond its constitutional powers or even lead to a relaxing of the attitudes of the Legislature towards taking action for forming relevant laws.

Implications of the case

The judgement outlines certain guidelines and norms (Vishakha Guidelines) that are to be followed at all workplaces and institutions until a legislation is enacted for the same. These guidelines highlight the duties of the employer in such cases; define sexual harassment in the context of a workplace; lay down preventive steps that must be taken; provide for provisions related to disciplinary action or criminal proceedings; ask for the setting up of an appropriate complaints mechanism and a Complaints Committee as given under the guidelines; provide scope for workers’ initiatives and awareness efforts along with procedural details. The judgement aimed to provide a comprehensive mechanism to tackled workplace sexual harassment, through the use of a mix of preventive, prohibitory and redressal measures. The legislature only enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, on April 23rd, 2013 - 16 years after the judgement of the Supreme Court.

Vandita Morarka is a Legal Researcher at SAHR and the Founder and CEO of One Future Collective. She in an independent policy consultant and gender rights facilitator. You can follow her on Twitter.

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