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Vishaka - Case That Filled A Horrific Void


In the past few months not only has the virus that started in China gone to the levels that it became a pandemic, but also pushed the already never-ending sexism and sexual harassment to another level. With the homes now becoming the new cubicles, the inappropriate and indecent conduct women faced at their workplace has paved its way into their houses. House, the place that once gave comfort and where you ran from the stress of the work is no longer a haven.

Work From Home (WFH) was appreciated by many until it turned into something dreadful for a fraction of the population, a fraction that always faces such incidents. Women have always been subjugated to ill-treatment. From fighting to be allowed to step out from the four walls to fighting for equal pay for equal work, we have always been running in a hurdle race. The fight to be allowed to work was not just what we thought, now while still, some are fighting to be allowed to work, the others engage in a battle for a conducive work environment.

The stains of sexual harassment at workplace have seeped into every fabric of the Indian economy. Vishaka vs. State of Rajasthan (Vishaka)[1] was the first ever scene that compelled the Indian Supreme Court to use its powers and fill in the void. Due to the lack of any legislation in this area, the Supreme Court referred to international treaties that had not been incorporated as municipal law. The Court drew inspiration from the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Using the Convention signed by India in 1980, the Court defined sexual harassment in light of Articles 14, 15, 19 and 21.

The Vishaka case changed the face of laws protecting women in India. It became a landmark which led to the Protection of Women against Sexual Harassment at Workplace Act on 25th April, 2013. After many bills who could not get the Indian women any concrete laws, this Presidential assent was a festival for every female.

Workplace harassment has been in the system and the measures to shield women seem to fail miserably. In many cases, the victim does not report out of the fear of losing her job or due to the social shaming. Even in the cases that are reported, a large percentage of the respondents never attended a training workshop on sexual harassment, as required by the law. Raising grievances and calling out a power figure is no piece of cake, the HR does listen but the actions are guarded by the red hands. When jobs are stuck in a bottleneck, it is even simple for them to threaten and quieten the victim. It is made into a he said, she said.

The Vishaka case was the outcome of a public interest litigation (PIL) that was undertaken in Rajasthan. The PIL - Vishaka was filed in the Supreme Court after a social worker, Bhanwari Devi, at Women’s Development Project (WDP) was gang raped by gujjars for trying to stop the child marriage of a one-year-old girl.

Bhanwari Devi had initially filed a complaint but the accused were acquitted by a trial court. This injustice faced by the victim of a brutal crime spur anger in many. Thus, several women’s groups and NGOs filed the PIL in Supreme Court. The determination shown by some brave hearts enable women today to step into their workplace confidently and with a security of safety.

Despite the obstacles she had to go through, Bhanwari Devi did not deter her from the path leading to justice. The longest Constitution in the world even fell short to protect half of its citizens. The Supreme Court banked on the International Bill of Rights[2] to give guidelines that will help prevent sexual harassment of women at workplace and to provide redressal to victims.

Article 141 states that all the directions given by the Supreme Court are treated as law therefore the guidelines given in the Vishaka case were to be binding and enforceable as law until some suitable legislation was undertaken.

The guidelines[3] issued by the Court were:

❏ The employer and/or other responsible people in a workplace are duty-bound to prevent or deter sexual harassment and set up processes to resolve, settle, or prosecute in such cases.

❏ Supreme Court gave the first verifiable definition of ‘sexual harassment’. It stated that ‘such unwelcome sexually determined behaviour (whether directly or by implication) such as: physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of sexual nature’.[4]

❏ All employers or persons in charge of workplaces must strive to prevent sexual harassment and, if any act amounts to a specific offence under the Indian Penal Code, 1860 (the IPC) or any other law, they must take appropriate action to punish the guilty.

❏ Even if the act is not considered a legal offence or a breach of service rules, the employer should create appropriate mechanisms so that the complaint is addressed and redressed in a time-bound manner.

❏ This complaint mechanism must, if necessary, provide a complaints committee, a special counsellor or other support service, such as ensuring confidentiality. The complaints committee should be headed by a woman, and at least half its members must be women. Also, to pre-empt any undue pressure from senior levels, the complaints committee must involve a third party ( such as an NGO) familiar with the challenges of sexual harassment.

❏ The employer must sensitize female employees to their rights and prominently notify the court’s guidelines.

❏ Even if a third party is responsible for sexual harassment, the employer must take all steps necessary to support the victim.

❏ The central and state governments should adopt suitable measures to ensure that private sector employers implement the guidelines.

The contactless work hours have proved to produce contrary results and lead to a rise in the cases of indecent workplace behavior towards women. The pandemic has been hard on everyone and a couple of people and businesses have succumbed to disgraceful means.

The Vishaka case in 1992, paved the way for other women to seek help from the guidelines given by the Court. In the Apparel Export Promotion Council vs. A.K. Chopra[5] (Chopra) in 1999, the Supreme Court further stated that ‘physical contact was not a prerequisite of sexual harassment, the effects of mental harassment can be equally damaging’.

The Vishaka case came to the aid of an Army School principal in the D.S. Grewal vs. Vimmi Joshi[6]. A committee was set-up to investigate the charges against a colonel in the Indian Army. The principal did not complain against the inappropriate letters and advances made by the colonel in fear of losing her job. After she did lose her job, a case was filed and the Supreme Court ordered a committee to be formed. The committee found the colonel guilty and he was brought to justice.

The Kerala High Court in Puthuppan vs. K.S. Girija[7] posited that ‘the quality of womanhood does not change by the place where a woman works, be it private or public.’

When the world is fighting COVID-19, hospitals have become a second home for many. The place that is curing and providing solace to many is itself infected with another disease. The contagious virus is not even a cure for the act which is unethical, cruel, and illegal. The cases of COVID affected people rise and so does the harassment female doctors and nurses face. Vaccine for Coronavirus is not the only one we need.

Offensives against women are endless. The universe is vast and so are the offenders. With each step, we either move forward or are pushed back. The Act lacks effectiveness, some provisions are not properly implemented. Still, from having no laws to protect women in their work environment, we have come a long way, now there is an active Act in the area. We scored heights, marched four steps ahead, and then in another moment, we were amidst a desert storm, pushing us two steps back. One thing that has been consistent in all this, is the determination and courage. Women have never averted from their path, because it is still two steps ahead.

[1] AIR 1997 SC 3011 [2] It includes Universal Declaration of Human Rights(1948), International Covenant on Civil and Political Rights(1966), International Covenant on Economic, Social and Cultural Rights(1966). [3] 10 Judgements that Changed India by Zia Mody [4] Vishaka at paragraph 16. [5] AIR 1999 SC 625 [6] (2009) 2 SCC 210 [7] 2008 (3) KLJ 416

The author of this post is Anandita Rajnish

The views expressed in this article belong to the author/s and do not necessarily reflect those of the JCLJ Blog. We welcome comments and contributions to this blog – please comment below.

#Vishaka #SexualHarassment #WorkPlace #BhanwariDevi

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