Vishakha vs. State of Rajasthan is a landmark case dealing with the issue of sexual harassment at the workplace and intended to provide equality and a safe working environment for women. The case acted as the foundation of POSH.
CITATION: (1997) 6 SCC 241
DATE OF JUDGEMENT: 13th August 1997
BENCH: CJI Sujata V. Manohar, Justice B.N Kirpal
RELEVANT PROVISIONS: Article 14, Article 19, and Article 21
FACTS OF VISHAKA CASE:
- The reason for filing this petition was the vicious gang rape of social workers in Rajasthan which revealed the toxic work environment which persists for women.
- This petition was filed as a class action by some social activists and NGOs to prevent sexual harassment in the workplace.
- It is a fundamental right to carry any occupation, trade, or profession but the right highly depends on the availability of a safe working environment. The Right to life embedded in the Constitution of India encompasses the right to life with dignity.
- The fundamental responsibility of guaranteeing such safety and protection of dignity is of the legislature and executive by enacting adequate legislation and setting up a proper mechanism for the same.
- After examining various judicial pronouncements and the relevant Article of the Constitution court opined that gender equality is engrained in the Constitution of India and protection from sexual harassment is main part the of gender equality.
- In absence of any specific legislation, the court under Article 32 has the power to enforce any fundamental rights.
DECISION GIVING CERTAIN GUIDELINES:
The court laid down various guidelines known as “Vishaka Guidelines” which were to ensure the protection of women from any kind of sexual misconduct at the workplace:
All employers or persons in charge of the workplace whether in the public or private sector should take steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
- Express prohibition of sexual harassment as defined above at the workplace should be notified, published, and circulated by appropriate methods.
- The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for penalties in such rules against the offender.
- As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
- Work conditions should be provided regarding work, leisure, health, and hygiene to further ensure that there is no hostile environment towards women at the workplace and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action under the law by making a complaint with the appropriate authority.
In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should be able to seek the transfer of the perpetrator or their own transfer.
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, the employer should initiate appropriate disciplinary action in accordance with those rules.
Whether such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such a complaint mechanism should ensure time-bound treatment of complaints.
The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor, or other support services, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such a Complaints Committee should involve a third party, either an NGO or another body that is familiar with the issue of sexual harassment.
The Complaints Committee must report to the Government department concerned about the complaints and action were taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other appropriate forums and it should be affirmatively discussed in Employer-Employee Meetings.
Awareness of the rights of female employees should be created in particular by prominently notifying the guidelines (and legislation when enacted on the subject) in a suitable manner.
Where sexual harassment occurs because of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
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