BACKGROUND
The case took place on 22 September 1992, where a low-caste woman named Bhanwari Devi was allegedly gang-raped by high-caste neighbours in the western Indian state of Rajasthan.
A Dalit woman employed with the rural development programme of the Government of Rajasthan was brutally gang-raped on account of her efforts to curb the practice of child marriage, when she and her husband were attacked while working in the fields. Two of the men pinned her husband down and the remaining three took turns to rape her.
The police didn’t take her complaint seriously and her medical test was conducted 52 hours later, when it should have been done within 24 hours. Her scratches and bruises were not recorded, and her complaints of physical discomfort were ignored.
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The Vishaka Judgment
After local newspapers reported Bhanwari Devi’s plight and women’s activists protested, the case was handed over to the Central Bureau of Investigation (CBI).
The five accused were finally arrested after more than a year of committing the crime and charged with harassment, assault, conspiracy and gang rape.
The Supreme Court, for the first time, acknowledged the legislative inadequacy and recognised workplace sexual harassment as a human rights violation.
In framing the Vishaka Guidelines, the Supreme Court placed reliance on the Convention on the Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of the United Nations, 1979, which India has both signed and ratified.
As per the Vishaka Judgment, the Vishaka Guidelines issued under Article 32 of the Constitution, until such time as the legislative framework on the subject has been enacted, would have the effect of law and would be mandatorily followed by organisations in both the private and government sectors.
As per the judgment, “Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a. Physical contact and advances
b. A demand or request for sexual favours;
c. Sexually coloured remarks;
d. Showing pornography;
e. Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that, in relation to the victim’s employment or work, such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace. It is discriminatory, for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work or when it creates a hostile working environment.
Vishaka Guidelines
Safer working environment- It is the duty of each employer to provide a safe working environment for each and every employee working in the organisation through appropriate efforts and actions.
Duty of the employer- It is the obligation of the employer to file a complaint if the conduct towards an employee amounts to a criminal offence which is punishable under the Indian Penal Code.
Complaint redressal committee- It is mandatory for all organisations to set up a complaints committee so that employees’ complaints are dealt with properly.
Employer’s assistance- If the employee is sexually harassed or tortured by a third party, an employer should assist the employee in every possible manner.
Awareness- It is the duty of the employer to spread awareness in the organisation with regard to matters pertaining to sexual harassment and the safety of women.
Duty of government- The guidelines urged the Centre and the State Governments to pass the necessary legislation so as to ensure that the private sector is also bound by these guidelines.
The Vishaka Guidelines were later replaced by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013
Apart from the definition mentioned in the Vishaka Guidelines, the Act additionally mentions five circumstances that amount to sexual harassment:
promise of preferential treatment in her employment
threat of detrimental treatment
threat to her present or future employment status
interference with work or creating a hostile work environment
humiliating treatment likely to affect her health or safety
WORKPLACE
Includes-
a. any department, organisation, institution, undertaking, establishment, unit which is an establishment owned, controlled or financed by the Government or local authority.
b. any private sector organisation or a private venture, society, trust, non-government organisation, vocational, educational, entertainment, industrial
c. hospitals or nursing homes
d. any sports institution, stadium, sports complex or competition or games venue
e. any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey
f. a dwelling place or a house
Complaints
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Every employer is required to constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees.
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An ICC constituted by an organisation should have a minimum of 4 members including an external member and at least one-half of the ICC members should be women.
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The District Officer is required to constitute a Local Complaint Committee in each district and, if required, at the block level.
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The Complaints Committees have the powers of civil courts in respect of summoning and examining any person and production of documents.
Duty of Government to widen the scope of these Guidelines
The guidelines also urged the Centre and the State Governments to pass the necessary legislation so as to ensure that the private sector is also bound by these guidelines. This would help in the growth and prosperity of women as well as the nation as a whole.
The Vishaka Guidelines were later replaced by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The new Act passed in 2013 broadens the definition of an aggrieved woman to include women of all ages in order to suit modern-day conditions. It also broadens the scope of the term workplace which was earlier limited only to the traditional office set-up.
Conclusion
The Constitution of India is the supreme law of our country and must be protected and respected in every instance. The fundamental rights of equality and personal liberty should be protected and citizens of our country should not be discriminated against on any grounds. Hence, it is legal as well as a moral duty to provide a safer work environment for the prosperity of all.
The Vishaka Guidelines are a set of guidelines that were instituted by the Supreme Court of India to ensure the safety of women at workplaces and lay down the guidelines for dealing with cases related to sexual harassment at the workplace. The Bhanwari Devi case is the most significant landmark case in the history of cases involving sexual harassment of women.
The Vishaka Guidelines are a pioneering step taken to ensure the safety of women. According to the guidelines, the employers of organisations are responsible for taking preventive actions to stop sexual harassment at workplaces and to file a complaint if such an act is found to have happened with an employee.
This would ensure that women who are sexually harassed get the required support, including financial support from their employers, so that they are able to file a case in court and be represented by competent lawyers.
The Vishaka Guidelines have now been superseded by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013.
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