sexual harrasment
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This article is written by Arushi Chopra, from Symbiosis Law School, Noida. This article deals with the developments of the law regarding Vishaka Guidelines against Sexual Harassment of women at workplaces.

Introduction

“Any society that fails to harness the energy and creativity of its women is at a huge disadvantage in the modern world”

Women comprise almost fifty per cent of the population of India and are now seen to be working in almost all the sectors and areas. There is a presence of women in the jobs and areas which were earlier considered to be exclusively reserved for men, and women never dared to choose such areas as their profession. 

This positive change in the society was followed by a series of horrifying incidents where women were raped and harassed by men. Women were treated as objects and they were subjected to a lot of physical and mental torture at their workplaces. This violated the fundamental rights of the women provided under the Constitution of India.

There was an active violation of the right to equality provided under Articles 14 of the Indian Constitution. In this sense, there was a violation of Article 15 and Article 16 which provided that there would be no discrimination on the basis of caste, religion, sex, and the equality of opportunity respectively. 

It became necessary to ensure that the women are treated properly and their dignity is not harmed while they are working. The horrifying incident where Bhanwari Devi, a government employee was harassed by a group of people paved the way to the well-known Vishaka Guidelines.

Historical Background

The Bhanwari Devi case

The Bhanwari Devi case is one of the most significant cases among the cases of women’s safety as it paved the way to the Vishaka guidelines. The developments of the case are elucidated as under.

Facts of the case

Bhanwari Devi was a Dalit government employee who was engaged in spreading awareness about hygiene and education and running campaigns against dowry and child marriage. 

As a part of her employment, she was helping a young girl who was forced to marry at a young age by her parents. 

However, there were powerful political personalities and influential people involved and she failed to stop the child marriage from happening. She tried to resist and carried out a rally but she was not able to stop the marriage from happening. In order to take revenge for the rallies and campaigns instituted against them, a group of people attacked Bhanwari Devi when she was walking along the road with her husband. She was gang-raped by these men.

The tactics played

Bhanwari Devi filed a criminal case of rape against these men. However, she was not taken seriously by the policemen and other law officers. It took the policemen fifty-two hours to file the complaint. 

Also, the Rajasthan High Court acquitted all these men of rape on various grounds that women cannot be gang-raped in front of her husband and that the village head cannot be indulging in such acts.

The Rajasthan High Court convicted the five men of assault whose degree of punishment is much lesser than the crime of rape. 

The Aftermath

The judgement by the Rajasthan High Court gave rise to a series of rallies and protests by various women safety organisations and the general public. The protesters were lathi-charged by the police. However, the crowd did not stop protesting and the people were determined to force the government and the legal system to provide justice to Bhanwari Devi.

What followed was the case of Vishaka and Ors v. the State of Rajasthan which resulted in the formation of the Vishaka guidelines.

Vishaka and Ors. v. State of Rajasthan

A group of non-profit organisations who worked towards the safety of women filed a petition in the Supreme Court of India seeking justice for Bhanwari Devi and thereby, the appropriate punishment for the men involved in gang rape. They filed public interest litigation by the name of Vishaka and contended that the fundamental rights of Bhanwari Devi were violated. They also sought a new set of guidelines for the protection of women.

The NGOs also mentioned the point of safety of women at workplaces in the PIL filed owing to the fact that the employer of Bhanwari Devi did not accept any responsibility though the reason that Bhanwari Devi was raped was due to the work that she was supposed to perform as part of her employment. Hence, the PIL sought to develop a new set of guidelines for the safety of women at workplaces.

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The Judgement

The judgement was given by a 3 Judge bench which held that the fundamental rights provided under Article 14, Article 15, Article 19(1)(g) and Article 21 of the Constitution of India are violated by the act of sexual harassment.

The court brought out the Vishaka guidelines for the protection of women at their workplaces and providing a safer working environment to the women.

The Vishaka Guidelines

The Vishaka guidelines were a set of guidelines that were intended to protect women at the workplace. These were instituted by the Supreme Court of India in the year 1997. These are procedural in nature and state the method that is to be followed while dealing with cases related to the sexual harassment of women.

Objectives and need for the Vishaka guidelines

The Vishaka guidelines were instituted due to the series of cases of sexual harassment that were registered and the rallies and campaigns that were taking place on a regular basis by various social groups who were seeking protection of women in India. 

After the Bhanwari Devi incident, many women groups came on streets demanding recognition of their rights as citizens of India and urging the government to take necessary actions to prevent ill-treatment of women at workplaces.

At that time, the legal system of our country did not have proper legislation that could ensure the safety of women at workplaces and provide just and fair punishment to people who indulge in the heinous crimes of rape and sexual harassment. The rules that were provided by the legal system at the time were often used by the men who were accused of Sexually Harassing the women to their advantage.

Also, there was no rule regarding the obligation of employer to provide support and assistance to his employee who is a victim of sexual harassment. The employers would throw these women victims out of the jobs to escape the liability and further consequences. This would leave the victim hopeless and unsecured. 

With the growing number of crimes against women being reported, there was an urgent need for a new set of laws that punishes the wrongdoers and ensures that women are protected at their workplaces but a new set of legislation would take a lot of time to be enacted. 

Thus, the Vishaka guidelines came into existence to provide a set of guidelines to prevent sexual harassment of women at workplaces and ensure that the people who indulge in the act of sexual harassment are given a justifiable punishment.

Features of the Vishaka guidelines

The main ingredients of the guidelines issued by the Hon’ble Supreme Court of India are elucidated as follows. 

Definition of Sexual Harassment 

The guidelines issued by the Supreme Court widens the meaning and scope of sexual harassment. It defines sexual harassment as an unwanted sexual determination which is directly or impliedly intended to cause the following: 

  1. Physical contact or advances.
  2. A demand or request for sexual favours.
  3. Sexually coloured remarks.
  4. Showing pornography.
  5. Any other unwelcome conduct whether it is physical, verbal or non-verbal. 

Provide a 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 to grow and prosper. This involves taking adequate steps towards protecting the interest of the women employees and ensuring that none of the employees indulges in the practice of sexual harassment. Appropriate disciplinary action must be taken by the employer if any case regarding sexual harassment or ill-treatment of a woman employee is found. 

Duty of the employer to file a complaint 

The guidelines also lay down 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. The employer needs to initiate an action and ensure that the witnesses are not further victimised. 

Complaint redressal committee 

The guidelines make it mandatory for all organisations to set up a complaint redressal committee in order to ensure that the complaints of the employees are dealt with properly and suitable action is taken in response to such a complaint. 

Employer to assist the employee if she is sexually harassed 

If the employee is sexually harassed or tortured by a third party, like in the case of Bhanwari Devi, an employer should assist the employee in every possible manner. This was not the case in the Bhanwari Devi case where the employer denied all responsibilities and did not assist Bhanwari Devi in attaining justice. 

The guidelines provide that the employers are required to assist the employees in terms of both preventive actions and support to these victims. 

Duty of employer to spread awareness 

It is also the duty of the employer to spread awareness in his organisation with regard to the matters pertaining to sexual harassment and the safety of women. This can be done by notifying the employees time as well as conducting workshops and devising other interactive ways to make the female employees aware of their rights. 

Duty of government to widen the scope of these guidelines 

The guidelines also urge the centre and the state government 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 the women as well as the nation as a whole. 

The Vishaka guidelines were later on 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 aggrieved women to involve women of all ages, in order to suit the 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 the 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 women to prosper. 

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 lays down the guidelines for dealing with the cases that are 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 is a pioneering step taken to ensure the safety of women. According to the guidelines, the employers of the organisations are responsible to take preventive actions to stop sexual harassment at workplaces and to file a complaint if such Act is found to have happened with the employee. 

This would ensure that the women who are sexually harassed get the required support in terms of money from their employers so that they are able to file a case in the court and be represented by competent lawyers. 

Vishaka guidelines have now been superseded by the Sexual Harassment of women at the workplace (prevention, prohibition and redressal) Act, 2013. However, the Vishaka guidelines are the most significant set of guidelines which are believed to have helped in the development of the Act of 2013. 


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