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ACKNOWEDGEMENT
I have endeavored to attempt this project. However, it would not
have been feasible without the valuable support and guidance of
123456789. I would like to extend my sincere thanks to her.
I am also highly indebted to 123456789, for their patient cooperation as well as for providing necessary information & also for
their support in completing this project.
My thanks and appreciations also go to my co-intern who gave their
valuable insight and help in developing this project.
ABSTRACT
Vishaka v. State of Rajasthan case based on Sexual Harassment, Sexual Harassment
means Sexual harassment in the workplace is usually associated with a heterosexual
employee making unwelcome sexual advances to another heterosexual employee of
the opposite gender. There are also cases where a homosexual employee harasses an
employee of the same sex. But can a heterosexual employee sexually harass another
heterosexual employee of the same gender
Sexual harassment in India is termed Eve teasing and is described as: unwelcome
sexual gesture or behaviour whether directly or indirectly as sexually coloured
remarks; physical contact and advances, showing pornography; a demand or request
for sexual favours; any other unwelcome physical, verbal/non-verbal conduct being
sexual in nature. The critical factor is the unwelcomeness of the behaviour, thereby
making the impact of such actions on the recipient more relevant rather than intent of
the perpetrator. According to Indias constitution, sexual harassment infringes the
fundamental right of a woman to gender equality under Article 14 of the Constitution
of India and her right to life and live with dignity under Article 21 of the
Constitution. Although there is no specific law against sexual harassment at workplace
in India.
As observed by Justice Arjit Pasayat: While a murderer destroys the physical frame
of the victim, a rapist degrades and defiles the soul of a helpless female.
In this case Supreme Court laid down the following guidelines which recognized it not
only as a private injury to an individual woman but also as the violation of her
fundamental rights. These guidelines are significant because for the first time sexual
harassment is identified as a separate category of legally prohibited behavior. These
are subjected to all workplaces until any other legislation is passed by parliament in
this regardbased on the Vishaka guidelines, the Government of India, together with
the civil society has proposed several draft laws between 2005 and 2010. However,
the latest draft Protection of Women against the Sexual Harassment at the Workplace
Bill, 2010, introduced in the Parliament on December 7, 2010 is entirely a
government version; the absence of civil society consultation on this draft is acute.
CONTENT
Page No.
05
2. Introduction
08
10
10
5. The Vishakha guidelines
11
6. Critical analysis of Judgement given in VISHAKHA CASE.
13
7. The Protection of Women against Sexual Harassment at Work Place Bill, 2016
15
8. Conclusion
17
9. References
19
IMPORTENCE
From this project we will understand making of vishakha guideline and their
neccesity.we will understand how this could happen that law made by judgement
without amending. We will see how much crime this law can privale or how much
rights women has got against sexual harrasment on workplace.
SCOPE OF THE STUDY
In this project we will mainly deal will guideline given by Judges in respect of
Banwari case, so this project will be limited upto law against sexual harrasment of
women.
LITERATURE REVIEW
In my project i have included some relevent things from articles
FRAGILE
SPACE:
SEXUAL
HARASSMENT
AND
THE
very survival. According to him women are harder than men; Indias sex ratio has
declined from 972 in 1901 to 927, putting 50 million in the missing category. He has
discussed the Girl Child Scheme, which is aimed at transforming the social
perception of girls from curses and liabilities to sought-after family members,
especially among the very poor who live below the poverty line.
According to auther, Sexual harassment is no longer the novelty it was in the 1970s
and early 1980s. It is now recognized for what it is - an abuse of power most often
perpetuated by men against women. Anita Hill's experience has confirmed for the
world that allegations of sexual harassment are to be taken seriously. Hopefully,
considerable progress has been made in this jurisdiction since 1985 when the Equal
Opportunities Tribunal virtually apologised to a defendant for finding him guilty of
sexual harassment. It is time to stop congratulating ourselves that the problem is now
acknowledged and that procedures exist to cope with it. These procedures must be
refined so that they are no longer the blunt instruments they once were. Refining the
regulation of sexual harassment must be placed high on the agenda of legal change. So
in this article auther has given comparision between old laws and new laws regarding
sexual offences, that have I added in my project.
In this article, it was contended that, The United States and India, represents an
opportunity for feminists to work together in order to confront a pressing problem.
Valuable comparisons educate feminists in both India and the United States about their
respective sexual harassment protections and how those protections function
simultaneously to help and hurt women in the workplace.
Recent years have witnessed a novel culture dominate the workings of the Indian
judiciary and basically this has been discussed in yhis article. A process that began
nearly twenty-five years ago has changed the internal dynamics of Indias
constitutional democracy. Authored by the Indian Supreme Court, the novelties have
refashioned the institutional order in a manner historically unknown to constitutional
democracies. The new order has seen the emergence of the Court in stature,
domestically and beyond. The least dangerous branch in history became Indias
most assertive organ.For some the judiciary is the sanctuary of Indian humanity and
for others it is the worlds most powerful court. And some other issues also been
discussed.
RESEARCH METHODOLOGY
The method of Doctrinal reasearch has been followed.
HYPOTHESIS
In this project we assume that the gudelines given in Judgement has good effect to
prevent such type of crime.there were no seperate law against sexual harrasment ,and
these guideline came as a law given by Judges.These guideline are enough to get
justice in such type of cases.
SUMMARY OF THE CASE
a) Judgement
In disposing of the writ petition with directions, it was held that: The fundamental
right to carry on any occupation, trade or profession depends on the availability of a
safe working environment. The right to life means life with dignity. The primary
responsibility for ensuring such safety and dignity through suitable legislation, and the
creation of a mechanism for its enforcement, belongs to the legislature and the
executive. When, however, instances of sexual harassment resulting in violations of
Arts 14, 19 and 21 are brought under Art 32, effective redress requires that some
guidelines for the protection of these rights should be laid down to fill the legislative
vacuum.1
Quoram
J.S. Verma C.J.I.
Mrs. Sujata V. Manohar
B.N. Kirpal. JJ.
Dr. A.S. Anand, C.J.I.
V. N. Khare, J.
Statutes referred
Constitution of India Article 14 (the right to equality) Article 15 (the right to non
discrimination) Article 19(1)(g) (the right to practise ones profession) Article 21
(the right to life) Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) Article 11 ([State] takes all appropriate measures to
eliminate discrimination against women in the field of employment) Article 24
([State shall] undertake to adopt all necessary measures at the national level aimed at
1http://www.dnaindia.com/india/report-explained-vishakha-judgment-on-sexualharassment-at-workplace-1923309
Cases referred
10
throughout the night. Even in past midnight policemen asked Bhanwari to leave her
lehenga behind as evidence and return to her village. She was left with only her
husbands bloodstained dhoti to wear.
Accused was acquitted by trial court but Bhanwari was determined to fight further and
get justice. She said that she had nothing to be ashamed of and that the men should be
ashamed due to what they had done, so she took the case in High Court. On December
1993, the High Court made a statement, it is a case of gang-rape which was
committed out of vengeance.
This sentence provoked womens groups and NGOs to file a petition in the Supreme
Court of India. The groups had filed a petition in the Supreme Court of India, under
the name Vishaka, asking the court to give certain directions regarding the sexual
harassment that women face at the workplace. The result is the Supreme Court
judgement, which came on 13th August 1997, and named as the Vishaka guidelines.
ARGUMENTS
The Counsels in the Supreme Court argued for implementing the sexual harassment
prevention guidelines that sexual harassment of women at workplace violates Article
14, 15 and 21 the Constitution of India and violate the constitutional rights of woman.
They argued that gender quality includes protection from sexual harassment and right
to work with dignity, which is a universally recognized basic human right. The
common minimum requirement of this right has received global acceptance. The
international conventions and norms are therefore of great significance in the
formulation of the guidelines to achieve this purpose.
The obligation of the court under Art. 32 3 of the Constitution of the enforcement of
these fundamental rights in the absence of legislation must be viewed along with the
role of judiciary envisaged in the Beijing statement of principles of the independence
of the judiciary in the LAWASIA region. There principles of the Independence of the
judiciary in the LAWASIA region. There principles were accepted by the Chief
3http://www.indiankanoon.org/doc/237570/
11
Justices of the Asia and the pacific at Beijing in 1995 as those representing the
minimum standards necessary to be observed in order to maintain the independence
and effective functioning of the judiciary. The objectives of the judiciary mentioned in
the Beijing statement are:
The objectives and functions of the judiciary include following:
(a) To ensure that all persons are able to live securely under the Rule of Law.
(b)To promote, within the proper limits of the judicial function, the observance and the
attainment of human rights; and
(c)To administer the law impartially among persons and between persons and the
state.
RATIO DECIDENDI
The present writ petition has been brought as a class action by a group of certain
social activitists and NGOs with the aim of focusing attention towards their sociatal
abberration and assisting in finding suitable methods for realisation of true concept of
gender equalityand to prevent sexual harrasment of working women in all work
places through judicial process,to fill the vacuum in existing legisletion.4
ORBITOR DICTA
At the Fourth World Conference on Women in Beijing, the Government of India has
also made an official commitment, inter alia, to formulate and operationalize a
national policy on women which will continuously guide and inform action at every
level and in every sector; to set up a Commission for Womens to act as a public
defender of womens human rights; to institutionalise a national level mechanism to
monitor the implementation of the Platform for Action..5
4http://www.slideshare.net/shobhitshukla904/admin-law-presentation
5http://www.iiap.res.in/files/VisakaVsRajasthan_1997.pdf
12
CONCLUSION
Vishakha guidelines against sexual harassment prove to be ineffective if they are not
followed up by prompt action and dissemination within the country. However, the i
still
feels
that
specific
customised
guidelines
for
our
country
prove
advantageous.Unions have a duty to make members aware of the nature and scope of
the problems involved, to take action to prevent sexual harassment occurring and to
set up a grievance procedure to deal with it. Male trade unionists will need to examine
their behaviour towards women at work and in the union. The more the problem of
sexual harassment is discussed in the open by the trade unionists, both female and
male, the easier it will become to eliminate it from the workplace.
Vishakha guideline initiatives
There were no formal guidelines for how an incidents involving sexual harassment at
workplace should be dealt by an employer. Women experiencing sexual harassment at
workplace had to lodge a complaint under Section 354 of the Indian Penal Code that
deals with the criminal assault of women to outrage womens modesty, and Section
509 that punishes an individual or individuals for using a word, gesture or act
intended to insult the modesty of a woman.After that Bhanwari devi vs state of
Rajasthn happened in which a social worker was repes by men just because she tries to
stop child marriage.In respect to that a party of social worker women loaded complain
for not having enough guideline for sexual harrasment cases.
Sexual Harassment at the Workplace (SHW) has remained one of the central concerns
of the womens movement in India since the early 80s. During the 1980s, militant
action by the Forum Against Oppression of Women (Mumbai) against the sexual
harassment of nurses in public and private hospitals by patients and their male
relatives, ward-boys and other hospital staff; of air-hostesses by their colleagues and
passengers;
of
teachers
by
their
colleagues,
principals
and
management
13
1991). But this trivialisation did not deter the womens rights activists. More and more
working women started taking systematic action against SHW. During the 1990s, the
most controversial and brutal gang rape at the workplace involved a Rajasthan state
government employee who tried to prevent child marriage as part of her duties as a
worker of the Women Development Programme. The feudal patriarchs who were
enraged by her (in their words: a lowly woman from a poor and potter community)
guts decided to teach her a lesson and raped her repeatedly (Samhita, 2001). After an
extremely humiliating legal battle in the Rajasthan High Court the rape survivor did
not get justice and the rapists educated and upper caste affluent men -- were
allowed to go free. This enraged a womens rights group called Vishakha that filed PIL
in the Supreme Court of India (Combat Law, 2003).
Some noteworthy complaints of SHW that came into the national limelight were filed
by:
Rupan Deo Bajaj, an IAS officer in Chandigarh, against super cop K.P.S Gill.
An activist from the All India Democratic Women's Association, against the
environment minister in Dehra Dun.
Before 1997, women experiencing SHW had to lodge a complaint under Section 354
of the Indian Penal Code that deals with the criminal assault of women to outrage
womens modesty, and Section 509 that punishes individual/individuals for using a
'word, gesture or act intended to insult the modesty of a woman'. These sections left
the interpretation of 'outraging women's modesty' to the discretion of the police
officer.
In 1997, the Supreme Court passed a landmark judgment in the Vishakha case laying
down guidelines to be followed by establishments in dealing with complaints about
sexual harassment. The court stated that these guidelines were to be implemented until
legislation is passed to deal with the issue (Mathew, 2002).
14
15
Physical contact
Showing pornography
The Supreme Court directive provided the legitimate space for the hidden truth about
SHW to surface; earlier one only heard about victim-blaming, witch-hunting and
blackmailing. Now women are fighting back tooth and nail. The electronic and print
media have become extremely responsive to the issue of SHW. My firsthand
experiences with providing support to women survivors of SHW has convinced me
that we need to counter the myths about SHW with concrete facts, case studies and a
database.
The
Vishakha
guidelines
categorically
state
that:
All women who draw a regular salary, receive an honorarium, or work in a voluntary
capacity in the government, private sector or unorganised sector come under the
purview of these guidelines.
Complaints mechanism
16
A woman must head the complaints committee and no less than half its
members should be women.
Preventive steps
Employers responsibilities
17
Recognise the liability of the company, etc, for sexual harassment by the
employees or management. Employers are not necessarily insulated from that
liability because they were not aware of sexual harassment by staff.
and
harassment.
as
an
offence.
to
the
issues
faced
by
women.
The range of penalties that the complaints committee can levy against the
offender should include:
18
should
also
be
aware
of
the
policy.
8. Conducting periodic training for all employees, with active involvement of the
complaints committee.
Employers duty
Freedom from sexual harassment is a condition of work that an employee is entitled to
expect. Womens rights at the workplace are human rights.
CRITICAL ANALYSIS OF JUDGEMENT GIVEN IN VISHAKHA CASE
JUDGEMENTThe judgment was delivered by Chief Justice J.S.Verma, on behalf of Justice Sujata
Manohar and Justice B.N. Kirpal, on a writ petition which was filed by Vishaka. The
court observed that it is fundamental right of working woman under article 14 6, 197(1)
(g), and 218 of the constitution to carry on any occupation, trade or profession but it
should be ensured that trader should provide a safe working environment at work
place. It was of the view that the fundamental right to carry on any occupation, trade
or profession depends on the availability of a safe working environment. The right
to life means life with dignity.
The Supreme Court referred to various international human right 9 instruments,
including CEDAW10 and observed that every woman has a fundamental right to
freedom from Sexual Harassment. Supreme Court has laid down guidelines to be
followed by employees to prevent sexual harassment of women employees. The
guidelines are mandatory till they are replaced by legislation.
19
This is implicit from Article 5111 and the enabling power of the Parliament to enact
laws for implementing the International Conventions and norms by virtue of Article
25312 read with entry 14 of the union list in Seventh of the Constitution.
Court ruled out that at every workplace there should be a sexual code and there should
be a proper mechanism to enforce cases which fall under the ambit of this sexual
harassment code. The main objective of this aim is to facilitate the gender equality and
to prevent discrimination for women at the workplace. The Supreme Court in absence
of any enacted law was called upon to provide for effective enforcement of basic
human rights of gender equality and guarantee against sexual harassment.
Supreme Court made the definition of sexually determined behavior in a wider sense
by including any kind of acts which include physical contact, demand for sexual
favors, sexually remarks, showing pornography, verbal or non verbal conduct of a
sexual nature with women.The Supreme Court stated that the guidelines for the sexual
code at every workplace are to be treated as a declaration of law in accordance with
Article 14113 of the constitution. And these rights should not be based on prejudices
any right available under the protection of Human Right Act 1993. The guidelines and
norms specified by the Supreme Court include the duty of employer in work place and
other institutions, preventive steps to be taken in this regard, criminal proceedings,
disciplinary action, complaints mechanism and complaints committee, to encourage
workers initiative, creating awareness and against third party harassment etc.
CRITICAL ANALYSIS
The Supreme Court referred to the definition of Sexual harassment suggest in Vishaka
vs. State of Rajasthan14. Supreme Court give Sexual Harassment definition 15 shows
11http://www.indiankanoon.org/doc/237570/
12http://www.indiankanoon.org/doc/237570/
13Article 141 of the constitution.(Law declared by Supreme Court to be binding on all courts The law
declared by the Supreme Court shall be binding on all courts within the territory of India)
14 AIR 1997 SCC 3011 at 3014
15www.indianknoon.org/doc/1031794/ para16 point2
20
21
22
district and block levels. A District Officer (District Collector or Deputy Collector),
shall be responsible for facilitating and monitoring the activities under the Act.
In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW
and laid down specific guidelines on the prevention of sexual harassment of women at
the work place. The Vishaka guidelines defined sexual harassment and codified
preventive measures and redressal mechanisms to be undertaken by employers.
A draft Bill was circulated by the Ministry of Women and Child Development for
public feedback in 2007. The current Bill establishes a framework to be followed by
all employers to address the issue of sexual harassment.
The Bill defines sexual harassment at the work place and creates a mechanism
for redressal of complaints. It also provides safeguards against false or
malicious charges.
The Complaints Committees have the powers of civil courts for gathering
evidence.
23
The Internal Complaints Committee has been given the powers of a civil
court. However, it does not require members with a legal background nor are
there any provisions for legal training.
The Bill provides for action against the complainant in case of a false or
malicious complaint. This could deter victims from filing complaints.
Two different bodies are called Local Complaints Committee. The Bill does
not clearly demarcate the jurisdiction, composition and functions of these
Committees.
Unlike sexual harassment legislation in many other countries, this Bill does not
provide protection to men.
181997 IVAD Delhi 646, 68 (1997) DLT 303, 1997 (42) DRJ 526
24
Mohd.Habib Vs State23
Law
Constitution of Indian
Article 24 ([sate shall] undertake to adopt all necessary measures at the national level
aimed at achieving the full realization
191996 AIR 309, 1995 SCC (6) 194
20(1996) 2 SCC 384
21 (1991) 1 SCC 57
22AIR, 2000 SC 988
231989 Cr.LJ 137 Delhi
25
OUTCOME OF PROJECT
After doing the project we can see that it was essential to have such type of law or
guideline against sexual harrasment and it is really effective nowdays.
CONCLUSION
Sexual harassment at the workplace is a universal problem. Even though the
occurrence of sexual harassment at the workplace is widespread in India and
elsewhere, this is the first time it has been recognised as an infringement of the
fundamental rights of a woman, under Article 19(1)(g) of the Constitution of India to
practice any profession or to carry out any occupation, trade or business.
Of late, the problem of sexual harassment at the workplace has assumed serious
proportions, with a meteoric rise in the number of cases. Surprisingly, however, in
most cases women do not report the matter to the concerned authorities.
In India, Articles 14, 15 and 21 of the Indian Constitution provide safeguards against
all forms of discrimination. In recent times, the Supreme Court has given two
landmark judgments -- Vishakha vs State of Rajasthan, 1997, and Apparel Export
Promotion Council vs A K Chopra, 1999 -- in which it laid down certain guidelines
and measures to ensure the prevention of such incidents. Despite these developments,
the problem of sexual harassment is assuming alarming proportions and there is a
pressing need for domestic laws on the issue.
India is rapidly advancing in its developmental goals and more and more women are
joining the workforce. It is the duty of the state to provide for the wellbeing and
respect of its citizens to prevent frustration, low self-esteem, insecurity and emotional
disturbance, which, in turn, could affect business efficacy, leading to loss of
production and loss of reputation for the organisation or the employer. In fact, the
recognition of the right to protection against sexual harassment is an intrinsic
component of the protection of womens human rights. It is also a step towards
26
providing women independence, equality of opportunity and the right to work with
dignity. Government and employers should ensure that women should be treated
equally and gender discrimination should not take place at the workplace. Effective
implementation of the policies can reduce the manifestation and mutilation of the
sexual harassment to the minimum. One organisation can alter its approach to handle
sexual harassment by viewing other organisations tactic. This will reduce or eliminate
glitches caused by this harmful transgression. Government should understand that
separate laws may not bring about equality in gender relations but a law dealing with
sexual harassment would provide women immense support in their struggle. By
focusing on the implementation of the Vishaka guidelines across sectors, examining
the issue comprehensively through its components of redressal, prevention and
protection, and drawing from experiences and perspectives shared at the Consultation,
the organizers facilitated the process of identifying problems to fill gaps that need to
be addressed by any law combating sexual harassment at the workplace.
In the last 50 years, various international human rights organisations have been
focusing on promoting and protecting women's rights. The United Nations has
acknowledged that womens rights are synonymous with human rights. The same was
reiterated in the Beijing Declaration.
Most international women's human rights movements have raised their voice against
abuse and violence perpetrated against women in general. In 1979, the UN General
Assembly adopted the Convention on the Elimination of all forms of Discrimination
Against Women (CEDAW). Areas where discrimination was found to be rampant
include political rights, marriage, family and employment. The convention emphasised
that discrimination and attacks on a woman's dignity violated the principle of equality
of rights.
A Bill to Prevent Sexual Harassment at the Workplace, 2005, has already been
introduced in the Indian Parliament. Womens groups have begun lobbying with
27
parliamentarians to get it passed as an Act in the winter session of Parliament. For any
sexual harassment law to be successful in India, it is important to be aware of the
difficulties confronting our society and ways to overcome them. We all know that
India is a patriarchal society and most cases of sexual harassment remain unreported.
Women are reluctant to complain and prefer silence due to lack of sensitivity on the
part of Indian society. There is a need to gender-sensitise our society so that the victim
does not feel guilty and is encouraged to report any form of harassment. The victims
privacy must be protected. The police and the judiciary, in particular, also need to be
gender-sensitised. There should be speedy redressal and an increase in the conviction
rate. Women themselves should be made aware of their right to a safe and harassmentfree work environment. The concept and definition of sexual harassment should be
clearly laid down, and the redressal mechanism made known to women in each and
every sector of the economy. Structures and mechanisms should also be created for
women in the unorganised/informal sector to combat SHW. Despite bold judgments
by the Supreme Court, there is no sexual harassment complaints committee at most
workplaces, even in the government sector. The apex court must direct the various
workplaces to form sexual harassment committees within a stipulated time frame.
In any civilised society, it is the fundamental right of people to be able to lead their
lives with dignity, free from mental or physical torture. To ensure this, transgressors
must pay for their unsolicited sexual advances. At the same time organisations such as
Men Against Violence and Abuse, that conduct gender-sensitisation programmes and
self-defence classes to combat sexual harassment at the workplace, must be
encouraged (Sadani, 2003).
To effectively prevent SHW we need both a top-down initiative by the state and
employers and civil society initiatives from citizens' groups, women's organisations
and trade unions.
References (Bibliography)
28
Books
Cases
Articles
Lawmaking beyond Lawmakers: Understanding the Little Right and the Great
Wrong (Analyzing the Legitimacy of the Nature of Judicial Lawmaking in
India's Constitutional Dynamic) by Shubhankar Dam.
29