Dated: 13 August 1997 // In: Supreme Court of India // Bench Strength: 3
Women who accuse men, particularly powerful men, of harassment are often confronted with the reality of the men’s sense that they are more important than women, as a group.
– Anita Hill, Speaking Truth to Power
The landmark judgement delivered by the Hon’ble Supreme Court in Vishaka is a phenomenal milestone in feminist jurisprudence, serving as a kindling lamp for the realisation of gender justice in India. The guidelines laid down by the Hon’ble Supreme Court for the prevention of sexual harassment of women at workplaces have contributed considerably to the empowerment of women in the country and have ultimately paved way for the enactment of the POSH Act, 2013.
The immediate cause of filing the present writ petition was the unfateful case of Bhanwari Devi who was subjected to brutal gang-rape in 1992 for attempting to stop a child marriage in her village while working as a member of the state’s Women’s Development Program (WDP) to effect their policy against child marriages. She was victimised while lodging the FIR at the police station when she was asked to deposit her lehenga (‘skirt’) as evidence and was left to cover herself with her husband’s bloodstained turban for a 3 km walk to the village in midnight.
The five accused in the Bhanwari Devi case were acquitted by the District & Sessions Court in Jaipur reasoning, inter alia, that Bhanwari’s husband couldn’t have passively watched his wife being gang-raped. The judge’s critical remarks in the course of trial and the social boycott of Bhanwari Devi afterwards catalysed the women’s rights movement seeking to fill the legislative gaps for preventing sexual harassment of women at workplaces. Hence, the present public interest litigation came to be filed by Vishakha before the Hon’ble Supreme Court in 1997.
THE COURT'S DECISION
Hon’ble J. Verma, CJI, in his judgement, specified that the ‘right to work with human dignity’ is encompassed in Arts. 14, 15, 19 (1)(g) and 21 of the Constitution of India and implicitly safeguards against sexual harassment therein.
1. FOCUS ON GENDER EQUALITY
The Apex Court opined that ‘gender equality’ includes protection from sexual harassment and the right to work with dignity, a universally recognised fundamental human right. Since India ratified the Beijing Statement of Principles of the Independence of the Judiciary’ in the LAWASIA region in 1993, the Hon’ble Supreme Court placed reliance on the same to construe the nature and ambit of the constitutional guarantee of gender equality in our Constitution.
2. RELIANCE ON INTERNATIONAL CONVENTIONS
While referring to Ethnic Affairs v. Teoh and Nilabati Behera v. State of Orissa, the Apex Court further clarified that the international conventions and norms are to be read into the national law in the absence of enacted domestic law, when there is no inconsistency between them.
The Hon’ble Supreme Court relied on Section 10 of the ‘Beijing Statement of Principles of the Independence of the Judiciary’ in the LAWASIA region and the General Recommendation on Article 11 of the CEDAW to issue the guidelines sought as a redress under Article 32 of the Indian Constitution.
3. FORMULATING THE GUIDELINES
The Supreme Court laid down the guidelines under Article 141 of the Indian Constitution to prevent sexual harassment at all workplaces until the enactment of the POSH Act in 2013. The Guidelines have been summarised below:
- Definition: For this purpose, as defined in the Vishaka case, sexual harassment includes “such unwelcome sexually determined behaviour (whether directly or by implication) as: (1) physical contact and advances; (2) a demand or request for sexual favours; (3) sexually coloured remarks; (4) showing pornography; (5) any other unwelcome physical, (6) verbal or non-verbal conduct of sexual nature”.
- Duty of the Employer to provide procedures to settle, resolve or prosecute any acts of sexual harassment to create deterrence.
- Preventive Steps to be taken by all employers or persons in charge of the workplace to prevent sexual harassment, whether in the public or private sector.
- Criminal Proceedings to be initiated by the employer in case the conduct amounts to a specific offence under the Indian Penal Code or under any other law.
- Disciplinary Action to be initiated by the employer in case of misconduct in employment as defined by the relevant service rules.
- Complaint Mechanism in the employer’s organisation to redress the victim’s complaint.
- Complaints Committee, headed by women, should be provided wherever necessary.
- Workers’ Initiative to raise issues of sexual harassment should be allowed.
- Awareness of the rights of female employees by prominently notifying the guidelines in a suitable manner.
- Third-Party Harassment should be prevented by taking all steps necessary to assist the affected person in terms of support.
- Measures by the Central/State Governments should be undertaken to enforce the Vishaka Guidelines in private workplaces.
The “Vishaka Guidelines” were a much needed welcome step in a country which is still regarded as one of the most dangerous places for women. Although the 1997 Guidelines were applicable to informal as well as formal sectors, lack of proper implementation has defeated the very purpose and objective sought through them. In the case of Medha Kotwal Lele & Ors. v. Union of India, the Hon’ble Supreme Court itself observed that the Guidelines were breached in substance and spirit by state functionaries and all other concerned parties.
Furthermore, it has taken 16 years for the Central Government to enact the POSH Act, which is another reminder of the challenges faced by women in accessing justice. A safe and secure environment for women at the workplace is essential to enable them to work with dignity, decency and due respect. Conclusively, the road to realise gender equality and safeguard the basic human rights of women still remains a challenge that needs to be overcome by the State in the coming years.
 Taisha Abraham, 2002, “The Politics of Patriarchy and Sathin Bhanwari’s Rape”, Women and the politics of violence, Har-Anand Publications, pp. 277–279.
 William Dalrymple, 2004, “The sad tale of Bahveri Devi”: The Age of Kali: Indian Travels and Encounters, Penguin Books India, pp. 97–110.
 128 ALR 353.
 (1993) 2 SCC 746.
 General Recommendation No. 19, Violence against Women (1992), CEDAW.
 Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011, para. 23.
 K.K. Geetha, ‘Bill on Sexual Harassment: Against Women’s Rights’, (2012), Economic and Political Weekly, Vol. XLVII No. 3.
 AIR 2013 SC 93.