Case Analysis

Vishaka & Ors v. State Of Rajasthan

AIR 1997 SC 3011: 1997 (5) SCALE 453: 1997 (6) SCC 241: (1997) Supp. 3 SCR 404

By- Joysree, Manvee, K.A Nithin Kishore, P. Nithin Pramod Kumar

Facts:

Bhanwari Devi was a welfare worker in an exceedingly program initiated by the government of Rajasthan targeting to regulate the evil of Child Marriage. Amid, the protest to prevent a child marriage in one Ramakant Gujjar’s family Bhanwari Devi tried her best to prevent that marriage. However, the wedding was successful in its completion although widespread protest. In 1992, to take revenge upon her, Ramakant Gujjar together with his 5 men gang raped her ahead of her husband. The department of local government initially tried to discourage them on filing the case on one cause or other but to her determination; she lodged a complaint against the accused Ramakant Gujjar and his 5 men. They were however, subjected to severe cruelty by the feminine police attendants even to the extent that for acquiring evidence her lehenga was demanded from her and she was left with nothing but her husband’s blood – stained dhoti. Adding to their gloom, their request to spend the night with in the station house was also refused.

The judicature acquitted the accused but she didn’t lose hope and seeing her determination all female social workers gave their support. All of them filed a writ petition in Supreme Court of India under the name ‘Vishakha’. The apex court was called upon to border guidelines for preventing molestation at Workplace.

Issue

The Supreme Court had inspected the case which highlighted the matter of Gender Inequality, insulting the modesty of ladies, sexual harassment at the workplace and rape as societal problems with substantial intensity. Thus, violence against women.

Judgment

Gender Equality finds place in Fundamental Rights protected under Article 14[1],19[2] & 21[3]. Harassment at Workplace may be a clear violation of gender Equality which successively violates these integral rights of the feminine class. 

Such harassment also leads to the liberty provided under Article 19(1)(g)[4]. The protection of females has become a basic minimum in all over the world. Within the absence of domestic law to regulate the evil, assistance might be rendered from International Conventions and Statues to the extent that it doesn’t contravenes with any domestic law or the don’t violates the spirit of Constitution. The Judiciary derived this authority from Article 51(c) and 253 r/w Entry 14 of the Union List of Seventh schedule of the Constitution. The court held that such violation therefore attracts the remedy u/a 32.

The Indian Judiciary has time and again reiterated upon the very fact that Right to life under Art. 21 also comprise Right to measure with dignity. Such said dignity could and will be protected with suitable guidelines. It’s of utmost importance to border some guidelines to fill the legislative vacuum and curb the evil. The apex court found authority in filling the legislative gap by making law so on maintain the Independence of Judiciary and its role envisaged under Beijing Statement of Principles and Independence of Judiciary in LAWASIA region which was signed by the justice of the Asia Pacific in 1995 as those representing the minimum standards necessary to be observed in maintain an independent and effective Judiciary.

The judiciary found the subsequent as source of the rules which might act as law of the land:

1. Convention on the Elimination of all styles of Discrimination against Women (Article 11 & 24)

2. General recommendations of CEDAW during this context (Article 11,22,23,24)

3. At the 4th World Conference on Women in Beijing, Govt. of India made a politician commitment to line up a National Commission at every level and in every sector that may take care of Women’s Rights.

The Supreme Court inter alia, clearly mentioned that the rules were to be treated as law declared u/a 141.

Analysis

The Court begins stating that gender equality could be a universally recognized basic right and includes the protection from harassment and right to figure with dignity. This right is globally accepted and international conventions and norms are significant to determine guidelines to confirm gender equality. International conventions and norms are often accustomed establish and enforce fundamental rights guaranteed within the Indian Constitution within the absence of enacted domestic law. By touching on Nilabati Behera v. State of Orissa, which held that a provision within the ICCPR was an applicable law remedy under Article 32 and was distinct from the private law remedy in torts, the Court held that international conventions and norms are to be read into the judiciary and constitutional scheme (particularly CEDAW and General Recommendations of CEDAW with relevancy Article 11). The Court recognized that domestic law didn’t adequately provide for cover of girls from harassment within the workplace, which it absolutely was necessary to look at guidelines to confirm the prevention of harassment of girls. First, the Court established a requirement of the employer or responsible persons within the workplace to stop or deter acts of harassment. Second, the Court defined harassment to incorporate unwelcome sexually-determined behavior, such as, physical contact and advances, a requirement or request for sexual favors, sexually-colored remarks, showing pornography, and the other physical, verbal, or non-verbal conduct of sexual nature. Third, the Court established that employers or responsible persons must take appropriate steps to stop harassment. These appropriate steps include expressly prohibiting harassment, providing appropriate work conditions with no hostility towards women, and adding rules/regulations prohibiting and providing penalties for harassment to this rules/regulations of government, public sector, and private sector conduct and discipline.

The Court additionally established appropriate responses to harassment. The employer must initiate appropriate criminal proceedings and ensure that victims and witnesses don’t seem to be victimized or discriminated. The employer must also initiate disciplinary action and build a complaint mechanism for appropriate redress of the complaint. This complaint mechanism should provide a Complaints Committee with a confidential support service that’s headed by a girl and involves a 3rd party conversant in the problem of harassment. Additionally, workers should be allowed to boost problems with harassment at meetings and there should be increased awareness of the rights of female employees. With relevancy third party perpetrators, the employer or responsible person must take all necessary steps to help the victim.


[1] Article 14 of the Constitution of India provides for equality before the law or equal protection of the laws within the territory of India. It states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

[2] Article 19 of the constitution provides freedom of speech which is the right to express one’s opinion freely without any fear through oral / written / electronic/ broadcasting / press.

[3] Article 21 reads as: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

[4] Article 19 (1) (g) of Constitution of India provides Right to practice any profession or to carry on any occupation, trade or business to all citizens subject to Art. 19 (6) which enumerates the nature of restriction that can be imposed by the state upon the above right of the citizens.

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