Malavika Harikumar & Osia Varghese, Students, School of Legal Studies, Cochin University of Science and Technology, Ernakulam, Kerala.
Introduction
The milestone decision of Vishakha & Ors v state of Rajasthan is a revolutionary and unprecedented judgment that acts as the grundnorm for myriads of laws that seeks to protect the rights of women especially working women till date. This writ petition was filed against the State of Rajasthan and the central government of India for the enforcement of fundamental rights of working women under Article 14, 19 and 21[1] by individual social activists and NGOs owing to the alleged brutal gang rape of Mrs Bhanwaridevi a grass root level social worker employed under the Women’s Development Project run by the government of Rajasthan. The incident of gang rape was the subject matter of a separate criminal action. The present writ petition was a class action by Bhanwaridevi and all social workers. The Supreme Court was called upon to frame guidelines to prevent sexual harassment of women at workplace and to fill in the lacunae in the law regarding this matter through a judicial process. Clearing all the legal conundrums the judgment was pronounced by a three-judge bench which held that fundamental rights under Articles 14, 15, 19 and 21 of the Indian Constitution are violated by the Act of sexual harassment and the apex court framed guidelines in taking practical steps to prevent sexual harassment.
Background
Reflecting upon a time before this verdict, when lack of guidelines against exploitation of women at workplace prevailed, it can be understood that persistent adhesion was made to sections 354, and 509 of IPC 1860, which depended upon the mercy of police’s interpretation whether there was an outraging of women’s modesty or not. Section 354[2] deals with criminal assault of women to outrage women’s modesty and section 509[3] punish an individual for using a word, gesture, or act intended to insult the modesty of women. These sections were so vague that it failed to address the issue of sexual harassment of women at workplace specifically. The principles embedded in the convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in this case also gave life and blood to Vishakha guidelines which were replaced in 2013 by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Critical Analysis
Vishakha and others v. State of Rajasthan is a path-breaking landmark judgment and is definitely a torchbearer of woman’s movement in India. The biggest irony is that in a country like India, where women are idolized as goddesses are the same country where crime, atrocities and violence against women are accelerating alarmingly. Women being perceived to be the keystone of every Indian family are actually caged between the four walls of their homes, restricting their wings to explore the world, and before Vishakha judgment it was a conscious decision to restrict themselves of the fear of being exploited by men outside of their safe heavens. This judgment acted as the air under their wing and to go out and work fearlessly. This judgment has contributed to increasing the percentage of women working in an office. The guidelines introduced guaranteed a safe working environment for a woman wishing to work without fearing any form of exploitation, ergo paving the way for gender equality.
The primary factor making this case one of a kind is the fact that this case witnessed the judiciary stepping into the shoe of the legislature and legislating law without any suit to judge. In this case, through judicial activism, the court has done a brilliant job, and it quite literally tried to uplift the status of women in modern India. The court, in this judgment, formulated an ex-ante policy for all institutions to prevent sexual harassment by invoking its power under Article 141[4]. By an innovative judicial law-making process, the Supreme Court had taken an efficacious step against the growing social menace of sexual harassment of women at the workplace. By filling the legislative vacuum through this process, the judiciary has not only set a strong precedent in India but also set a strong example to other nations.
This unprecedented judgment exclusively filled the glaring gap in domestic legislation due to lack of prohibitory laws against sexual harassment of women specifically in the working place. The prayer of this case, initiated through a class action was judicially interpreted in an elaborate way encompassing Vishakha guidelines under its umbrella, with particular reference to CEDAW principles. By filling the legislative vacuum in Domestic Avenue, this judicial pronouncement extended its ambit for guideline implementation by requesting the Central / State Governments to consider adopting suitable measures including legislation to ensure that the employers also observe the guidelines laid down by this order in Private Sector. The judiciary has taken due care not to omit that these must not be inconsistent with the protection of human rights act 1993. Hence reasonable deductions enlighten us that aims like focus on societal aberration in working place, assistance in finding suitable methods for the realization of the real concept of “gender equality” and to prevent sexual harassment of working women in all places were sufficiently met by this landmark judgment. Guidelines for formulation of a mandatory mechanism for every employer to redress grievances pertaining to workplace sexual harassment were also enumerated by the court.
The predominance of the legislature to enact laws for international covenant implementation in the domestic sphere by virtue of Article 253[5] read along with entry 14 of the union list in the seventh schedule of the Constitution were widely used in this verdict to incorporate Convention on Elimination of all Forms of Discrimination Against Women( hereinafter CEDAW). It was prudently mentioned that there is no inconsistency that proscribes application of CEDAW as it helps to enhance constitutional provisions and shields women’s rights. Special reference to the case of Nilabati Behera v. State of Orissa [6]was judiciously made here when a provision in the ICCPR was referred to in the domestic arena. In this cited case, it was expediently concluded that there is no reason why international conventions and norms cannot be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity. In the Vishakha’s case, the efforts for the incorporation of Article 11under CEDAW stating that state parties shall take all appropriate measures to eliminate discrimination against women about sexual harassment and violence of coercion in the workplace was successfully implemented as it does not create a room for inconsistency but will accelerate international harmony and upliftment of humanity. Together with Article 11 under CEDAW, some other sources of the guidelines were also considered the law of the land. Article 11, 22, 23 and 24 dealing on general recommendations of CEDAW was one such source. The other source comprised the 4th world conference on women in Beijing where the government of India made an official commitment to set up a National Commission at every level and in every sector that will look after Women’s Right.
Violation of fundamental rights under Articles 14, 15, 19(1)(g), and 21 of the Constitution pertaining to the right to equality, right to non-discrimination, right to practice one’s profession and rights to life respectively were duly considered by the court and after that affirmed that it is violation attracted remedy under Article 32 of Constitution. This litigation was filed in order to establish enforcement of fundamental rights under Article 32 of the Constitution invoking writ of mandamus and court directed to accompany it together with directions of prevention for effectiveness. The court’s initiative to formulate guidelines for effective redressal was a platform to address infringement of above-mentioned Articles and to fill the existing legislative vacuum. Respected Supreme Court rightly in its judgment said that the fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. It rightly pointed out further that suitable legislation paves the way for the safety and dignity of women, which are vital elements under the fundamental right of right to life.
Consequently contemplating need of the hour, the court effectively-outlined guidelines rather than legislation in this case involving; preventive steps, criminal proceedings of such offences, disciplinary action, complaint mechanism, organization of complaints committee, workers initiatives to raise complaints, spreading awareness of female employee rights, and adoption of suitable measures by centre or state government &legislation formulation for ensuring observance of guidelines by employees. Also, here employer responsibility to prevent or deter the commission of sexual offences during employment was primarily incorporated by the court to make him responsible for taking appropriate steps to prevent sexual harassment expediently. Court’s timely action in the inception of these guidelines was a result of inadequacy in existing civil and penal laws and due to the considerable delay in new legislation enactment. Such an immediate intervention is doubtlessly applaudable as thousands of women breaking stereotypes, clinging to these guidelines stepped out for works in workplaces.
Jurisprudential emphasis on Hohfeld’s analysis, by categorizing human interactions into horizontal correlations (have to be together) and diagonal opposites (cannot be together) can be referred to analyze this judgment [7]. Hohfeldian analysis enhances legal reasoning by allowing one to deduce one legal concept from another[8] . Here we can deduce Hohfeldian analysis concerning the trio; right, no right and duty among the eight jural correlations and opposites. Article 21 of the Indian Constitution prescribes right to life, and personal liberty and the same is infringed when a woman is sexually harassed in the workplace. Hence a woman holds a right against harassment in the workplace, and no person holds any unjustified right (no right) to deter her from enjoying this protection. Meanwhile, a sovereign and its institutions have a duty to protect. Thus the centre and the state government has explicit and implicit duty to protect women from sexual harassment in working place from any person who encroaches upon her and her privacy illegally.
The Vishakha decision confirms with Article 51A (e) of the Constitution which made it the fundamental duty of every citizen to renounce practices derogatory to the dignity of a woman. However, the judgment did not explicitly mention this. An extensive analysis through the guidelines under the code of conduct for the workplace is gender-biased from its inception, and even males can also be exploited sexually. Being gender-biased, it may also happen that women can use such provisions to their advantage maliciously tarnishing the accused’s image. Even the new act The Sexual Harassment of Woman at Workplace (prevention, prohibition and Redressal) Act, 2013, to extent fails to address this issue.
The failure in the establishment of the guidelines can be understood by the very famous #metoo movement in India as employers have not taken adequate steps to ensure a safe working environment for a woman. Also, sometimes this so-called employees and responsible persons acted recklessly and irresponsibly inviting circumstances of cruelty against a woman. Also, the act failed to address the issue of sexual harassment of women via electronic media exploiting woman to crimes like stalking and cyberbullying. Though there are limitations, when we weigh advantages over disadvantages, this judgment served needs effectively. These principles were adopted when violence against women arose in Bangladesh due to the failure of action by the government. The supreme court of Bangladesh here referred to Vishakha’s guidelines and provided detailed guidelines to be implemented by employers until Bangladesh government took action through legislation. Extending the scope of these guidelines, the supreme court of India later issued a clarification on 26th April 2004, making rules applicable to civil servants. The department of personnel and training has amended the Central Civil Services(classification, control and appeal) Rules 1965 as suggested by the supreme court inculcating under its purview vital provisions. From 2000 for effective implementation of the Vishakha guidelines, various organizations and commissions hold meetings and assessed its implementation. National commission for woman, a statutory and autonomous body has worked best to its extent to make this fruitful. Hence, in a nutshell, this judgment acted as grundnorm for woman protection in Indian domestic sphere to inculcate provisions for woman protection adhering present as well as future consequences to make this fruitful. Hence, in a nutshell, this judgment acted as grundnorm for woman protection in Indian domestic sphere to inculcate provisions for woman protection adhering present as well as future consequences to make this fruitful. Hence, in a nutshell, this judgment acted as grundnorm for woman protection in Indian domestic sphere to inculcate provisions for woman protection adhering present as well as future consequences to make this fruitful. Hence, in a nutshell, this judgment acted as grundnorm for woman protection in Indian domestic sphere to inculcate provisions for woman protection adhering present as well as future consequences to make this fruitful. Hence, in a nutshell, this judgment acted as grundnorm for woman protection in Indian domestic sphere to inculcate provisions for woman protection adhering present as well as future consequences.
Conclusion
The Vishakha judgment is both rational and practical. It involved many aspects that are usually rare in other judgments as it saw judiciary stepping into the shoes of the legislature, ratification of international conventions which contributes in making this judgment one of a kind and formulation of a specific guideline for protection of woman. This case though emerged from a gang rape against a woman, has fruitfully extended its purview to protect the whole woman community. This further strengthened the woman community mentally and physically to get out and to establish their equal participation in the job sector. This gem of a judgment emerged from a lack of legislative protections for the rights of the working woman, by making Indian Constitution and international conventions as its guiding light. Invoking the revolutionary process of judicial activism, the court drafted and passed an alternate legal protection guideline framework until legislation regarding that aspect is passed. The co-founder of Vishakha, Kavita Srivastava while appealing before the supreme court seeking multiple remedies said, “alongside the appeal challenging the trial court judgment, we also wanted a recognition for workers like Bhanwari Devi, who were honorary workers surviving on small wages”. When scrutinizing court’s verdict, it can be wholly understood that recognition of workers sought by Kavita Srivastava was duly achieved. Courts view that fundamental rights of equality and personal liberty should be protected and that no person shall be subjected to discrimination acted as a grundnorm for guideline formulation. It is also to be noted that Vishakha guidelines are now superseded by sexual harassment of women at the workplace (prevention, prohibition and redressal ) Act, 2013.
[1] Article 14, 15, 19 and 20, the consti.of India. [2] Sec.354, Indian Penal Code 1860. [3] Sec.509, Indian Penal Code 1860. [4] Article 141, the consti of India. [5] Article 253 ,the consti of inida. [6] 2 SCC 746 SCW 2366,1993. [7] Ritwik Guha Mustafi, Vishakha vs. state of Rajasthan – a case comment, 5thvoice.news,https://5thvoice.news/legalnews/NzAxMw==/Vishaka-vs-State-of-Rajasthan-A-case-comment,aug 15th aug.2020 ,11: 41 am. [8]R.D. Chaudhary, Hohfeld’s analysis of rights and duties, academia edu., https://www.academia.edu/29338633/ Hohfeld’s analysis of rights and duties.14th Aug. 2020, 10;45 pm.